Glibertarians.com 2017 Archive

Category: Federal Power

  • Horace Flack – The state official whose scholarship pressured the states to obey the Bill of Rights (with Southern Gothic backstory)

    By: The Fusionist

    On April 27, 1947, the Baltimore Sun profiled Horace Edgar Flack, “a placid, unassuming, kindly doctor” – meaning he had a Ph.D. from Johns Hopkins in political science. As head of the Department of Legislative Reference for both Baltimore and for the entire state of Maryland, Flack helped draft bills for the lawmakers and gave them information about similar legislation in Maryland and in other states. Flack had been described as “a walking encyclopedia” – “If you want a bill drawn up on any subject, he can oblige in about fifteen minutes, provided the matter is not too complicated. If it is complicated, it takes a few minutes longer.” Flack was so indispensable that “[w]hen he leaves the Department of Legislative Reference for even a matter of minutes, the business of lawmaking all but comes to a standstill.” His staff credited him with drafting eighty percent of the state’s laws since he took the job thirty years before.

    (Insert libertarian joke about taking Flack on a long, relaxing Caribbean cruise)

    Flack and his wife shuttled between Baltimore and – when the legislature was in session – Annapolis. In both places, Flack’s office desk was “[n]ever piled higher than six inches with a remarkable assortment of papers[.]” The desk “is all but buried by the end of a legislative session.” Yet Flack could “put his hand into the heap and come up with any desired document with unerring accuracy.”

    No wonder state politicians were anxious as Flack, who had been born in 1879, neared the mandatory retirement age: “The thought of his impending retirement two years hence causes shudders among Maryland officials, who are sure there will never be another like him.”

    The readers of this laudatory article wouldn’t know of the old civil servant’s family difficulties as his daughter became estranged from her soldier-husband – a war hero who had perhaps been spending more time in French territory than was compatible with maintaining family life. Not to mention that within two months of the article, Horace Flack was going to become even better known to members of the legal establishment throughout the country. This time, he would not be known as a facilitator of new state laws, but as a potential obstacle to them. A scholarly paper he published as a young man, arguing that the states had to obey the Bill of Rights, was about to get drawn into a debate over the relationship between state power and individual liberties.

    These were heady times for a man the Baltimore Sun said “has been called…‘the greatest man that ever came out of the hillbilly country of North Carolina.’” Now, Flack had never fully “come out” of rural Rutherford County in the southwest of the Tarheel state. Horace owned the ancestral farm (formerly co-owned with his late brother Roswell, a physician) and visited the farm when he could screw Tom Wolfe. What Horace had left behind in North Carolina was a fairly shocking family secret which went back half a century.

    While Horace Flack was growing up, his family were small farmers and not often well-rewarded for their exhausting labor. Horace’s father Millard reportedly told a nephew “you can continue to raise cotton if that is what you want to do, but I never expect to plant another cotton seed as long as I live.”

    Millard Flack certainly did not plan for his son Horace to be a farmer. Making what must have been a considerable sacrifice, Millard sent Horace to Wake Forest College (now Wake Forest University) in Winston-Salem, NC. (Horace’s brother Roswell also pursued higher learning at this time).

    Horace’s uncle, Mills Flack, was more enthusiastic about the farming life, but did not like the economic decline of small family farms like his, a phenomenon for which he blamed sinister plutocratic forces (“Shylocks”). Mills Flack served in the North Carolina legislature in the 1890s, during a brief interval during which agrarian Populist radicals like himself combined their votes with the votes of black Republicans to displace the Democrats and set up a Populist/Republican “Fusion” government.

    At Wake Forest, Horace joined the Euzelian literary society, one of two such societies to which students were required to belong. The literary societies, rather than the faculty, punished student misconduct such as “trampling the grass…spitting on floors of chapel and classrooms and halls, and library, or keeping firearms, or throwing water from the windows.”

    The Euzelian society and its counterpart, the Philomathesian society, conducted regular debates. The topic in February 1900 was “Resolved: That England was not justified in making war upon the Boers.” Flack took the negative, apparently meaning that he argued England was justified in fighting against the white farmers who ran the Boer Republics in South Africa (I haven’t read Flack’s paper but it’s in Wake Forest’s archives).

    Speaking of giant power-hungry entities trying to absorb white farmers…the Democratic Party in 1900 resolved to completely destroy the Fusion coalition and establish a political monopoly. The Democrats did this by proposing a state constitutional amendment to disenfranchise large numbers of black voters, without whom nothing stood in the way of a solid Democratic majority. Democrats harped on White Supremacy, and the disenfranchisement amendment passed, securing one-party Democratic rule for several decades. In the wake of the excitement of the White Supremacist agitation in Rutherford County, there was a murder and a lynching, and Horace Flack’s uncle Mills Flack was at the center of it.

    Mills Flack had a dispute (over peaches) with a black sharecropper or tenant, Avery Mills, and the tenant’s wife, Raney. Avery Mills threw a rock, Mills Flack shot Avery Mills and tried to take Avery Mills’ gun, and Avery Mills fatally shot Mills Flack. A lynch mob making up about a quarter of the local population (by the widow Raney Mills’ estimate) took Avery Mills out of police custody and killed him. The only person convicted in the affair was Raney Mills, who was promptly pardoned. Mills’ family tradition says there were warrants out for two of the alleged lynchers – sons of Mills Flack, and therefore cousins of Horace Flack. According to tradition, the cousins hid out for a time until the authorities seem to have lost interest and dropped the matter. Some of the lynchers seem to have had second thoughts when they realized that Mills Flack had fired the first shot, but by then the deed was done.

    Young Horace left North Carolina, leaving his family’s scandal behind. He went north, but not beyond the Mason-Dixon Line. He became a graduate student at Johns Hopkins in Baltimore, Maryland, studying political science. The political science department at the time was one man, Westel Woodbury Willoughby. Professor Willoughby suggested a couple research projects for Flack to work on.

    The first project, published in 1906, was about the recent Spanish-American war. Flack was skeptical about the American justification for the war, which had been based in part on alleged atrocities the Spaniards committed in fighting a Cuban rebellion. Flack said that the Northern forces committed atrocities against the South during the Civil War, and European powers wouldn’t have been justified in interfering on such grounds. “War is bad at its best, and when it assumes its worst form, General Sherman’s definition [of war as hell] does not seem inappropriate.”

    Willoughby’s next assignment for Flack was a study of the origins of the Fourteenth Amendment, a key U. S. constitutional provision pushed through by Northern Republicans after the Civil War. Willoughby was working on a book about U.S. constitutional law and probably wanted to commission a study which would help with his own work. It was a delicate project for Flack to undertake, since if black lynching victims received “equal protection of the laws” as the Fourteenth Amendment required, some of Horace Flack’s relatives would probably be in prison or hanged.

    But Horace Flack applied himself to his task, looking up old Congressional debates from the Reconstruction era when Northern Republican politicians, like Congressman John Bingham, discussed their ideas for constitutional protection of the freed slaves and Unionist white Southerners in the former Confederate states. Flack’s conclusion: The history of the debates on the 14th Amendment showed a purpose to make the states obey the first eight amendments to the Constitution – the “Bill of Rights” (possibly minus the 9th and 10th amendments). The privileges and immunities of American citizenship – protected by Section One of the Fourteenth Amendment – included the rights in the first eight amendments. If anything, Flack’s research did not go far enough – there was no Internet in those days, so Flack missed some key newspaper articles of the Reconstruction era agreeing with the interpretation Flack was advancing.

    Flack’s book, The Adoption of the Fourteenth Amendment, did not exactly cause a big splash at the time. In the same year the book was published – 1908 – the U.S. Supreme Court issued a key decision, consistent with earlier precedents, that  only a few parts of the Bill of Rights are applied to the states on an arbitrary, feelz-based basis. Most of the rights in the Bill of Rights – in the 1908 case, the freedom from self-incrimination – were simply optional on the states, which could ignore them if they wanted. Likewise with the right to trial by jury, in civil and criminal cases, and the right to have one’s case heard by a grand jury, and some other rights – the states could observe these rights or ignore them, based only on their own constitutions.

