I’m an immigrant to the United States, originally from the tiny Scandinavian kingdom of Denmark. I moved here as an adult, not to better my financial situation, but to marry my American girlfriend and improve my emotional life. It was hard to leave a secure job with good pay; it was a risk of the unknown, but I thought well worth the love of a good woman. After settling in, I managed to find a job in the same field, with an almost identical income. Financially my life should be the same, except it quickly became apparent that I have more disposable income here. A lot more.
It can be difficult to understand the impact that such an increase in disposable income can have on a person’s life, without a tangible example. Americans shrug it off because they take it for granted. They can’t understand what it’s like living paycheck to paycheck or saving up for something trivial on an otherwise decent income. My Danish friends and family can’t understand the difference either. They think what I’m about to tell you shows how irresponsible or foolish I am with money, because spending money in this way is simply not possible without upsetting your financial life for months or years.
Literal disposable income
You get the idea: disposable income is nice, it allows you to be more carefree and buy nice things. But it’s also about more than being able to afford luxuries, and it can mean the difference between life and death for those you love. The main take away from the events you’ll read about here is this: had they played out in my native Denmark, I wouldn’t have been able to afford the medical care that saved my friend’s life. I probably wouldn’t even have been able to find anyone to provide the care because there is no market for something people cannot afford. He would have been killed humanely at my expense instead.
My friend’s name is “BJ.” Scratch that, BJ is more than a friend, he’s family. He also happens to be a cat. We didn’t really plan on getting another pet, but he was irresistibly cute – a real scrapper. He was a skinny little thing and had a lot of scars and scabs, but he was exceptionally outgoing and had very high spirits. His personality is likely why he evaded being killed at least twice while passing through high kill shelters in the first 6 months of his young life. He miraculously found himself in a no-kill shelter near us, and we found him in a pet store that features locally adoptable cats.
BJ had a clean bill of health from the shelter, and we decided to give him a chance. Having lost another cat recently, we decided to protect ourselves from heart-ache by offering to foster him, with the option of later adopting him. Yeah right. We decided to keep him within a couple of weeks. He quickly gained a bit of weight, his scabs healed, and his fur filled in. He got along with our 3 other rescue cats and was living a good life in his new home. He worked his way into our hearts, became part of the family, and we became inseparable.
Cats are prone to upper respiratory infections; they result from a herpes-like virus that is in virtually all cats. Like cold sores in humans, it lays dormant most of the time, but when it flares up the symptoms are a runny nose, sneezing, and maybe a fever. All our cats would suffer from this occasionally, but BJ caught it really bad after having lived in our home for a couple of years. His symptoms were much worse and he didn’t really seem to spring back from it as easily as our other cats. One day last year after a bout of this, he started to drool a lot and bleed out of his mouth. We panicked and took him to a vet immediately
It turned out he had several bad teeth, and one had to be removed. He was also presenting with enough other strange symptoms that the vet decided to do a few routine tests. BJ tested positive for FIV, the feline equivalent of HIV, and on top of that he was severely anemic. Because of the anemia it was uncertain if he also had the FeLV virus, which causes leukemia in cats. Shelters test for these viruses, but a cat can test negative for months after infection, so there are no guarantees.
So cute!
We were devastated. He was quickly getting worse, and we took him to an emergency animal hospital an hour away with an internist on staff. Honestly, it was uncertain if he was going to make it. BJ stayed in the hospital for several days, where he had two blood transfusions, a bone marrow biopsy, and a bunch of other tests and treatment. He was very sick, but through the whole thing he was friendly and alert, and you could tell the staff was rooting for him and giving him extra attention because of his personality. Being cute is a real survival skill for this little guy.
Thankfully he didn’t have FeLV, instead the anemia was caused by something called a “mycoplasma.” This bug had a field day because his immune system was compromised by the FIV virus. It can be easily cured, but was damaging his bone marrow and keeping him from producing and sustaining viable blood cells. He was getting a cocktail of antibiotics to kill the mycoplasma, and steroids/immune-suppressing drugs to give his bone marrow a chance to heal and produce new blood cells and to slow down the FIV. To complicate matters, the steroid made him diabetic, a risk we accepted, and he needs insulin injections twice daily. For months we were taking it one day at a time. BJ will always be sick, but thanks to our ability to provide this care for him, he can feel happy and healthy. He pays us back every day.
It wasn’t cheap–it cost us thousands of dollars, and he still needs medications and frequent trips to the vet. But it was our choice. If BJ lived with me in Denmark, that choice – and consequently his life – would have been extremely limited by how others think my income should be spent. BJ would have died to pay for an artist’s paint, a politician’s plane ticket, and the Queen’s morning cup of organic fair-trade coffee.
He says (@13:21):
“If we’re libertarians, if we don’t believe that Government force should be used to suppress any kind of view, any kind of free speech, then it is incumbent upon us to speak out about views that are repugnant.”
My instincts tell me this doesn’t make any sense. I could be wrong, but here’s my thinking why:
1. The idea of ‘an obligation to speak against (other people’s) views’ is the first problem.
I appreciate the whole ‘rights and duties’ thing, which suggests that every liberty comes with associated responsibilities…but I can’t see it extending so far as to compel speech or require people to share in some collective judgments.
2. The second part is more of a question-begging bit: who, exactly, found those views repugnant, again? “We”? When did “we” make that collective decision?
He assumes that certain views are de-facto unacceptable and therefore must be ‘responded’ to … but how do we know what is unacceptable in the first place unless these ideas are shared and debated and individual decisions made about them? Repressing certain ideas at first sight seems to make that process impossible.
