December 15, 2018

Society is in every state a blessing, but government…

DENVER, CO - JUNE 16: The TSA security lines in the main terminal are crowded with vacation travelers on June 16, 2013, in Denver, Colorado. Located 25 miles from downtown, Denver International Airport is the largest airport in the United States. (Photo by George Rose/Getty Images)

DENVER, CO – JUNE 16: The TSA security lines in the main terminal are crowded with vacation travelers on June 16, 2013, in Denver, Colorado. Located 25 miles from downtown, Denver International Airport is the largest airport in the United States. (Photo by George Rose/Getty Images)

This thing we call “society,” which Thomas Paine correctly observed is separate and distinct from government, is basically an economic arrangement. The basis of and primary reason for society is people exchanging their various goods and services with each other.

I wonder how many hundreds or thousands of years more it will take for people to realize what should be blatantly obvious: that every set of exchanges in which government is heavily involved, by either subsidizing, regulating (aka “protecting established firms from new competition”), or downright monopolizing it, is painful. All these sectors (education, health care, air travel, etc) share the same characteristics: poor service, no accountability, high prices, incredibly outdated, bureaucratic procedures (paper forms, long lines, etc), and lack of choices or options, just to name a few.

Conversely, every industry in which government has low or zero involvement has precisely the opposite characteristics: constantly lower prices, better and always improving service, absolute accountability (you go to a competitor if you’re not happy), cutting edge technology (phone apps, automated texts, etc) and constantly improving ease of use and convenience.

Anyone not completely blinded by their emotions (mostly envy) can see glaringly obvious cause/effect relationships that lead inevitably to one conclusion:

All advancement in human happiness results from markets and other voluntary cooperation and virtually all human misery is rooted in government.

One would think a light bulb would go on sooner or later for most people and government would be banished from most or all human interaction.

Instead, it’s “Thank you sir, may I have another!” ad infinitum.

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

 

Nullification is Constitutional

The near-showdown in Texas did not break any new ground in the nullification debate. The Texas House of Representatives passed a law that made the touching of genitals or breasts by TSA personnel illegal and punishable by fines and imprisonment. The federal government responded by citing the Supremacy Clause of the U.S. Constitution, together with a threat to cancel all air travel to and from Texas if the law were passed by the Senate and signed by the governor. The Texas Senate backed down. The crisis was averted – for the moment.

For most, attention was probably focused on the threat to close down air travel. Indeed, this would have been a huge crisis, with economic ramifications far beyond Texas. However, the more important issue here is the constitutional one. The federal government states as if it were fact that under the Supremacy Clause “Texas has no authority to regulate federal agents and employees in the performance of their federal duties or to pass a statute that conflicts with federal law.” Does the Supremacy Clause really say this? Let’s take a look. It says,

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

For those not familiar with the Constitution, that’s it. There are no further provisions explaining what is meant. There is no list of definitions of the various words, as one might expect to find in a contract today. Whatever “supremacy” the federal government claims to have must be found in this one sentence.

Perhaps a fast read might lead one to believe that the last section of this clause settles the question definitively. It says that the judges in every state shall be bound be federal laws “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” End of debate, right? The Texas law conflicts with the federal law, so the federal law trumps it. This is what the federal government would like you to accept – without question.

There is only one problem for the Feds. Their interpretation of the “Supremacy Clause” is based completely on the last section of this one-sentence provision and entirely ignores the first. One would think that if they were going to cite this clause, then reading the entire sentence would be a reasonable expectation.

So what exactly is “the Supreme Law of the Land?” Any law passed by the federal government? That’s not what the Supremacy Clause says. It says that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof” shall be the supreme law of the land.

Note the word “and.” There are two separate and distinct things cited as the supreme law of the land. First, “this Constitution.” That means that the terms and conditions of the Constitution itself, together with any amendments made to it, are the supreme law of the land. Therefore, anyone violating any part of the Constitution, including its amendments, would be violating the supreme law of the land.

Next, take note of the description of the federal laws which shall possess this supremacy. They must be “pursuant to” the Constitution itself. This means that the federal law in question must have as its basis a power granted to the federal legislators. The Constitution, for the most part, grants powers rather than makes specific laws. It tells the federal government which type of laws it may pass. It may not pass any laws for which it has not been granted the necessary power to do so. To eliminate any possible confusion on this point, the framers added the Tenth Amendment. It states:

“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.”

Many well-meaning citizens and not-so-well-meaning federal legislators think about the Constitution in a backwards manner. They assume that unless the Constitution forbids the federal government from exercising a particular power, then the federal government may exercise that power. Exactly the opposite is true. The starting point of ones reasoning should be that the federal government may pass no laws whatsoever. Then, Article 1 Section 8 provides the sole exceptions to that general rule. Only laws which exercise powers specifically delegated in that list may be passed.