    But having completed his doctorate, Flack now had to find work. While he had thought about working in North Carolina, he changed his mind when he met Edith Henning, a Baltimore belle whom he married, and he decided to make Maryland his home. The city of Baltimore had just created a Department of Legislative Research to provide nonpartisan assistance to local lawmakers, and Flack was the first person appointed to this new position – and there wouldn’t be another appointment for almost fifty years.

    Based on his experience, Flack wrote a paper for the American Political Science Association, singing the praises of legislative reference bureaus like his. Private interests had their staffs of lobbyists who researched and drafted bills to benefit their clients, and then tried to get the legislatures to pass such bills. Shouldn’t the public be served by draftsmen researchers with no allegiance except to the common good? Such draftsmen and researchers should have long terms of service to give them experience and provide for developing good institutional memory. Other states were using reference bureaus, to good effect. It was just a matter of hiring good people for these positions and then letting them do their jobs.

    The Maryland legislature got the hint and appointed Flack as the head its own legislative reference bureau. Now Flack was working for both Maryland and the city of Baltimore.

    An outside project Flack did in 1920 might have given him a chance to get some influence on the Supreme Court, but it doesn’t seem to have worked that way. Former President William Howard Taft, a leader of the prestigious League to Enforce Peace which sought to avoid another world war, published a volume of his writings and speeches about peace, and Horace Flack was one of the editors of the project. Taft was a supporter of the League of Nations, just like President Woodrow Wilson and the Democratic Party in general. The Republican candidate for President, Warren Harding, didn’t like the League, which the U.S. Senate had rejected. The ambitious Taft wanted to be Chief Justice, a job no Democrat would give him, so he threw his support behind Harding with some pious hopes that Harding would end up being for the League. That didn’t happen, but in 1921, Harding made Taft the Chief Justice of the United States. But if Flack had been in touch with Taft about Flack’s Fourteenth Amendment book, Taft gave no sign of it, focusing his constitutional jurisprudence on the protection of strictly economic rights while being wishy-washy and vague on applying the Bill of Rights to the states (Taft’s colleagues indicated that freedom of speech and the press might apply to the states, after first denying that they did).

    In the 1930s, Flack spoke to Parent-Teacher associations about education and to the League of Women Voters about voter registration and voting machines. When the 1935 legislature adjourned, the Baltimore Sun ran an admiring article about how Flack and his staff spent five days, together with near-sleepless nights, making sense of the legislature’s work and organizing it for publication. Horace Flack was circulating in highly respectable circles – he had gone far for a country boy.

    Flack even earned a mention in the New York Times – via the social pages – when his daughter Marialice married Lieutenant Lee Carl Miller on October 14, 1936.

    The following day, October 15, a jury in Connecticut convicted Frank Palko of first-degree murder for killing two police officers during a robbery. Earlier in the year, a jury had rejected a first-degree verdict and convicted Palko of second-degree murder for the offense. A state appeals court ruled that the trial judge had made errors in Palko’s favor, warranting a new trial. This sort of procedure was unusual – most jurisdictions, including most states and the federal courts, hold that once a jury refuses to convict on a charge, the defendant cannot be retried on that charge. After Palko got a death sentence at his second trial, Palko’s lawyer, David Goldstein, took the case to the U. S. Supreme Court, claiming that Palko’s second conviction violated the constitutional right not to be subject to “double jeopardy” for the same crime.

    Goldstein discovered Flack’s book on the Fourteenth Amendment, and relied heavily on the book in his Supreme Court arguments. Goldstein referred to The Adoption of the Fourteenth Amendment as “a scholarly document which, to counsel’s knowledge, has not hitherto been called to the court’s attention.” If the Bill of Rights applied to the states, via the Fourteenth Amendment, then Frank Palko had been subject to unconstitutional double jeopardy.

    Goldstein’s argument didn’t work. The Court, which had already taken a lot of grief from New Dealers and progressives for overturning “democratically enacted legislation,” wasn’t going to take such a radical step as to force the states to obey the Bill of Rights. Sure, there were a few provisions of the Bill of Rights which were important to “ordered liberty” – free speech, free press, and the right to just compensation – and those parts of the Bill of Rights applied to the states. But other parts of the Bill of Rights were not so fundamental: jury trial, the right against self-incrimination, and the right not to be subject to double jeopardy. Palko was executed. Justice Hugo Black had apparently learned about Flack’s book from Goldstein, and began to ponder the work.

    Meanwhile, the forces of organized do-goodery in California were chipping away at another right in the Bill of Rights. The district attorney of Alameda County, an ambitious fellow named Earl Warren, got several “law ’n order” measures on the 1934 ballot, including a provision that if a criminal defendant failed to take the stand in his own defense, the prosecutor could use the defendant’s silence as an argument in favor of guilt, never mind the Fifth Amendment right not to incriminate yourself. Warren’s measures were supported by civic groups and the press. The Sausalito News said that the self-incrimination provision would mean “a better administration of criminal law.” The self-incrimination provision and the other ballot measures easily passed by two to one margins, becoming part of the California constitution.

    California prosecutors had the chance to use this self-incrimination law against an alleged murderer named Dewey Adamson. Adamson was accused of breaking into the house of a Los Angeles widow and beating and strangling her to death. After the prosecution gave its case, Adamson said nothing and produced no witnesses – Adamson had a criminal record which would have been brought up if he’d testified. Summing up to the jury, the prosecutor taunted Adamson by saying “it would take about twenty or fifty horses to keep someone off the stand if he was not afraid.” Adamson was convicted and sentenced to death. Adamson’s lawyer claimed that California had violated the right against self-incrimination, and that this right was binding on the states via the Fourteenth Amendment.

    Up to the U.S. Supreme Court the case went, just as personal feuds and antagonisms among the Justices were sharpening their philosophical differences.

    The Justices were all New Deal progressives, appointed by the late Franklin Roosevelt to purge the Constitution of federalism and economic freedom in the interest of a federal welfare/warfare state. But having put that triumph under their belts, the Justices were split into quarrelling factions, having bitter catfights with each other.

    One faction was associated with Felix Frankfurter, shown here, oops I mean here, no, seriously folks, here.

    Frankfurter was a zealous New Dealer from before there even was a New Deal. As a Harvard professor, he had supplied advice and personnel to the Roosevelt administration. He took judicial progressivism to its logical conclusion: Frankfurter believed that, having killed off economic rights by agreeing to the laws the majority wanted, it was time for the Supremes to defer to all parts of the democratic process. Why should noneconomic rights, like the stuff in the Bill of Rights, be considered more important than economic rights? These issues should largely be left to the voters and their elected representatives except in extreme cases where (as assessed by Frankfurter) the democratic process went Too Far. But at the state level, violating the Bill of Rights was not, in and of itself, Too Far. States should be free to experiment with such “reforms” as abolishing juries and grand juries, allowing the prosecutor to appeal acquittals, and compelling suspects to incriminate themselves.

    The other faction was associated with Hugo Black, a former Alabama Senator who had developed a genuine attachment to some civil liberties. Black agreed with Frankfurter that the courts should not protect economic liberties, but where non-economic rights were concerned, Black thought the way to preserve freedom was to uphold the entire Bill of Rights against the states, not just a few selected parts of the Bill of Rights. Focusing on the first eight amendments would keep the courts from being arbitrary in picking and choosing which freedoms to value.

    Black had been researching the intent of the Fourteenth Amendment, relying to a great extent on Flack’s research. The Adamson case provided an opportunity for Black to show his conclusions. Black found three other Justices to agree with his view that the states had to obey the Bill of Rights.