3. Which i suppose leads to problem 3: ‘what form of response’ is obligated?
And why is “ignoring” things you don’t agree with not just as (if not more) effective? Because dumb-ideas can only transition from ‘dumb’ to ‘dangerous’ when they are being actively spread. And nothing spreads bad ideas quite like repression. Just ask any teenager.
If the specific thing he were talking about here – “Neo-Nazism” – were in fact in genuine danger of becoming a widespread, popular political movement, I’d grant that his argument had some practical merit… but which still had nothing to do with libertarianism in particular. It would be more “Jesus Christ, we’d better stop the Nazis before they throw us all in gas chambers”.
But it seems to me that he’s suggesting that a mere-assembly of a few-dozen racist yokels every now and then (if that) actually DOES merit thousands of liberty-minded people descending on them to silence them, because ‘repugnant’ speech must not be allowed to go unchecked.
Basically, I find that argument monumentally stupid on the face of it. But I’m interested in hearing different takes from the wise and thoughtful Gliberati. Hence, I thought I’d post the question rather than just comment.
More episodes may follow, depending on gibberish-levels.
People seemed to enjoy the discussion in the original article, so I’m going to expand on it based on some of the conversation we had in the comments. As noted in the comments, August is employing the Socratic method. In real life, August is a classmate from law school who was a philosophy major. He and I enjoy sipping bourbon, smoking pipes, and talking politics, philosophy, and theology.
In the original article, I made the assertion that rights are meaningless outside of a relationship. I also asserted that rights are definitions of the boundaries of authority between co-equal entities (man to man; man to human institution). In this article, I will address some of the points brought up in the comments: conflicting rights, objective v. subjective rights, negative v. positive rights, how rights flow from self-ownership.
The conversation picks up at the end of the prior article:
AUGUST: So if rights are based on authority and the equality of man, are you saying that rights are attempts to prevent inequity between men and between man and institutions created by man?
OSCAR: Yes! As with any co-equal relationship, there are certain things solely in the domain of the first, other things that are solely in the domain of the second, and some things that are in an overlapping domain between the two. For example, parenting.
AUGUST: So, in this Venn Diagram description, your domain is your rights with respect to me, my domain is my rights with respect to you, and the shared domain is collective rights between us and conflicting rights between us. How can rights conflict if they are natural?
OSCAR: Well, this is more of a semantic difference. Either you can paint with broad strokes (“right to life; right to play loud music; right to swing your arms”) and deal with conflicts of the rights (“my right to swing my arm ends at your nose”), or you can paint more carefully (“right to swing your arms in open portions of your personal space”) and not have to deal with conflicts. Either way, there is a limit to the extent of your rights where you begin to infringe somebody else’s rights.
AUGUST: This still seems fuzzy. How do you know when you’re infringing somebody else’s rights?
OSCAR: Well, we need to know how to identify a right in order to be able to tell if we’re infringing on rights. There are two things called “rights” these days. One is negative rights, and the other is positive rights. Positive rights are largely a misnomer in the context of strangers (including the government). The only relationship in which positive rights make sense is the dependent/caretaker relationship. This is why people refer to the “Nanny State” when government enshrines positive rights in law. Negative rights, however, are natural rights. They derive from self-ownership. Negative rights are things whose direct, tangible consequences are felt only by the rights owner and consenting others. In essence, you are the sovereign of your own domain; only you have the authority to make decisions that result in consequences to only you. Thus, you are infringing on somebody else’s rights when you do something that keeps them from exercising sovereignty over themselves and their property.
AUGUST: Direct, tangible consequences? Like economic externalities, emotional effects, and social consequences?
OSCAR: No, usually rights violations are one of three categories: force, fraud, and coercion. Nobody forces you to feel a certain way. Nobody coerces the market to ripple when you make a transaction. Nobody forces society to react to your actions. All of these consequences to the exercise of rights may be of concern to people and to society at large, but they are outside of the authority of strangers and the government to resolve by infringing on the free exercise of rights.
AUGUST: But we discussed before that there are times when you can use force, like in self-defense. It seems like you can’t use force until you can.. it’s all very arbitrary sounding.
OSCAR: Not at all. There is a basic principle that you can respond to immoral force with force of your own, but you cannot initiate immoral force: the non-aggression principle.
AUGUST: Ah, so when my neighbor accidentally steps on my side of the property line, I get to kill him?
OSCAR: No, the NAP is better seen as a negative limitation than a positive one. The NAP tells you when you CAN’T use force, but doesn’t dictate HOW you can use force when it is not immoral to do so. There are rules of proportionality that are outside the scope of rights.
AUGUST: That is all well and good, but I’m still not convinced that negative rights are a necessary consequence of self-ownership.
OSCAR: Ownership implies control. If you own yourself, you have control over your actions. Ownership also implies exclusivity as to strangers. There can be co-owners of something, but co-ownership implies a consenting relationship. You cannot be a co-owner with a complete stranger. Therefore, absent consensual abdication of your self-ownership, your claim to your own body and to your actions is exclusive. As previously discussed, the only time this changes is when your actions cause direct, tangible consequences to non-consenting others.
Part of your actions include your labor. You are the owner of your labor, including the economic value of your labor. Economic value of your labor can be traded for physical property, which makes you exclusive owner of capital. Throughout this entire chain, your exclusive ownership and control has not been severed unless consensually negotiated for. Therefore, self-ownership implies control over your actions, your labor, and your property, up to the point where you cause direct, tangible consequences to non-consenting others. It is important to note here that the direct, tangible consequences need to be caused against a legitimate claim of the non-consenting other. If I buy the Mona Lisa, I deprive you of being able to see it. However, you have no legitimate claim to the Mona Lisa because you have no grounds to claim ownership of the Mona Lisa.