However, the argument against the TSA does not rely upon employing this reasoning, because the activities of the TSA not only constitute powers not delegated to the federal government, but powers forbidden to the federal government by the Constitution itself. The Fourth Amendment states,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

One could argue that the mere presence of the word “unreasonable” is enough to prohibit the touching of genital areas during a search. If that is not unreasonable, then what is? Dissection? However, the last part of this amendment makes any debate about what is reasonable unnecessary. It says that in order for the government to conduct a search of anyone’s person, house, papers, or effects, there must be a warrant “supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This means that the government may not search everyone who comes through an airport. In order for them to search anyone at all, there must be probable cause that the person has already committed a crime. Does this mean probable cause in the opinion of the person conducting the search? No. An impartial judge must determine that there is probable cause and issue a written order (a search warrant) confirming that probable cause and naming the specific person to be searched and the specific items that the search will be conducted to find. Only then may an officer of the federal government search an air traveler.

Therefore, the laws authorizing the TSA to search everyone who wishes to board an airplane are in direct conflict with a specific provision of the Constitution. In other words, they violate the Supreme Law of the Land.

Now, when someone breaks a law, they are subject to arrest and prosecution. That raises the question: Who has the power to arrest and prosecute federal legislators or officers who pass and enforce a federal law that violates the Supreme Law of the Land? That power is not delegated to Congress nor the Executive. The Judiciary is only empowered to hear cases arising “under the Constitution,” and to adjudicate controversies regarding “the Laws of the United States.” No one is disputing that the TSA personnel are following the federal law – it is the law itself that is disputed.

Contrary to popular belief, there is nothing in Article 3 of the Constitution that empowers the federal judiciary to decide whether or not a law is “constitutional.” They merely usurped that power early on, to the repeated and valid objections of anyone with an honest concern for liberty, beginning with Thomas Jefferson and James Madison – the latter being the man who actually drafted the Constitution in the first place! Both of these men and many others afterwards have recognized the clear absurdity of allowing any party to be a judge in its own case. That is one of the fundamental reasons cited for man leaving the state of nature and forming government in the first place.

The constitution provides clear direction on where power lies if it is not expressly delegated to the federal government – with the States or the people. The power to arrest and prosecute those who pass and carry out laws in violation of the Superme Law of the Land is not delegated to the federal government. Therefore it must reside in the States or the people. Nullification is constitutional. Let justice be done.

For more information on the history of state nullification of unconstitutional federal laws, get Tom Woods’ book, Nullification: How to Resist Federal Tyranny in the 21st Century here!

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

Liberty Is An Absolute

unalienable“Our legislators are not sufficiently apprised of the rightful limits of their powers; that their true office is to declare and enforce only our natural rights and duties, and to take none of them from us. No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him.”

– Thomas Jefferson (1816)[1]

Over the past week I’ve made two round trip flights by air, which means I’ve had the distinct pleasure of passing through airport security four times in seven days. It may be my imagination, but I believe our friendly neighborhood TSA officers are getting more authoritarian. While the officer at the podium still exhibits call center courtesy, those charged with seeing people negotiate the canvass rope maze and show up with their license and boarding pass ready have taken to shouting orders, as if managing a chain gang. This characterization isn’t far from the truth. However, I don’t really blame the officers personally that much. Their job is to get people to act in a completely unnatural manner, partially disrobing in a crowded room full of strangers just for starters. With the exception of frequent travelers, no one is ever going to do it right.

So, as the days go by and thousands of new travelers shuffle in and forget to have their licenses ready, forget to take their suntan lotion out of their carry on, try to go through the metal detector with their jackets on, and do a thousand other things that innocent people would never think twice about doing, the frustration must build with these foot soldiers in the War on Terror. “I just told you yesterday that you can’t bring liquids through security!” they must think, forgetting that the little old lady they are snarling at today is not the same little old lady from yesterday, or the day before, or the day before that…

However, my sympathy does not go so far as to let me forget what is happening each time I remove my shoes and render my person, papers, and effects insecure against unreasonable searches. Regardless of the chirpy greeting by the uniformed agent with the infrared flashlight or the bizarre signs attempting to characterize this shakedown as some type of customer service (Rather be molested in private? Just ask…), I always remember what is really going on: I am being investigated for a crime.

There is no probable cause, no writs, no warrants sworn by oath or affidavit. In fact, for the 90-year-old gentlemen in front of me who just put his cane through the x-ray machine and is now holding onto the glass wall as he tries to stumble through the metal detector without it, there is no scenario that any reasonable person could imagine where he would or could harm anyone. Yet he is a suspect, too.

Most sane people who observe spectacles like this immediately conclude that law enforcement is going too far. Surely, there must be a better balance  between liberty and security. But in thinking this they have already made an error. When it comes to liberty, there can be no balance. Liberty abides no compromise. Liberty is an absolute.

For generations, Americans have been conditioned to believe that there are no absolutes. The truth is always the synthesis of the extremes and compromise is the supreme virtue. These ideas proceed from the “intellectual class” that dominates our education system – a breed that long ago abandoned reason for the Hegelian confusion that allowed them to embrace communism. It is from this quarter that the spurious arguments against liberty proceed. “Absolute liberty is anarchy” or “you must balance liberty with the needs of society” or Bill Clinton’s infamous “When personal freedom’s being abused, you have to move to limit it.” All of these arguments are groundless. Those who make them don’t know what liberty is.