    The other five Justices were not impressed. On June 23, 1947, the Court decided that, whatever Black’s research might say, the precedents were against the Bill of Rights. The states didn’t have to respect the right against self-incrimination. Adamson was executed.

    Despite his victory, Frankfurter was dissatisfied. Outvoting Black was not enough, Black had to be attacked and refuted on a scholarly level. Frankfurter, not Black, was supposed to be the intellectual leader of the Court. Frankfurter was the learned scholar, the ex-Harvard professor. Black was some hick cracker who was simply too dumb to appreciate good scholarship if it bit him on the ass. If only one of Frankfurter’s former students could step up to the plate…

    Fortunately, a friend and ex-student of Frankfurter’s did precisely that, apparently without any prompting from the Justice. Professor Charles Fairman of Columbia Law School was just starting up his school’s law journal. What a great venue to highlight a scholarly rebuttal to Black…and of course to Flack.

    Naïve as he was, Flack had believed that it would be Southerners who would object to the implications of his scholarship, which gave a broad interpretation to the Fourteenth Amendment which the Southern leadership had tried to prevent being passed in the first place. Flack did not anticipate that certain highly-placed Northern progressives would in effect put on their Confederate flag trucker hats and raise the biggest stink about Flack’s work.

    Fairman lacked Flack’s respect for the framers of the Fourteenth Amendment. To Fairman, as to Frankfurter, the Reconstruction Republicans were vindictive fanatics who needlessly antagonized the South. To Fairman, the Northern Republicans’ Southern allies under Reconstruction consisted of “the Negroes, the carpetbaggers…and a few long-suffering Southern Unionists – a combination which was weak, inexperienced, often corrupt.” (And Frankfurter showed his sympathies when he referred to the “vengeful spirit which to no small degree envenomed the Reconstruction era.”)

    In his 1949 article, Fairman dived into his defense of Frankfurter…with relish. Coincidentally, Fairman found exactly what he thought he would find: historical evidence backing up Frankfurter’s views. The Fourteenth Amendment was never meant to apply all of the Bill of Rights to the states. The true meaning of the Amendment was vague, which as Fairman later explained, meant that it was up to the federal courts to work out the details of what the states could or could not do.

    The bottom line for Fairman was that Flack’s scholarship was no good, and Black had embarrassed himself by relying on Flack’s work.

    In 1948, Flack’s statutorily-mandated retirement was approaching – he would reach the retirement age of 70 in 1949. Governor William P. Lane, Jr., wrote to the state Attorney General, asking for legislation to allow Flack to stay in office beyond 1949. “Knowing the esteem in which Dr. Flack is held by all of those who come in contact with him on official business of the state,” the governor wrote, “I am sure the General Assembly will give this proposal favorable consideration.” The mayor of Baltimore likewise wanted to keep Flack in his city position.

    In 1949, the same year as Fairman’s article skewering Flack as a scholar, the Maryland legislature passed a law which the governor cheerfully signed, allowing Flack to serve past the normal retirement age.

    After three more years’ service in office, Flack had a heart attack and a stroke in 1952, putting an end to his career. After four years in retirement, he died in 1956. He is buried in his native Rutherford County.

    The Supreme Court has yet to accept Flack’s conclusions about the Bill of Rights, reinforced as those conclusions have been by subsequent scholarship. While adhering to the pick-and-choose philosophy, the Supremes have decided to apply a few more Bill of Rights provisions to the states, such as double jeopardy and self-incrimination – though it was a bit too late for Palko and Adamson. In 2010, the Supremes applied the Second Amendment to the states, over voluble progressive protest. Other rights, like civil juries and grand juries, are still up to the states to observe or not, at their discretion.

     

    Works Cited

    Richard L. Aynes, Charles Fairman, Felix Frankfurter, and the Fourteenth Amendment – Freedom: Constitutional Law, 70 Chi.-Kent. L. Rev. 1197 (1995).

    Available at: http://scholarship.kentlaw.iit.edu/cklawreview/vol70/iss3/10

    “The Ballot Propositions,” Sausalito News, No. 43, Oct. 26, 1934, http://bit.ly/2mL5xgK

    1. Timothy Cole, The Forest City Lynching of 1900. Jefferson, NC: McFarland, 2003.

    Richard C. Cortner, The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties. Madison: University of Wisconsin Press, 1981.

    Ed Cray, Chief Justice: A Biography of Earl Warren. New York: Simon and Schuster, 2008, p. 72.

    “Dr. Flack Finally Finds Out Just What Assembly Did,” The Baltimore Sun, Apr 7, 1935, p. 9.

    “Dr. Flack To Address League: Women Voters to Hear Talk On A Permanent Registration And Voting,” The Baltimore Sun, Nov 22, 1936, p. SC17

    “Dr. H. E. Flack, Ex-Law Data Chief, Dies: Linked with Government Machinery in City from 1907 to 1952,” The Baltimore Sun, Jun 27, 1956, p. 38.

    “Dr. Horace E. Flack; A Capable State and City Official,” The Baltimore Sun, Jan 1, 1943, p. 12

    “Dr. Horace E. Flack To Speak,” The Baltimore Sun, May 19, 1933, p. 9.

    Entries for Horace Edgar Flack and his various relatives, findagrave.com.

    Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding,” Stanford Law Review, Vol. 2, No. 1 (Dec., 1949), pp. 5-139.

    Noah Feldman, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices. New York: Twelve, 2010.

    Horace Edgar Flack, The Adoption of the Fourteenth Amendment. Baltimore: The Johns Hopkins Press, 1908.

    ________________, “Resolved: That England was not justified in making war upon the Boers” . Anniversary speech, Negative. Jr. Thesis, (Feb. 16, 1900. 1900.), Wake Forest Archives, Junior and Senior Theses Record Group, see https://wakespace.lib.wfu.edu/handle/10339/28081

    ________________, Flack, Horace Edgar.  “Resolved: That the South Carolina Dispensary System is Unwise”. Speech and Sr. Thesis for Master’s Degree. (1901.) Wake Forest Archives, Junior and Senior Theses Record Group, see https://wakespace.lib.wfu.edu/handle/10339/28081

    ________________, “Scientific Assistance in Law Making,” The Proceedings of the American Political Science Association, 1913-1914, pp. 215-221.

    ________________, Spanish-American Diplomatic Relations Preceding the War of 1898. Baltimore: The Johns Hopkins Press, 1906.

    “Flack, Horace Edgar,” in Who’s Who in America, vol. VII, 1912-13, Chicago: A. N. Marquis, p. 707.

    Carol Forbes, “Business: Looking Up,” The Baltimore Sun, Apr 27, 1947, p. SM6.

    “Horace E. Flack, PH.D.,” in History of North Carolina: Volume VI: North Carolina Biography. Chicago: Lewis Publishing Company, 1919, pp. 332-33.

    Lewis L. Gould, Chief Executive to Chief Justice: Taft Betwixt the White House and the Supreme Court. Lawrence: University Press of Kansas, 2014

    “Lee C. Miller 1934,” http://apps.westpointaog.org/Memorials/Article/10021/

    “Legislative Council Honors Dr. H. E. Flack, Veteran Aide,” The Baltimore Sun, Dec 31, 1942, p. 5

    “Legislative Unit Nears End of Task,” The Baltimore Sun, Dec 6, 1940, p. 6.

    Maryland Manual 1950, Volume 163, p. 160t, http://aomol.msa.maryland.gov/000001/000163/html/am163–160t.html

    Maryland Session Laws 1949, Chapter 19, March 4, 1949, pp. 20-21, online at http://aomol.msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000001/000590/html/am590–20.html

    Louis [sic?] J. O’Donnell, “Printer May Have Dropped Lost ‘Streetcar’, Flack Says,” The Baltimore Sun, Feb 1, 1946, p. 26.