AUGUST: What’s the point of all of this if a “might makes right” government comes in and imposes its will on you?
OSCAR: Rights are not subjective. Negative rights are natural outcroppings from the physical reality of self-ownership. Positive rights are natural outcroppings of the duties that are inherent in a caretaker role. Practical infringements of rights do not affect the ethical reality of rights.
AUGUST: Do you have the right to do something that is wrong?
OSCAR: In my definition of rights as authority boundaries between co-equal entities, the question is somewhat irrelevant. If your “wrong” thing does not involve using force, fraud, or coercion on a non-consenting other, then government has no rightful authority to stop you. However, this says nothing of the inherent morality of your actions. You could perpetrate a horrible evil against yourself (or against God, for those who believe), and it would no more be within the government’s rightful authority than if you did a great good for yourself (or for God, for those who believe).
For a detailed treatment of this question and other related topics, I turn it over to Milton Friedman (1 hr youtube vid).
I love coffee. I’m drinking a hot cup while I pen this article. Roasting and grinding coffees from around the world is my hobby. Experimenting with different brewing methods in search of the perfect cup of Joe is my holy grail. I even researched planting my own coffee trees here in Orlando so that I could experience the whole process from soil to cup. A hero of mine, Heriberto Lopez, had the same idea in 1985. Mr. Lopez, who owned a coffee plantation in Venezuela, came to the United States so his son could receive treatment for a rare heart condition. He gambled some of his family fortune on growing coffee in south Florida, so that he could work in the U.S. while his son got the treatment he needed. The experts said it would never work. Heinz Wutsher, a researcher with the U.S. Department of Agriculture laboratory in Orlando said, ”I think the whole thing is a crackpot idea.” Well you know what? They were right. It failed. Coffee grows best in the bean belt, 25 degrees north, 30 degrees south latitude. Florida is technically in the belt, but has a deficiency of mountains on which to plant coffee. Mr. Lopez and I had our caffeine fueled dreams thwarted by geography and economics, but I still enjoy learning about coffee. Reading “Uncommon Grounds” by Mark Pendergrast, I was horrified to learn that coffee had been prohibited in various countries at different times. Why ban a harmless drink? Who could be so cruel? Don’t they know coffee is the elixir of Life? Well my friends, let us dive into when, where and why coffee was banned in history.
1511, Kha’ir Beg, the governor of Mecca, was cruising past a Mosque and saw some dudes getting their caffeine on so they could do some endurance praying–much like some of you would do with Mountain Dew and an all night Dungeons and Dragons session. Beg got bent out of shape for some reason, so he banned coffee under the power given to him by the Koran prohibiting wine. I know you are thinking, “How in the hell is coffee, a stimulant, anything like wine, a depressant?” I’m sure the Saudis were thinking the same thing. So Kha’ir goes to some local Persian doctors, the Hakimani brothers, and buys some expert testimony. The Hakimani boys claimed that coffee was harmful and had no legitimate medical use–a conflict of interest since coffee was used as a natural, inexpensive cure for depression as opposed to whatever expensive pharmaceuticals they were selling. Finally, the Sultan of Cairo stepped in because people were getting cranky without their morning coffee, and declared governor Beg had exceeded his authority to ban coffee and the people rejoiced. Happily, Kha’ir was caught embezzling money and was executed. I guess he skipped the part in the Koran about stealing.
Continuing in the 16th century, the next group anxious to wield the banhammer are the Italians. Christian Europe had been brawling with the Muslim Ottomans since 1591 and were a little salty. The Pope’s advisors wanted to ban coffee as the “bitter invention of Satan” because the drink was popular with the Turks. Ironic, considering coffee was banned in Mecca less than one hundred years before. Pope Clement the VIII requested a cup so that he may see what all this devilry was about and declared, “This Satan’s drink is so delicious that it would be a pity to let the infidels have exclusive use of it.” The Pope also believed that coffee was less harmful than alcohol and thus blessed the bean. Thanks to the Coffee Pope, modern Italians are free to sip espressos while riding vespas saying, “Ciao.”
The 17th century saw a new Muslim anti-coffee zealot, this time in Constantinople. In 1623, Murad IV claimed the throne of the Ottoman empire, famous for making little couches you put your feet on. So Murad quattro was a new king and usually you become king by screwing people over and crushing dissent. Coffee has been blamed/credited with fueling rabble rousers, as the king was aware. In fact, one of the HQs for planning the American Revolution took place in the “Green Dragon,” a coffee house in Boston. Americans switched to coffee from tea because screw England, and the founding fathers would drink caffeine and write kick-ass constitutions. Back to Constantinople, Murad knew coffee angers-up the blood and fuels revolutions so he banned coffee. Turns out, people really love coffee and kept drinking it despite the first offense: catching a beating. Second timers got sewn into a bag and thrown into the Bosphorus. Even with these severe punishments, Murad still had no trouble going undercover with his big ass sword, surprise beheading people he caught drinking Java. The ban ended when Murad decided to have a one man drinking contest and died of alcohol at the ripe old age of 28. Maybe he should have had coffee instead.
Coffee-making paraphernalia in Coffee World museum near Cairns.
Moving into the next century, 1746 Sweden not only banned coffee, but coffee paraphernalia because people were abusing coffee. I don’t know how you abuse coffee other than by leaving a pot of coffee on a burner until it turns to tar. Gustav the third, king of Sweden, ordered a pseudoscience twin study to prove the harmful effects of coffee. One twin drank tea, the other coffee. They didn’t wait around to get the results because the twins lived into their 80’s. So the Swedes sent goons around anyways, kicking in doors and smashing coffee pots and confiscating coffee beans for evidence (totally not for them to consume or resell). Shockingly, people continued to consume coffee in spite of the ban. Eventually the Swedish government decided enforcement was unmanageable and repealed the bans in the 1820’s. Today Sweden has one of the highest per capita coffee consumption rates in the world.