Today, what we used to call “liberty” has been given a sterile, quasi-clinical 20th century name by its most fervent proponents. We now call it “the Non-Aggression Principle.” This is by no means inaccurate, but hardly as poetic or stirring to the soul as Liberty. While it is useful in making arguments (I do so myself all of the time), I often wonder if this name allows people to relegate this most sacred of rights to the small libertarian and objectivist constituencies who champion it. It is much easier to say “there are more important things than the Non-Aggression Principle” than “there are more important things than Liberty.” Nevertheless, Liberty and the Non-Aggression Principle are one and the same.

The passage from Jefferson is not meant to suggest that it originated with him or our founders. They got it from Locke, who developed his ideas from ancient sources. As Locke said, men are naturally in “a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature.”[2] The natural right to liberty is absolute within a natural limit: the law of nature. What is this law? The law of nature is reason, which “teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.”[3]

Thus, a state of absolute liberty “is not a state of license.”[4] People exercising their right to liberty do not have an unqualified right to do whatever they wish, regardless of the consequences. There is a clear and unambiguous limit to even what a person in an absolute state of liberty may do. He may do anything that he wishes as long as he does not harm another in aggression, which he absolutely may not do.

Therefore, it is just more politicians talking gibberish when we hear arguments for more or less liberty or balancing liberty with security. Liberty does not conflict with any proper functions of government. When there is conflict between government and liberty, it is always government that’s wrong. Most importantly, as our founding document clearly states and reason demands, liberty is an unalienable right. It is for no one to limit, regulate, or balance with anything. The minute that any limit on human action is put in place beyond “the bounds of the law of nature,” liberty has ceased to exist. One is either free or not free. You cannot enslave someone a little.

Once liberty is properly understood, there are a few conclusions that one can draw about the purpose of government. First, government cannot at the same time secure the right to liberty and prevent crime. The minute government acts before a crime has been committed, it has destroyed liberty. Since they have committed no aggression, those restrained by a government crime prevention policy should be free to do whatever they choose, but are not.

To preserve liberty, government may only prosecute and punish crimes after they are committed, except in those rare instances when a law enforcement officer happens to be at the scene of a crime as it is taking place. Even military action is something our founders understood was only justified when a state of war already existed, which I wrote about in more detail in an article last year. That is why they granted Congress the power to declare war. To declare something presupposes it already exists.

An understandable first reaction to this idea is that in order to be free we must offer ourselves up as sitting ducks to criminals and foreign armies, only justified in responding after the damage has been done. This is refuted by the second conclusion one must draw from understanding liberty: that each individual has not only a right but a responsibility to defend himself. While this may sound frightening, it isn’t. This is really the only choice you have, whether you live in a free society or not. In all but the rarest of cases, the government simply is not there at the moment you are attacked. You must defend yourself the best that you can and try to survive. Only afterwards can the law come to your aid. This is why liberty and the right to bear arms are inseparable from one another.

In addition to destroying your liberty, crime prevention will always fail. A just law is one that prohibits aggression, like the law against murder. Once an aggressor has decided to violate this just and natural law, he is certainly not going to be dissuaded by some societal rule of conduct attempting to prevent him from having the opportunity to commit the real crime. He will simply break that law, too, as do so many murderers when they use illegal firearms to commit their crimes. Only the innocent are punished by attempts to prevent crime. They either follow the unjust law and surrender their liberty or are unjustly punished while committing no aggression.

This inevitable failure leads to the most ominous aspect of government’s misguided attempt at crime prevention: its equally inevitable expansion. With each new failure, the preventative measures must be increased in intensity to prevent further failure. The actions of all must be more and more limited until all opportunity to commit a crime is eliminated, which is impossible even under martial law. So, it is a steady march onward, with a police state the only logical end. Each new failure in the war on drugs or the war on terror takes us another step down that road.

Life in a state of liberty is not perfect. It makes no guarantees, other than the opportunity to pursue your happiness. You may prosper or you may be poor. You may be safe or you may come to harm. Chance will certainly have some effect on your life. We all deal with unexpected circumstances we cannot control, both good and bad. But liberty gives you the ability to act upon those things in life you can control, in the way you believe will be best for you and those you care about. Without liberty, you can control nothing and it is only a fool who believes any government can guarantee he will never be poor or never come to any harm. There is only one thing that life without liberty does guarantee: you will never truly be able to pursue your happiness. Robbed of that, why live at all?

[1] Jefferson, Thomas Letter to Francis Walker Gilmer June 7, 1816
[2] Locke, John Second Treatise of Government Hackett Publishing Company, Inc. Indianapolis, IN (1980) Pg. 8
[3] Locke, John Second Treatise of Government Hackett Publishing Company, Inc. Indianapolis, IN (1980) Pg. 9
[4] Ibid

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.