    “MillerFlack,” New York Times, October 15, 1936.

    NC Executions, 1901-1930, http://deathpenaltyusa.org/usa1/state/north_carolina2.htm [execution was by hanging until 1910, when the method switched to electrocution]

    Thomas J. O’Donnell, “School Fund Bill’s Origin Still Veiled,” The Baltimore Sun, Jan 21, 1947, p. 30.

    George Washington Paschal, History of Wake Forest College, Volume II: 1865-1905. Wake Forest, NC: Wake Forest College, 1943.

    William Howard Taft (Theodore Marburg and Horace Edgar Flack, eds.) Taft Papers on League of Nations. New York: MacMillan, 1920.

    Bryan H. Wildenthal, “Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67,” 68 Ohio State Law Journal 1509 (2007).

    Westel Woodbury Willoughby, The Constitutional Law of the United States, Vol. I. New York: Baker, Voorhis and Company, 1910, pp. 175-76.

    “Would Retain Dr. H. E. Flack: Lane Wants Him Kept After He Reaches Retirement Age,” The Baltimore Sun, Dec. 12, 1948, p. 22.

  • When the Iron Laws Turn on Regulators

    The aggressive attempts by the Trump administration to dismantle one of their perceived political enemies’ power bases by the same “pen and phone” Executive Order fiat that substantially built that base is a fascinating example of RC Dean’s Iron Laws at work. Somehow the step-children of the Republican Party, the wallflowers too ugly to get asked to dance, ended up miraculously winning many a geek’s high-school fantasy. Nearly unlimited power and no reason not to take it out on their enemies. What happens when the people running the Executive Branch decide that the rank and file of many of the agencies they administer are the enemy?

    Well, you start by naming other Republican misfit/misanthrope types to run several departments that you believe are hostile to your cause. Putting an O&G guy in charge of the State Department, a Federalist in charge of the EPA, a voucher advocate in charge of the Department of Education, a black brain-surgeon who thinks that public housing stints should be brief in charge of HUD, and a man who once couldn’t even be bothered to remember the name of the Department of Energy (but knew he wanted to cut it) to direct it. Whoever is pulling the strings in the Trump administration, they did an excellent job of putting “qualified” individuals at the helm who wanted to wreck the progressive agenda that the type of people who use the words “Deep State” believe these agencies promote.

    After you finish setting out to sow confusion in the board room, you move on to proposing that a bunch of the rank and file (especially in departments you perceive to be most hostile) no longer work for you:

    He’s worried about the administration’s proposed 37 percent cut to the State Department, which he says would put U.S. diplomats serving abroad at risk.The Environmental Protection Agency, the Energy Department, the Commerce Department and the Department of Housing and Urban Development are also facing steep cuts. Foreign Policy reported Monday that the administration wants to cut funding for United Nations programs by 50 percent to 60 percent.

    But everyone knows that the type of middle-manager who carves out their own little bureaucratic fiefdom and burrows in like a tick on a dog is going to avoid falling to those cuts. They have to keep their job because they are the Deputy Assistant Director for Left-Handedness in Prairie Voles and that exists on an org chart, so they can’t be fired because who would direct that work? Anyone who has worked for a giant organization that has experienced organic growth knows that the only way to get rid of that type of person is a reorg. Oh wait, did someone say reorg?

     
    RC Dean’s Iron Laws are being used against the regulatory state here to great effect. Perhaps the one that seems to be biting most painfully is me today, you tomorrow. Presidents have been stretching the edges of their power since Washington, but in the current century it seems to have become particularly egregious. Driven by the combination of Congress’s ceding of statutory rule-making to the Executive Branch, the Chevron precedent in 1984 telling Federal Courts to side with administrative rule-makers at all costs, and the broad adoption of the computer, we have seen the Executive agencies under each president make regulations that constrain the ordinary citizen from engaging in just about anything. It is interesting to watch a populist who cares only for ratings and a bunch of people who have been marginalized in the Republican party for years suddenly find themselves using the power to dismantle parts of the state that libertarians dislike. Of course, they are also bulking up the parts that libertarians hate most. I don’t see a lot of love in the comments for the TSA and Border Patrol, nor much will to reinvigorate the military so that we can fight all the rest of the world at once, but that appears to be happening as well.

     

     

     

    The Trump Administration also appears to have taken the Iron Law you get more of what you reward and less of what you punish to heart as well. For both good and ill to the broad libertarian view. Rarely have we had the opportunity to experience the impartial laws of government work in any context that could even broadly be described as not entirely horrible. You might have to go all the way back to the Carter presidency to find someone who accidentally struck a blow for not quite as effective citizen enslavement. Trump’s administration will not be a friend of libertarians, but as long as the wind of “fuck government regulators” keeps blowing, he might be a slightly mitigated disaster.

  • Use This One Weird Trick to Create Your Own Monopoly

    By: We Are Tulpa

    The Good

    Why is it whenever critics discuss monopolies they rarely mention Google? You know Google, the company with a market cap of over $500 billion that controls around 80% of the search market, about 30% of the worldwide digital ads market, and provides its Android operating system to almost 90% of all smartphones used by roughly 25% of all websites, including this one! We can’t forget about the behemoth Apple either. They control 10% to 20% of the smartphone market at any given time, and are the most valuable company in the world! And when your Facebook friends unleash a screed against monopolies they ironically fail to realize that their message is made possible by a company that enjoys 42% of visits to social media platforms.

    How is it critics continue to ignore these monopolies, preferring to poke at other sores? Truth is, these are the good monopolies. From Amazon to Uber, many of these relatively new tech companies have achieved enormous gains over incumbents due to superior service to customers. Yet when Bloomberg blames monopolies for income inequality, worker exploitation, slow productivity growth and a lack of business dynamism (whatever the hell that means), they conveniently fail to discuss these good monopolies.

    Now I’m not saying the tech world is an ideal model for worker-employer relationships: In fact I think many tech companies, like Amazon, are screwing themselves long-term with their burn-out cultures; but these monopolies were elevated to their positions by doing it better than the rest, and that inconvenient truth destroys the “all monopolies are worse than Hitler” narrative often supported by the right and the left.

    As a quick note, I’m using the term monopoly to include monopolistic competition and oligopolies in addition to monopolies. Let the commentariat eviscerate any uncharitable pedants who fail to understand this.

    The Bad

    So why are consumer outcomes so bad in industries like finance, utilities, and healthcare? How is it that consolidation in these industries just seems to make things more painful for consumers, while tech monopolies have reached dominance by making customers happy?

    My Libertarian comrades may be inclined to say “it’s the regulatory environment dumbass” and they have a point. A free-market for internet providers would remove many of the regulatory obstacles to deployment. It would also reduce regulatory risk, or the uncertainty of future regulations that could instantly destroy the earning potential of a new billion-dollar internet provider. A recent example of this risk materialized with Net Neutrality, a policy which limits how internet service providers can respond to bandwidth hogs like Netflix. A free-market, or something close to it, results in lower barriers to entry and less regulatory risk, thus encouraging more competitors to enter the marketplace in a direct assault on entrenched bad monopolies. After all, it’s really not that hard to beat Comcast, if you have lots of cash and a fair playing field.

    However, while onerous regulations explain how bad monopolies retain their market position while providing terrible service, it doesn’t fully explain why consolidation is occurring in industries like healthcare. To understand that we have to add one more factor to our model of how bad monopolies are born…consumer irrationality.

    The Ugly

    Our journey to the center of government meddling in healthcare starts with this contemptible creation:

    The food pyramid was brought to life in 1992, thanks to the generous assistance of many food industry groups, and in the face of enormous criticism. Despite that, American’s seemed to jump on board with the “screw fats” and “carbs are good” recommendations it pushed: After the new guidelines were released the average calories from fat became significantly lower. Further, the pyramid influenced a wide range of policies and recommendations from meals in public schools, to dietary guidelines for expectant mothers.