Another jerk from the 18th century is Frederick “the Great” of Prussia. In 1777, Fred was concerned that coffee consumption was cutting into the beer profits. Beer was a local product so profits stayed in Prussia. Coffee, being an import good, caused money to flow out of the country. So he proclaimed coffee banned and told the proles to go back to drinking beer for breakfast. In true Top Man fashion, nobles were allowed to continue to drink coffee. Fred liked to drink his coffee made with champagne instead of water, in true baller fashion. Rappers take note, that is how you stupidly waste money. Drinking a hot champagny cuppa in front of the people you are telling don’t drink coffee doesn’t inspire people to respect the ban. I thought ordering a bunch of Germans to drink beer for breakfast was an easy sell, but Fred screwed it up somehow. Freddie had to rescind his order and allow the Prussians their coffee.
An article about coffee prohibition wouldn’t be complete without mentioning America, the largest coffee market in the world. Multiple attempts by moral scolds and busy bodies to shut down coffee have been mounted, but, luckily for us, they have all failed so I won’t bore you with the details. However, one man was moderately successful in cutting into American coffee consumption, C. W. Post. Post was not a mentally stable person, to put it mildly. He believed in all the quack cures of the day and Grandpa Simpson diagnoses. C.W. suffered from nervous breakdowns and became
student of John Kellogg, another cereal Barron, that taught him the dark arts of healthy eating to cure his imbalanced humours. Kellogg was a Seven Day Adventist and shunned caffeine and advised C.W. to give up coffee. C.W. became a titan of the breakfast food world because he was the first to understand the power of advertising. He spent a tremendous amount of money pushing his health foods on the public using clever ads that weren’t always completely true. Post started an ad campaign warning about the dangers of coffee and how it is basically killing you every time you take a sip. Unbeknownst to the public, C.W. couldn’t start his day without his big mug of bean juice. That didn’t stop him from telling everyone else to drink Postum, the coffee substitute made from wheat bran, wheat, and molasses. Bizarrely the slogan of Postum was “There’s a Reason.” I guess that did something for the chumps of the 20th century because they bought the stuff. Postum sales surged during WWII as coffee was diverted to the front lines, because nothing kills Nazis better than a conscripted 18 year old with coffee jitters and a M1 garand. If you would like to try this
abomination of a drink, you can still purchase Postum on Amazon.
21st century America has not banned coffee, thank the Coffee Pope, but we do have prohibition of drugs. The arguments for caffeine prohibition of the past are the same arguments used to prohibit drugs today: “The money flows out of the country;” “ It makes God angry when you use an intoxicant;” “Undesirables use it and listen to music I find offensive;” “ It causes crime and dissent among the masses;” “Drugs have no legitimate medical use.” These arguments are as hollow now as they were 500 years ago and the banners are as big of hypocrites as ever. Three out of our four past presidents are known to have used drugs and yet happily continued the war on drugs. The true reason for drug prohibition is power and that is one hell of a drug. Currently in the 103rd year of drug prohibition, America has been slow to reverse course, but public opinion is changing and that is what ultimately lead to the reversal of coffee prohibition in Mecca, Sweden, and Prussia. So the next time you’re in the breakroom having a cup of coffee with a coworker, share what you have learned about the tyrants that banned the drink they are enjoying. Maybe you’ll help turn the tide of public opinion.
Recently, within the Liberty-o-sphere, much hay was made over a speech by Jeff Deist, president of the Mises Institute, titled “For a New Libertarian.” Steve Horowitz, Professor of Economics at St. Lawrence University took issue with Deist’s employment of the phrase “blood and soil,” calling it a “clearly racist and anti-Semitic Nazi-era phrase.” Reaction to Horowitz ranged from pointing at him and hissing ‘Jew!’ to moremeasuredresponses. From my reading of the speech, I find claiming Deist’s employment of the phrase to be “clearly racist and anti-Semitic” to be uncharitable. However, I do find the defense of “Blut und Boden” being first coined by 19th century German romantic nationalists to be a bit odd in this context, as I wonder why the president of an ostensibly anarcho-capitalist think tank would choose as his cri du coeur a phrase that was the very center of the ideological foundations of the modern nation-state. Indeed, lost in all the back-and-forth over whether or not “For a New Libertarian” is Mein Kampf redux is the larger question: Is thin libertarianism dead?
Horowitz, as a self-styled “Bleeding Heart Libertarian,” is a proponent of what is known as thick libertarianism. That is, the belief that libertarianism entails certain social and political beliefs, namely a lukewarm 20th century humanist liberalism. Thickists argue that a society (or an individual) is not truly libertarian unless there is a general belief in egalitarianism, tolerance, democracy, etc.. On the other hand, Rothbardian anarcho-capitalists argue for thin libertarianism, which is defined as the belief that libertarianism equals the non-aggression principle – nothing more, nothing less. At least they did until Deist’s speech two and a half weeks ago. When Deist argued that “[i]n other words, blood and soil and God and nation still matter to people. Libertarians ignore this at the risk of irrelevance,” it is an explicit rejection of thin libertarianism; he is saying that there is more to libertarianism than the NAP. However, contrary to the Bleeding Heart Libertarians, Deist and others now argue that it entails some flavor of traditionalist social conservatism.