    Today we know better. Fats are not an evil that should be avoided at all costs, and many experts are questioning whether saturated fats (long considered the worst of the worst) are actually linked to obesity or heart disease. Meanwhile, those glorious carbohydrates that formed the base of the mighty food pyramid have been sidelined in most modern nutrition programs.

    Back to the ’90s, after the government’s food innovation, something very interesting and entirely predictable happened. We got fat. Obesity rates begin to increase sharply in the mid to late ’90s. It was a perfect storm really. Nixon’s corn subsidies had reduced the price of corn products including high-fructose corn syrup. Food suppliers seized on this and offered cheap junk food. Then came the food pyramid, which told us massive intakes of carbs are a good thing. So whether you jumped on the cheap junk food bandwagon, the carbo-load bandwagon, or somewhere in between, your new diet was influenced by good ole Uncle Sam.

    Of course with rising obesity rates came rising rates of heart disease, stroke, diabetes, and more. Doctors advocated for taking in less fat and sugar to combat the problem. Cholesterol became a key indicator of your risk for many obesity-related diseases and cholesterol-lowering drugs.

    But were doctors targeting the wrong cause all this time? Several new studies have found no or negative relationships between cholesterol and heart disease. Plus, we already covered the growing body of evidence that saturated fats aren’t really bad after all. Of course, if true, it means that thousands of lives have been lost in preventable deaths, billions of dollars wasted, and many lives forever transformed because our favored solutions were about as useful as a Libertarian purity test.

    This begs the question how much influence did government nutrition guidelines have on health recommendations? How much did government actions contribute to the obesity epidemic? These are hard questions to answer, but they’re even harder when you’re not looking. Take a glance at some of the major websites weighing in on the obesity epidemic and you’ll be lucky to see a reference to corn subsidies. Don’t bother looking for the government’s promotion of terrible diet advice. Apparently, that bit of history has already been forgotten by most.

    Of course, this is the perfect opportunity for a Libertarian moment – a shining example that science and government policy should exist independently, not in direct reliance on one another. Don’t get your hopes up. Salon argues that the government’s newest food meddling innovation, My Plate, still over promotes carbs. But the apparent cause is we just didn’t have the right top men. HuffPo answers the gov food failings by pointing the finger at the evil food industry. After all crony capitalism isn’t a problem inherent in governance; the problem lies in capitalist actors using greed against the noble politicians. How can our great politicians resist the influence of these evil capitalists?

    This is our first glimpse of consumer irrationality: Reliance on government health guidelines and demanding more government to fix the problem it created in the first place. I don’t fault consumers for buying more corn-based products after subsidies were introduced. That’s perfectly rational behavior. But thinking big papa government has your nutrition covered, seems a bit foolish given it’s track record.

    The Uglyer

    Through the 1990s on, consumers generally preferred health insurance to paying for health care themselves. There is more history here including government exempting employer-based health benefits from income taxes and wage controls after WWII, but the point is consumers preferred health insurance and the employer-sponsored variety was especially appealing. Health care costs had been increasing disproportionately to inflation for decades, and health providers looked for ways to stay profitable. The answer…consolidation.

    The first major consolidation in health care occurred in the 1990s, followed by another wave in 2010 forward. Proponents of consolidation claimed it would reduce costs, result in a higher quality of care and improve the health of affected populations. Studies showed otherwise. Consolidation leads to substantial increases in price and evidence suggests it harms the quality of care. So what is the real reason for consolidation? Consolidation gives hospitals more bargaining power in a local market. In consolidated markets, fees increase anywhere from 20% to 60%. These fees are passed on to the insurer who in turn pass the cost increases on to employers or directly to enrollees. Contrast this with non-consolidated markets where participants cut costs since they lack bargaining power to simply raise fees. So basically consolidation is a way for hospitals to maintain profitability against a rising tide of regulation and cost increases.

    The Uglyerer

    The Affordable Care Act (ACA) helped along consolidation too. Some claim recent ACA-related consolidation was to combat regulatory uncertainty and that may be true, but many Ocare requirements directly contributed to consolidation and the elimination of small providers.

    Under Obamacare medical coding changed to the ICD-10 standard. This meant switching from a standard with 13,000 medical billing codes to a standard with 70,000! The shocking result… cost increases. Survey results show a wide range of implementation costs for small practices, anywhere from $8,000 to over $100,000! There is also continued controversy over whether the new coding will reduce or increase billing costs. Early results indicate a higher rate of claim denials and about 25% less productivity under ICD-10. Additionally, in a survey of 38 medical billing companies, three went out of business due to problems in implementing ICD-10. [Applaud here]

    Now, in all fairness, some of these ICD-10 codes are quite good. Imagine a group of healthcare professionals, sitting around a conference table, coming up with gems like:

    Bitten by a turtle – W5921XS

    Hit or struck by falling object due to accident to canoe or kayak – V9135XA

    Struck by macaw – W6112XA

    Hurt walking into a lamppost – W2202XA (Who would actually admit this?)

    Pedestrian on foot injured in collision with roller-skater, subsequent encounter – V0001XD

    Spacecraft crash injuring occupant – V9542XA (Seriously?)

    Burn due to water-skis on fire – V9107XA (Has this happened even one time, ever?)

    Struck by duck, subsequent encounter – W6162XD

    Hurt at the library – Y92241

    Sucked into jet engine, subsequent encounter – V9733XD (Twice?)

    Unspecified balloon accident injuring occupant – V9600XS (Does this include accidents involving OMWC’s “balloon animals”?)

    Hurt at the opera – Y92253

    Bizarre personal appearance – R461 (…you talk like a fag, and your shit’s all retarded.)

    Problems in relationship with in-laws – Z631

    Stabbed while crocheting – Y93D1 (Why not stabbed by crochet needle?)

    Prolonged stay in weightless environment – X52

    Unspecified event, undetermined intent – Y34 (I’ll bet this one gets used a lot in ERs)
    At least these people can do better than the SNL writing staff, so credit where credit’s due!

    Of course, a sane person would wonder why it makes a difference whether you were bitten by a Macaw or a Sea Lion; or whether you suffered injuries during the re-entry of your spacecraft or a hard landing in a hot air balloon. Why doesn’t coding simply focus on injuries and treatment because that’s kind of the basis for billing? But that’s why I’m not a medical billing and coding expert I guess.

    Other claims about ICD-10 include cost savings from fewer errors, due to the more “granular” coding structure. But that claim is a bit difficult to swallow as one would logically think adopting tens of thousands of more specific codes would result in higher error rates, not lower. ICD-10 is also supposed to reduce fraud by combating over-coding. If anything ICD-10 provides more opportunities to squeeze the system. A fraudster could use closely-related codes, and if called on the gambit, simply claim they didn’t understand the minor difference between one code and the other: A very plausible explanation given a catalog of 70,000 codes to sort through.

    Ocare also included mandates for electronic medical records. The average cost of implementation for a single physician practice is a lowly $163,765. There are operational costs too, not to mention the cost of replacement systems when the old ones outlive their usefulness.

    Aside from costs, the complexity of implementing electronic medical records (EMR) is causing some doctors to close their practices entirely, opting for direct or concierge pay. Meanwhile, many doctors that comply with EMR are getting burned out, spending time filling out useless forms, troubleshooting computer problems, and typing information into screens. The result is more time spent on compliance and less time with patients.

    Large hospitals haven’t been immune from headaches over EMRs either. It turns out that digitizing someone’s entire medical history and putting it on a server is going to attract hackers. In 2015, 253 breaches exposed 113 million patient records. The number of breaches increased in 2016 to 450, while the total number of compromised records decreased to 27.3 million.

    One of the big incentives for hackers to target medical records is the potential payoff. While a stolen credit card number may fetch $1 to $3, a stolen EMR goes for around $60! That’s because these records contain such a detailed and diverse amount of information that they can be used in all kinds of schemes. Personally, I find the hacking trend surprising, considering how knowledgeable health care administrators and staff are of IT security.

    It’s Bad

    In a bid to one-up cancer, the ACA included even more hits for the health care industry. One issue is non-payment by Obamacare enrollees. Doctors have faced difficulty verifying whether a patient with Ocare actually paid their premium or not. Office staff either have to spend upwards of an hour on the phone to try to verify a premium is paid, or take the risk of not getting reimbursed for care. This is all thanks to the 90-day grace period under ACA.

    ACA included hefty cuts to Medicare and Medicaid payouts too. The former had average payouts reduced by 21.2% while the latter faced a 42.8% decrease in average payouts. I bet you’ll never guess what happened next! Shockingly, many doctors stopped accepting new Medicaid and Medicare patients, or just outright refused patients with the offending coverage. But while the little guys were either stuck with lower payouts or saying no to patients, good old market consolidation provided a great way for the big guys to make up the shortfalls. In consolidated markets, hospitals simply passed the lost reimbursement fees on to private insurance. What a way to win: Government saves money from entitlement programs by passing it on to private insurance, thanks to consolidated markets, which they helped enable. Win-win!

    Of course, there was also the obligatory dose of crony capitalism in ACA, but hell, that doesn’t seem very important when weighed against the other effects. And no Ocare criticism would be complete without mentioning that restricting insurers from considering pre-existing conditions, increased costs for everyone. It effectively punished healthy people for those that treat their bodies like progressives treat a black Republican, but let’s get back to consolidation.

    So to recap, consumers push for health insurance which kicks off the first big industry consolidation in the ’90s. Health care costs continue to rise and the light-bringer gives us Ocare, which pushes many small providers out of the market, and fuels even more consolidation of the big players. But maybe you’re not convinced consumers were really acting irrationally here. After all, if your employer is going to cover half of your health insurance cost, isn’t that better than trying to pay in cash? No.

    Health insurance by its very nature increases cost. First, you are pooling risk so healthy people pay for less healthy ones. There is nothing wrong with this for catastrophic coverage if you share costs with other responsible parties. However, when you’re paying for my uncle who drinks nothing but diet Coke and Vodka, you’re wasting your money. Then there is the expense of medical billing and coding, claim processing, customer service, all sorts of other administrative costs, and then profit. When you accept health insurance, you accept all the expensive baggage that goes with it.

    There is absolutely no sane reason to have health insurance cover your regular doctor’s visit or a trip to urgent care to get checked out for strep throat! If more people paid in cash, everyone would pay less. Of course, I’m aware of the challenges in trying to go all-in cash in today’s marketplace. Many providers just don’t get it and will offer you little to no discounts for cash payments, even though creating an insurance claim is costlier. So that’s the mess rational actors have to deal with. But, it boggles the mind how many Americans cannot grasp this principle: Insurance does not reduce costs, it increases them. Use it for the bankruptcy-inducing stuff only! I think it’s time to end this mental exercise and replace it with empirical evidence.

    Exhibit 1:

    Salvation lies in Oklahoma City, just off the 77. This is where Libertarianism is winning hearts, minds, and wallets. The Surgery Center of Oklahoma boasts of a praiseworthy 4.4 stars on Google Places and big savings on many surgical procedures. The savings are so big that Oklahoma’s public employee’s insurance fund covers 100% of the cost of any procedure performed there. Take that insurance to a regular a hospital and you’ll pay the deductible and co-pay. That’s because the prices at area hospitals are so much more expensive, the state will still pay more even if an employee covers the deductible and co-pay!

    Exhibit 2:

    If you are godly or care to fake it, cost-sharing ministries offer huge savings! Under Medi-Share a 30-year old would pay only $132 a month for medical sharing with a $5,000 annual household portion (basically a deductible). If you meet their health requirements your monthly payment drops to $117. Meanwhile, your average bronze plan on Obamacare has an average deductible of $6,000, an out-of-pocket maximum of $6,900, and a monthly premium of $311. Want to take a step up in coverage? An Ocare gold plan with a $1,200 deductible and a $4,900 out-of-pocket maximum, on average, costs $460 a month. But if the power of Christ compels you to buy a cost-sharing plan with a $1,250 annual household portion, you’ll pay only $235 a month, $207 if healthy. Bear in mind with cost sharing plans once you hit your annual household portion, covered medical procedures are 100% covered. Under normal insurance, once you hit your deductible, you’ll have to pay something like 20% of all medical costs until you hit the out-of-pocket maximum. That means with cost-sharing, you are saving in monthly costs and saving on big procedures!

    In a rational world, consumers would look at health sharing ministries and ask what are they doing to get costs that low? But alas, this is not a rational world. Insert one tale of corruption and another legitimate contract dispute, both of which can easily be settled in the courts, and politicians scream “see we must regulate.” Professor Tim Jost of Lee University School of Law is particularly “concerned that you have people joining because they’re trying to find cheap coverage or because they’re ideologically opposed to the Affordable Care Act, or people who aren’t committed.” Oh, the horror. In fact, the health sharing ministry, Medi-Share, ran into problems operating in Kentucky. Apparently, the issue was that all users were paying into one shared fund. Medi-Share solved the problem by having people pay into their own individual funds and then transferring money between accounts to cover medical expenses. Good thing government was there to avert that crisis. Imagine the horror of using one account instead of tens of thousands, to manage the same money.

    In a rational world, consumers would demand catastrophic coverage or none at all. In rationale world, employees would swamp HR departments and managers demanding they cut out insurance and save everyone some money. In a rational world, people would completely reject Obamacare and demand congress to allow secular medical sharing programs. In a rational world, those with extreme health conditions that can’t pay would rely on the charity of others to cover their bills, not government force. Irrationality is all around us.

    For decades economists assumed real humans acted perfectly rational, but behavioral economics won that debate. Today, we have many examples of human irrationality. Sometimes, people just don’t do the math. It seems this is one of those times.

    I think it’s time for one last recap: So government contributed to the obesity epidemic, which increased health care costs and probably increased demand for managed health care (health insurance). The gov’s food innovations seemingly influenced doctors to use the wrong solutions which cost a lot of money and a lot of lives. Consumers irrationally continued to view health insurance as the best way to pay for health care, even though if they did the math, cash-based options and catastrophic plans would have left them richer. Hospitals responded to increased costs and increased use of health insurance through consolidation: Consolidation gave them the power to demand higher fees from insurers, which insurers passed on to employers and private insurance enrollees. With costs on the rise, and the masses all in for health insurance or free coverage, Chocolate Jesus gave us all the STD known as the Affordable Care Act. This resulted in health insurance cost increases and more consolidation. So now we have a lower quality of care at a higher price with fewer options. But before you belligerently swear at Obama on your front lawn, remember to give a shout out to all the pricks that never realized health insurance was a bad deal. If people would have preferred direct or concierge pay options, with a little bit of catastrophic coverage, our health care landscape could like a lot more like the Surgery Center of Oklahoma Center, and a lot less like Lena Dunham.

    Irrationally Libertarian

    Many of us accepted Libertarianism into our hearts through logic and rational analysis. It could be a pragmatic perspective that government top men are incapable of making better decisions than individuals and free markets; and have completely failed to move the needle in a positive direction on society’s biggest problems. Or perhaps it is a strategic approach: The realization that the best way to deal with conflicting conservative and liberal ideologies, each wanting to impose their own views on everyone else, is to maximize freedom for all. Or it could be a moral approach, based on the fundamental right that no man has the right to rule over another. The point is most of us are driven to Libertarianism due to rationality. Irrationality is our enemy.