As an anarcho-capitalist, I’m quite used to completely execrable human beings advocating for positions I share, which is why I believe Deist’s recent gambit to be wrong-headed. In the name of attempting to make liberty more appealing to people, Deist is, in fact, limiting and delimiting the movement extremely narrowly. Deist claimed “Mecca is not Paris, an Irishman is not an Aboriginal, a Buddhist is not a Rastafarian, a soccer mom is not a Russian,” yet here I am, the son of a Rastafarian and a Jew who converted to Buddhism at the age of 24. Thin libertarianism is what allows me to stand ranks with Deist against ever-encroaching statism. I need not agree with Deist’s new penchant for romantic nationalism, but as long as he respects the NAP, we can co-exist in the liberty sphere. It’s a shame the moonshine is so good that Deist keeps wanting to be invited to all those yokeltarian hootenannys down in Auburn, for with the death of thin libertarianism, the liberty movement may have suffer a self-inflicted dolorous blow from which it will not recover. Contra Deist, what will, in actuality, doom libertarianism to irrelevancy is fracturing the movement along 1,000 little stupid country mouse/city mouse pissing matches.
What is libertarianism’s best strategy to gain a legitimate amount of power nationally (and then happily cede it to the people)? Libertarians of the small-l and big-L varieties have sought to gain power by either co-opting one of the major political parties (See; Ron Paul Revolution that the GOP squashed) or by finding candidates to run as a Libertarian that appeal to establishment voters (see: Aleppo). But I believe there is a third, and overlooked, option: get a candidate who does some libertarian things that irritate the major parties and the deep state apparatus, and allow those actions to result in political hysterics from ultra-partisans while average Americans see no net loss from the actions and in many cases a serious net gain. I believe this will continue to set in motion a series of events where the government can be shrunk to a level that’s at least tolerable to minarchists and other run-of-the-mill libertarians.
How libertarian is President Donald Trump?
The answer is: not very. I think that’s been established. The man swam in a pool of cronyism sharks his entire professional life. He, through desire or necessity, has been a rent-seeker. He has used eminent domain to further his projects. He has sought special treatment from political entities both domestic and foreign to further his interests. The man is no altruist. But does that make him distasteful, or does it make the system in which he operated distasteful? Personally, I will rarely fault someone for utilizing the same processes his competition would use, so long as it does not originate from a position of government authority. And Trump never held office before his inauguration. In other words, he never utilized political office for financial gain by, say, orchestrating government access to foreign actors that overwhelmingly donated to your personal foundation or for trade groups and banks that hired your unqualified husband to give speeches at ridiculously over-inflated fees. In other words, I don’t hate the player, I hate the game.
And yes, Trump is allowing Jeff Sessions to wage the drug war, which is a sticking point to a lot of libertarian minds. But I ask you, is it better to wage a drug war and uphold the concepts of equal protection and the rule of law (while allowing Congress to do their job and vote to legalize drugs the right way)? Or is it better to arbitrarily enforce duly enacted laws based on the geography of a person and/or their willingness to bend a knee to the state and support legalization with a ton of unlibertarian strings attached?
The sadder these people are, the happier I get.
Some policy positives already achieved and in the works:
So now we come to Donald Trump’s libertarianism or lack thereof. The man, no doubt, will continue some of our military adventurism overseas. But he has already stopped our policy of running guns to terrorists and terrorist-sympathizers in Libya and Syria after the previous admin established those programs and destabilized an entire region, while thoroughly destroying the likelihood that a rogue regime would abandon its weapons programs and try to re-enter the international community (read: we came, we saw, he died). There has been no resurrection of the programs nthe last two administrations ran to ship guns into Mexico through the drug cartels, for different motives yet still in gross violation of Mexican sovereignty. And perhaps he will continue to not carry out targeted assassinations of American citizens that have never been charged with a crime, which the prior admin was all too happy to do in gross violation of the Fourth Amendment. Furthermore, he has already started to roll back our country’s association with liberty-robbing agreements like the Paris Climate Accord and the Trans-Pacific Partnership. Both of those agreements undercut the ability for American companies and consumers to freely negotiate what they were willing to exchange goods and services for. Removing our name from them is a step in the right direction, especially if it’s followed up with free trade agreements that haven’t existed in a century or more. That action is yet to be seen, but at least someone had the audacity to upset the globalist apple cart and stop a little bit of the insanity those agreements put us further along the path to.
Get us out of this circus, please!
As for civil liberties, Trump is still an unknown quantity. His statement about “roughing up” suspects is problematic to say the least. And I can only hope it was hollow bluster. But even so, it sets a very poor example and he should correct it immediately. Now, having said that, he has not furthered Obama’s policy of killing Americans without due process, but that’s not going to be enough. His willingness to stop going after businesses that exercise what should be a fundamental right to free association looks good so far. As do his overtures to Second Amendment causes. As does his willingness to tackle Affirmative Action and Title IX insanity. Holy crap, I just realized he’s been the best president on civil liberties we’ve had in recent memory. People that overlook the substance of these actions due to his boorishness need to reassess what their priorities are, in my opinion.
Furthermore, our business climate has benefited greatly from having an outsider installed as the head of the regulatory apparatus. Trump has already vowed, and started to carry out, a dismantling of the bureaucracies that stifle economic growth and freedom for Americans. From the onerous EPA regulations to CAFE standards being rolled back or passed to the states, there has been a serious uptick in confidence from the business and manufacturing sectors that Trump will get the government out of the way of prosperity. The hilarious irony there is that Trump was a crony his entire life, as I mentioned earlier. But perhaps he had no choice but to play the game the only way that could lead to success: do what the government tells you and push others out. Now, when given the reins, he seems to be more than willing to eliminate programs that he personally benefited from but that create barriers to entry for others. Yes, he could have opposed the system while benefiting from it. But let’s not pretend he’s some awful hypocrite because he played the hand he was dealt. Business “leaders” like Elon Musk, Mark Bezos, Mark Zuckerberg, Bill Gates, etc, etc, etc have done the same thing and so did their forefathers like Ford, Carnegie, Mellon, and others on back through the ages as long as there was a government agent with a hand in their pocket. So I’m willing to forgive that.