    A good test of consumer irrationality is what I like to call the Walmart test: How many people complain about Walmart’s use of foreign labor, worker exploitation, and terrible customer service, but refuse to take their money anywhere else? This disassociation in cause and effect is a huge problem for Libertarians, as many of these consumers will then call on government to solve the problems in which they believe the oppressed consumer is powerless to address directly. This is the Achilles’ heel to Libertarian governance, an ever-present desire to create utopia through big government. For sustainable Libertarian governance to work, we must have buy-in from a critical mass of mostly rational actors that understand their dollars and time are votes in a free market! The case of health insurance consolidation shows us that most irrationalities don’t see less government as a solution; they simply want a different flavor of government solutions.

    With this in mind, Libertarianism cannot succeed by responding to emotional appeals and inane political rhetoric in kind. Instead, we must continue to support logic and rational thought. Only that will fully convert the unbelievers and help us build a rational barricade against bubbles and government intervention, as we march for free markets. Simply getting regulatory victories is not enough. If we could enact a limited government tomorrow, in line with the original intent of the Constitution, the backlash would quickly destroy our gains in freedom. The people are not ready for Libertarianism. Joseph de Maistre said it best, “Every nation gets the government it deserves.” If we deserved Libertarian governance, we’d have it.

    Now bow before the best-sourced article in all of Glibertaria! I assume my honorary degree from Columbia is in the mail.

  • Another Day, Another IP Think-Piece. We’re Such Party Animals Here At Glibertarians.com!

    Greetings!

    Some time ago, I brought you a piece the primary function of which was to provide a free resource to understand the radical notion, largely held only in libertarian circles, that IP laws are not compatible with libertarian principles. You can find a link to that earlier piece here.

    I’d like to direct you now to a piece that I perhaps should have led off with. It is still by Stephan Kinsella, a Houston, TX patent attorney*, Executive Editor of Libertarian Papers and Director, Center for the Study of Innovative Freedom (c4sif.org). However, it is a smaller, more condensed version of his primary argument, and is rife with excellent citations and thorough notes that any budding libertarian or anarchist theorist will find invaluable.

    Those aren't creations of the mind, they're creations of a fucking factory. What are you, Q?
    There aren’t many useful pictures that come up when you search “Intellectual Property Images”

    In the article Law and Intellectual Property in a Stateless Society, Mr. Kinsella takes the reader through a very brief but illuminating explanation of the evolution of the view of self-ownership and how property rights are inherent to this concept. He then goes on to reiterate how IP laws contradict those property rights, which argument those of you who read Against Intellectual Property will already be familiar with.

    The portion that I think our small army of arm-chair commenter-philosophers will find most interesting and conducive to discussion is the latter part of the article. Mr. Kinsella discusses what an IP regime might look like in a stateless society. This directly addresses those who dismiss an idea as being too radical, or unworkable, if no direct formulation is provided of how the idea might play out in a practical fashion.

    When downloaded, the PDF shows a length of 44 pages, but due to the voluminous notes, there is really only about 25 or so pages of narrative text. You can read it over your lunch break! Assuming you work for a weak-kneed progressive who actually allows you to not be working for a precious few minutes in order to eat. No true libertarian master would ever permit such indulgence among his (and I do exclusively use the male pronoun when discussing both libertarians, and business owners) chattel.

     

    *Don’t we have a commenter who is also an attorney in Houston? If you disagree with Mr. Kinsella’s positions, you should meet him for lunch and fight to the death. It’s the only way to prove which one is right.

  • VAULT 7: HOLY SHIT

    WikiLeaks has just released the first part of the largest document dump on an “intelligence agency” in its history.  Or in the history of record-keeping.  Ever.

    The first of many releases

    Julian Assange is quoted in The Guardian as saying the release will be far larger than the Snowden Files.

    ZeroHedge has a pretty good early take, as they usually do.  It has charts, too!

    CIA Organizational Chart

    This is going to suck all the air out of the news for a while, and I’m predicting it will cause several heads to explode on both “sides” of American politics, let alone the impact it will have on the Deep State bureaucrats who think they are above the law.

     

  • Trump Address Liveblog

    Trump speech live blog with updates in the article from your intrepid Glibs “staff” and your reactions in the comments.

     

    8:05:  Much cheering from a little more than half of the crowd….

    8:08: That hair is just ridiculous. (sloopy)

    8:10: Starts off condemning hate speech, vandalism and evil.  Not bad. (sloopy)

    8:11: See? He wants to torch the world! (HM)

    8:14: Campaign speech? Ugh. (sloopy)

    8:18: Hair is looking’ good tonight, y’all! But where’s The Hat? I demand a close up! (SugarFree)

    8:19: HOLY SHIT! This just became “Questions to the Prime Minister”! (HM)

    8:19: Who could complain about the lobbying rules? Team Blue, I guess. (sloopy)

    8:19: He’s really angling for that Union vote. Clinton shouldn’t have taken them for granted. (sloopy)

    8:23: I had no idea I was living in a post-apocalyptic wasteland! (HM)

    8:29: Doesn’t look like even the Dems that voted to confirm Gorsuch the last time can get off their hands.  Hypocrisy? Or are they lamenting their rubber-stamping some years ago? (sloopy)

    8:30 American juche is awesome! Maybe we can get 2 hot Asian chicks to smear VX nerve agent on Trump’s brother-in-law. (HM)

    8:35: Two kids are diaper-less and the third has just walked in with an entire chocolate cake in her hands. Shit. (sloopy)

    8:39: REPEAL AND REPLACE OBAMACARE with something closer to the free market.  Yes, please! (sloopy)

    8:43: “Across state lines.”  About time that got corrected. (sloopy)

    8:46: Jesus, fiscally liberal and socially conservative is the worst of both worlds! (HM)

    8:48: Wait, so Team Blue likes the arduous FDA approval process that keeps drugs from market that could save lives?  Seriously, what the fuck? (sloopy)

    8:49: SCHOOL CHOICE!!!!! (sloopy)

    8:50: *sigh* No one gives a shit about normal people, Donald. (HM)

    8:53: What gets both Republicans and Democrats on their feet? Cop-fellating. (HM)

    8:55: He’s gone 55 minutes without saying we need to bomb a specific nation off the face of the earth.  Is that a record for a President? (sloopy)

    8:56: Aaaaaaand as soon as I say that he talks about pissing a fortune away on military expenditures. (sloopy)

    8:59: Amending HM’s comment from 8:53…and Soldier-fellating.  (sloopy)

    9:04: Somehow Chuck Shumer manages to look worse than normal, like a melted wax figure of himself. (SugarFree)

    9:07: Holy shit. Trigger Warning, please. You can’t just flip over to Pelosi like that.

    9:13: An entire presidential speech that didn’t ask for support in bombing another sovereign nation.  That’s got to be a first so far as I can remember. (sloopy)

  • FCC Chairman Calls For Rollback Of Net Neutrality “Mistake”

    Proponents and enemies of net neutrality can stop guessing what the new head of the FCC will do.  He has made it abundantly clear that he will move to dismantle the rule.

    “It has become evident that the FCC made a mistake,” Pai said at Mobile World Congress in Barcelona, according to a copy of his prepared remarks provided to CNNTech. “Our new approach injected tremendous uncertainty into the broadband market. And uncertainty is the enemy of growth.”

    Reality!

    Thank God we have someone that understands market realities and how consumer choice is better facilitated when agencies get out of the way and let firms compete.

    According to CNN:

    The net neutrality rules, approved by the FCC in 2015 amid an outpouring of online support, let the agency regulate the Internet as a public utility, placing greater restrictions on broadband providers.
    The rules prevent Internet providers like Comcast (CCV) and AT&T (T, Tech30) from deliberately speeding up or slowing down traffic from specific websites and apps. In short, the rules are intended to prevent providers from playing favorites.

    Bullshit!