Be happy for this.
And lastly, he put what appears to be a strict constructionist on the Supreme Court in Neil Gorsuch. That is a marked improvement on any names mentioned by establishment candidates on either side of the aisle during the last campaign.
The other intangible positive results of a Trump presidency:
Another thing libertarians have always sought is a diminished reverence for elected officials and other “public servants” whose goals are often at odds with those of the people. Trump’s mere presence has caused probably 2/3 of the political spectrum to demand the reverence for the office be scaled back. They are now calling for more power in the hands of the states or localities and even ::gasp:: the people, on occasion. These are people that have been statists to the core. They are the Big Government democrats and NeoCon statist Republicans. And they are finally unified in an effort to diminish the role of the Executive Branch. This serves to re-establish the separation of powers that has become all-too-muddy with much of the congressional responsibilities being passed to Executive Branch agencies in an attempt to deflect responsibility and ensure easy reelection for entrenched politicians. The more responsibility that is pushed back into the laps of our directly elected officials and down to the state or local level, the better for us. It helps us create a more diverse political environment where “laboratories of democracy” are able to compete for ideas and human investment, rather than an all-powerful centralized state controlling everything. And one need look no further than minimum wage laws (since we have them, I’ll address it) to realize a top-down approach where the minimum wage “needed” in New York is imposed on small towns in New Mexico or Wyoming, where the cost of living doesn’t even come close, is a horrific idea. The Trump era is returning us to an ideal the founders embraced in that respect.
And he is returning us to another ideal the founders cherished: temporary service from business-people and non-careerist politicians. The flood of people on Trump’s coattails from all sides of the political spectrum is refreshing. Sure, many are moneyed and or celebrity candidacies. But so what? Its a step in the right direction any time we start to end political dynasties and careerists that sit in the Senate for 30 years as they grow further and further out of touch from average Americans. More turnover from political novices has a much better potential upside of shrinking our government than does further entrenching those who have pushed us to near financial ruin and reduced individual liberty.
Pucker up!
The net result so far (in my opinion):
So let us all embrace the non-libertarian president. For one of these reasons or for another I might have missed. But embrace it nonetheless, because it has already borne libertarian fruit, and I suspect it will continue to do so for many of the right and some of the wrong reasons. Its the best we could have hoped for and probably the most libertarian moment in America for a hundred years.
This may not be a fully appropriate subject on such a family friendly blog, but I think that information gleaned on an escort forum can give some minor insight into markets, human nature, and general understanding of the economy, which might explain why libertarianism makes little headway in the world – not that this is some great mystery.
I have to start this by the unambiguous disclaimer, which goes without saying, that not me, but a friend of mine, visited an online escort forum over a period of time, for purely economics and psychology research purposes. An in-depth look at such a website, like many other forums, to be honest, can be seen as a microcosmos of a lot of what goes on in general society.
But wait! Escorting is very illegal in Romania. A reasonable person might ask: why is there a forum for something that does not exist? So, lo and behold, the first bit of insight, based on the very existence of the forums, and the quite significant activity involved, is that maybe, just maybe, prohibition might not always work. It may be that, perish the thought, extensive black markets fill the void. Black markets with the works, full option if you will, organized crime, dangers for both buyers and sellers, shoddy product. I, myself, am shocked. I need my smelling salts right now.
Of course, as any fool knows, and by fool I mean libertarian, the market, black or otherwise, has always been here and always will be. The market is a generic term for human economic interaction; it is a fundamental expression of human nature. Government may screw with it, but won’t get rid of it. So where are we at this point? Well, we have established at least one thing: there is a market for sex (and even married men use it, to the chagrin of certain Catholics who visit this fair blog). And where there is a sale, there is ehm… information asymmetry let’s call it, which needs to be addressed. Quality control is the name of the game and was usually done, I assume for thousands of years, through let’s say word of mouth.
Enter the mighty internet, which makes things a lot easier and a lot … harder at the same time. How does one quality control the quality control information? The internet has too much stuff and nonsense. Like in all markets, there is false advertising – this may come as a surprise, but not all the pictures on escort sites are of the actual escorts. A rule of thumb (or finger, if you will) would be: if it looks too good to be true, it probably is, or you can’t afford it. This is where reviews come in, but many of them are as false as the picture. Look at it this by way of analogy, if you can’t trust a yelp review what can you trust?
Reputation on such a forum is required for both escorts and reviewers. This works up to a point, but not fully, as trusted reviewers may not be so trusted, and often end up asking for free or discount service in exchange for good reviews or by threat of bad reviews. There is also a noticeable presence of personal taste and subjective preference (ass > tits fyi), which need to be accounted for when evaluating reviews. Like in all markets.
Quality control also has a stronger ethical component than usual, due to the inherent issues in the industry. Despite the ‘all escort customers are filthy exploiters” rhetoric, many are quite aware of sex slavery, trafficking, and pimping, and are quite actively trying to avoid such situations. It is often hard to tell, and obviously there are hits and misses – more so than if the biz was legal and upfront – but people do try. There is also the ever-present possibility of underage escorts, which most avoid like the plague, or better said avoid like 10 years in prison. There are a lot of STDs to watch out for, the risk of getting robbed as part of the deal, and much more, making a trustworthy review system essential.