    Except there was no “outpouring of online support when people understood the issue and the uncertainties it placed on ISPs.  It existed based solely on how the question was asked and what pony the respondent thought he/she’d get by supporting it.  What it did, however, do was to stifle innovation, expansion, competition and relationship-building within the industry’s varying sectors that would reduce costs.  It was going to retard progress that had been made, it would have imposed content restrictions and requirements and it would have increased costs for everybody downstream of the regulators.

    Mark another one down in “garbage that the current admin has started the process of fixing in a way libertarians should be satisfied with”.  I know it pains some people, but its the truth.

  • Marijuana And Unconstitutional Laws

    By: The Fusionist

    So, Spicer (the Presidential spokesdude) said the Trump administration might increase prosecution for state-legal recreational marijuana (as opposed to medicinal marijuana, protected by the Rohrabacher Amendment).

    The predictable prog freakout includes “wrong side of history” (the WA state attorney general) and “hypocrisy” (for respecting states’ rights on chicks with dicks, but not with dope).

    But let me ask, what are the *principled* grounds for proggy complaints? Congress passed anti-dope statutes, applying not simply to marijuana which flows in interstate commerce, but to marijuana which is grown and consumed within a single state. The Supreme Court, by a 5-4 vote, said that these federal statutes are a valid exercise of the Constitution’s Commerce Power, 10th Amendment be damned. Sure, there was an eloquent dissent by Justice Thomas, and critics ask why it took a constitutional amendment to ban booze on the federal level while marijuana required only a Congressional statute.

    But all this is beside the point, isn’t it? After all, the Supreme Court, according to prog dogma, is a secular magisterium. If the Supremes say that Congress can use the “interstate commerce” rationale to prevent the growing, selling and using of a plant within a single state, then the Court’s word is final, isn’t it? Isn’t the Supreme Court our secular Magisterium, whose pronouncements on constitutional law are binding on the consciences of the citizens, and of officials in other government branches, until such time as a new 5-4 majority on the Court overrules the former majority, in which case the *new* pronouncement of the Court is binding on the consciences of officials and citizens.

    Any Congressional statute pronounced constitutional by the Supreme Court of the United States is, therefore, perfectly valid and part of The Law, and the President is bound to see that the laws are faithfully executed. Congress has passed statutes forbidding marijuana even if grown, sold, and used exclusively within the borders of a single state. Therefore, the President is bound to enforce this law against all violators, right? And if the authorities in some defiant state refuse to comply, then do with them like the feds did with George Wallace: make them get out of the way so the will of the Supreme Court can be enforced.

    To the extent progs have principles, this is definitely one of them. They should get bumper stickers for their Volvos – “The Supreme Court said it, I believe it – that settles it!”

    So why are they bitching and moaning at Trump? Because Trump! and weed! of course.

    I suppose they will utter some noises about prosecutorial discretion, but that’s not the constitutionally required faithful enforcement of the law. That’s *fitful* enforcement.

    Fortunately, those of us who aren’t progs and who believe the federal dope laws are unconstitutional, need not paint ourselves into a corner like this. We get to say that just because the Supreme Court says something doesn’t make it true. The Supreme Court has previously admitted it was wrong in the past. So it’s like the famous conundrum of whether to believe the person who says he’s a liar.

    The federal courts are checks on abuses of power by Congress, the President, and the states. So if (to take a purely hypothetical example), the President (perhaps with Congressional approval), locks someone up without a trial, the federal courts can use habeas corpus to get the prisoner released.

    So the courts should be seen as a *check* on the powers of the other branches, but their decisions should not be seen as a *blank check* for unconstitutional federal actions.

    The President, as well as the members of Congress and the Supreme Court, are pledged to uphold the Constitution. That means defending the constitution against attacks from any quarter – even the courts and Congress.

    If Congress passes an unconstitutional statute and the Supremes uphold it, then all the more reason for the President to take another look at the statute to make sure it’s not an unconstitutional oppression of the people. If he thinks it’s unconstitutional and that the courts aren’t going to block enforcement, then the President, under his own responsibility, should uphold the Constitution and forbid the enforcement of the unconstitutional statute(s).

    Sometimes a statute creates or enforces private rights, so that if the President tries to block enforcement, a person whose rights are affected can go into federal court to challenge the Pres, and if the Supreme Court has already upheld the law, the Pres will lose. I’m not sure, however, whose legal rights are violated if the President *doesn’t* enforce the drug laws. Without an actual case, the Supreme Court won’t be able to step in.

    That leaves Congress. If the House of Representatives think the President is disobeying or thwarting the implementation of a constitutionally-valid statute, then the House can impeach the President and those who aid him (or, if they’re wimps, the House can impeach solely the subordinate executive officials who carry out the President’s orders).

    Then the Senate will decide whether to convict. Two-thirds are required for a conviction, so if 2/3 of the Senators believe the President violated a constitutionally-valid statute, they should find him guilty. On the other hand, if 1/3 plus one of the Senators believe the statute is unconstitutional, they should vote to acquit, and the President’s action will be sustained, assuming there’s no plaintiff with standing to force the Pres to enforce the statute.

    So under my suggestion, the Pres would be able to go over the head of the Supreme Court and thwart the enforcement of an unconstitutional law. Congress in its judicial capacity would have the final word on the validity of its own statutes and would throw obstructive executive-branch officials out of office if they obstruct valid statutes. On the other hand, if you can’t get a majority of the House and 2/3 of the Senate to agree that a statute is constitutional, then it’s just as well for the public the statute isn’t getting enforced, because it probably *isn’t* constitutional.

     

    (I may post another discussion about drug treaties)

  • Intellectual Property and You: An Introduction

    Hello libertarians, anarchists, minarchists, fellow travelers, and those who just kind of experimented in college but have been curious ever since.

    Today we bring up a subject only slightly less contentious among the aforementioned ideological groups than abortion or deep-dish pizza. I am speaking, of course, of intellectual property laws.

    Many commenters in the precious few articles we have seen on this issue in our previous lives expressed a desire to rein in the perceived outrages and over-application of IP, without necessarily wanting to throw the baby out with the bathwater, as it were.

    Texas Tech's football coach looks like this. I am a huge booster of Texas Tech Football. What I'm saying is that I want to have gay sex with Kliff Kingsbury.
    Texas Tech’s football coach looks like this. I am a huge booster of Texas Tech Football. What I’m saying is that I want to have gay sex with Kliff Kingsbury.

    Linked here is a free copy of a book, Against Intellectual Property, that I hope you will take the time to read. The author, Stephan Kinsella, is a critical voice in the current milieu of libertarian, anti-state, anarchist, and minarchist thought, and even when I disagree, I always enjoy his thorough and rigorous logic.

    I believe the title tells you where Mr. Kinsella stands on the topic, however, for those of you uncertain either of the practical or ideological underpinnings of IP as it currently exists and why the system should be abolished rather than merely reformed, I hope that you take the time to grapple with the presented material and hone your own thoughts and arguments.

  • Tuesday Night Links

    • Howard Root, founder and CEO of Vascular Solutions, was found not guilty on federal charges spearheaded by Deputy Attorney General Sally Yates. Yes, that Sally Yates. The actions of the federal government under her control were described by one juror as “nothing short of criminal”.

      By the gram? That’s how you know it’s bad for you.

     

    • Kerrygold butter, one of the premier dairy products on the market, cannot be sold in Wisconsin. I’m sure there are perfectly legitimate and logical reasons to protecting consumers from a noted dairy established in 1961, and protecting the Wisconsin dairy farm lobbying interests had nothing to do with it.

     

    • Daniel Crowninshield was sentenced to 41 months in prison for “unlawfully manufacturing firearms”. Special Agent in Charge Jill A. Snyder, of the Bureau of Alcohol, Tobacco and Firearms, said that Crowninshield “owned and operated a machine shop where he allowed customers with unknown backgrounds to use his machinery to unlawfully manufacture firearms for profit. That activity posed a very dangerous threat to the safety of our communities.”

     

     

     

    H/t Pope Jimbo