Beyond reviews, many escorts – or their respective pimps/madams – come to engage with customers on the forums, which sometimes lead to actually improved services. It seems there are escorts out there who are not trafficked or forced by various bad circumstances to offer this particular service, but choose this activity for a variety of their own reasons and want to do a good job at it. Of course, the real problem is, in fact, capitalism, which causes people to need money and as such do various things for it. In socialism, we all know, everyone would be rich and happy and poor women would not need to sell sex for cash. But alas, we do not live in the wonderful socialist utopia but under the heel of filthy capitalist pigs. But this is not the purpose of discussion.
To sum up: the situation somewhat works. Could have been a lot better if legal, obviously, but it is what it is. Baptists (Orthodox really but the principle stands) and bootleggers (politicians on the take). Until now, this is nothing anyone didn’t know. For me, a more interesting aspect was to observe how truly economically illiterate people are, how entitled and how assholish they can behave, which explains a lot about the greater world. This is most visible when it comes to price.
The usual deal is kind of like this: new girl in the business (or, you know, a dude, whatever floats your boat really, I did not research this, as I have heard that going to male escort websites can make you catch the gay and become ultra-gay yourself, a risk I am not willing to take). As many a beginner in a field, there is entry level price, lower than one may want, to get initial customers. If the service is of adequate quality, the number of customers increase and, drum-roll, so does price. Supply and demand, how does it work? No one knows, apparently.
If one can get higher prices for product, in any field, one usually tries to do so. Escorts also want to carefully manage the number of customers, due to many reasons. And, to be fair, if there is one damn thing one should be able to set whatever price on, it is this, the basic human right to fuck who you want in whatever conditions you want. If the price is too high, demand dries up and signals the need for it to be lowered. Markets, man, they freak me out. Pretty standard stuff, you would think. And you would be dead wrong.
With any and all price increases, the whinging starts, presumably by people who routinely go to their boss each year and demand a higher salary. After the complaining, anger rears its ugly head. Of course, not by all forum members, obviously, but by a sufficient number (I have decided I do not have sufficient disclaimers in my posts). There are, I noticed, 3 main types of reactions.
The most amusing by far it’s not fair reaction. Why does something I want cost more than I want it to cost? Why should I pay more? I don’t want to pay more! It’s not fair! It really is not! And no, I am, sadly, not joking. It’s not fair!
The second is pure rage directed to the escort. How dare she, that good for nothing, filthy, goddamn whore. Who the hell does she think she is? As her superior, why I should get to fuck her for whatever price I want. This bitch needs to be taught a lesson. And so on and so forth. Waves of messages full of insults from people who seem to have a remarkable amount of time to spend on this subject.
The third is anger at the other customers. Why it is clear that if all you goddamn morons would not pay, these escorts would not charge that much. Which, I used to think, is a meaningless truism. Every price is something people are willing to pay for. If people were not willing to pay top dollar for prime real-estate, why, it would not be so prime. Which, well, duh. But this is how the world works. People want something, they are willing to pay extra to get it. Who wants it more pays more. And some people will not afford it. Thems be the breaks.
Amusingly, the very same people, before the price raise, complain about long wait times. This escort is impossible to book! Well, high demand, limited supply, prime real estate, Economics 101. And so, prices move towards and ever changing never reached equilibrium point.
This in the end tells you a lot about the world. People entitled to get what they want for what price they want it, and unlike on escort forums, in the wide world these people can do something about it. That something being give power to some asshole or other who promises to address their grievance. Because it just isn’t fair.
A couple years back, I engaged in discussion with a conservative friend who is very philosophical and very well read. He is extremely good at making me question the assumptions I don’t even know I’m making. This conversation is loosely based on the one we had. *Standard Amateur Disclaimer: I am not, nor have I ever been a philosopher. My exposure to philosophy is minimal at best. I may trample over great discoveries of the past without even acknowledging them, or I may walk into giant bear traps without even knowing. This is a stream of consciousness article with minimal editing.
OSCAR: Natural rights are the most important concept in governance. As governments drift further away from recognition and defense of natural rights, they become more evil.
AUGUST: Absolutely, natural rights like free healthcare, abortions, and public accommodations.
OSCAR: Those aren’t natural rights, they’re infringements on natural rights.
AUGUST: Infringements like profiteering, not paying your fair share, and bigotry?
OSCAR: No, those are consensual activities and mere thoughts.
AUGUST: So, mere thinking and consent are the difference between rights and infringements?
OSCAR: Well, no. Those are characteristics of things that are rights, but rights aren’t rights just because they’re mere thoughts or consented to. Rights are consequences of self-ownership.
AUGUST: Self-ownership means you have unassailable natural rights, like the right to life?
OSCAR: Yes, self-ownership includes an unassailable right to life.
AUGUST: You’re saying that, because you have self-ownership, you have an unassailable natural right to life? How do you know this? Does nature somehow affirm this natural right? Or does nature indiscriminately kill you, despite your unassailable right to life? Or is it that people are somehow physically prevented from killing you?
OSCAR: Well, no, none of that. Rights are more about morality than some law of physics.
AUGUST: Oh, morality! Right and wrong! Virtue and vice! So, since people have an unassailable right to life, it’s wrong in all situations to kill somebody, including in self-defense, the death penalty, and war?
OSCAR: There are certainly exceptions. For example, self-defense is the clash of one’s right to life against another’s right to life. In such a situation, the wrong is in the initial aggression that causes the clash of rights.
AUGUST: I see, so it’s okay to kill your boss for the initial aggression of exploiting your labor.
OSCAR: No, of course not. Exploitation isn’t infringing a right. You aren’t forced to work for your boss.
AUGUST: So rights mean that you shouldn’t be forced to do things?
OSCAR: Yes, rights are things you shouldn’t be forced to do without your consent.
AUGUST: So, criminals shouldn’t be forced to respect other people’s rights?
OSCAR: Well, uhm…. rights only extend so far. You don’t have a right to violate other people’s rights. You may only violate their rights when you have their consent or when not violating their rights would cause one of your rights to be violated.
AUGUST: That seems to rely a lot on what a right is. What is a right?
OSCAR (now wary of being corner cased to death): Umm, a right is . . . a right is easier to describe than to define. A right is dependent on the interpersonal interaction. A child has different rights in respect to their parents than in respect to a stranger. A right is also dependent on the specific context. Killing a burglar stealing your wallet from your bedroom in the middle of the night is different from killing a fraudster who stole your money by grabbing your credit card information.
AUGUST: So a right is some undefinable thing that changes wildly with context?
OSCAR: Well, no. Rights change based on the authority relationship. You have no liberty in view of a superior authority, except as voluntarily ceded or compelled by an even more superior authority. See, for example, the town having no authority in view of the state, except where the state or federal government grants it to the town. In contrast, you have total liberty in view of an inferior authority. A dog can in no way morally restrain you, except for when you voluntarily abstain for the dog’s benefit. It is only in view of a co-equal authority that rights have any meaning. It is the equality of man and human authority that give meaning to rights.
AUGUST: So if rights are based on authority and the equality of man, are you saying that rights are attempts to prevent inequity between men and between man and institutions created by man?
OSCAR: Yes! As with any co-equal relationship, there are certain things solely in the domain of the first, other things that are solely in the domain of the second, and some things that are in an overlapping domain between the two. For example, parenting.
AUGUST: So, in this Venn Diagram description, your domain is your rights with respect to me, my domain is my rights with respect to you, and the shared domain is collective rights between us and conflicting rights between us. While that may be helpful on a theoretical level to be able to categorize things, it leads into the question, how do I know what is in your domain, what is in my domain, what is in our shared domain, and what is in neither of our domains? In other words, what rights are there?
Hopefully this conversation is useful to spark dialogue. From this, you can see that my contention is that rights are the boundaries erected between rightful exercise of authority between co-equal people and immoral abuse of authority between the same co-equal people.
If this type of article has enough interest, I may continue to write in this style in the future, continuing this conversation.
It’s funny how everything illegal is universal. Drugs, gambling, prostitution. Making a law to fight it doesn’t snuff it out. It’s just a reality. It’ll be done somehow, someway.
I live in Daejeon, South Korea. I went north to Seoul to see my friends off for their going-away party. It’s about an hour away on the fast train.
At the bar we banter and celebrate our friends’ imminent departure. Shockingly fast, the games began.
강남스타일
My friend took out five dice and tossed them onto the pool table. We’re gonna play Threes. I didn’t know how to play but learned fast. Skin in the game incentivizes immediate understanding. You roll the dice up to five times. Low score is the winner. Every roll you have to keep at least one die. A three is worth zero and everything else is face value. A score of four is respectable and under is gravy.
We started out low stakes, a buck a player. The rounds came and went, winner taking seven or eight per. One game went particularly long—twenty bucks to me. I’m up $15.
We ratcheted up. Buy-in went from a buck to ten. It really is remarkable how the changing stakes heightens your focus.
We’re not high-rollers. We’re poor-ish English teachers. Every game now is worth close to $100. Green notes stacked on the felt, this is serious money for us. And I hate losing.
I lost a few rounds and was very near to bowing out. I throw ten bucks in anyway. I played conservatively and won the pot. Eighty bucks to me.
That was the end of my line, for the most part. I had to float my friend $20 for two bets and enough-is-enough after they raised the stakes to $20 a roll. I later learned that one of the players was a bit of a gambling addict. The Madness had set in as I wisely stepped out. I became an accepted spectator. The last few games netted the winner something like $180 each.
The bar turned a blind eye to all of this. They were excited for the business. The game was organic and started of its own accord. The people who wanted to play flocked to the table and those that didn’t did not. People who didn’t want to put money down still could watch and bought drinks to entertain themselves whilst vicariously living through our wallets. No one gave a shit. It was glorious.
It struck me during the game how we all instantly agreed to the rules. People came together to play a stupid game for a shot at making some money. And those that won and lost understood that the rules to play were arbitrary. But they were agreed to. If it’s arbitrary for one and all then it’s not so arbitrary after all. A beautiful system with no leaders, no kings—simply a mutual understanding between blokes, a glint in the eye for some weekend cash.
We self-regulated. There was no muscle involved, but we all understood that if someone tried some fuckery, there were plenty of eyes and arms to make sure the money didn’t flee unjustly. Having money on the felt makes one very mindful.
No police; no guards; no threats; no violence; no force. Just fun.
I ended up $26 even after I gave the twenty to my friend. Damn good in my book, paying for the entertainment and festivity for three hours and still ending up in the green. Another fun foray into the life of “sin” that people wrongfully cast shade upon.
At least half of the fun is the seediness of it all. Adrenaline and cash naturally make up the rest. That’s what the government can’t ever learn: That which is illegal is inherently desirable. Tell people that they can’t do something and a portion of the population is going to say “Fuck off” simply to thumb their nose.
I know I do.
It was a beautifully organic experience. Out of sight from the law, and everyone regulating each other voluntarily. Curious how that seems to work out.
In both England and the United States, the legal establishment, helped by would-be reformers, first curtailed the power of grand juries to reach independent judgments, and gave grand juries the power to abuse power on behalf of prosecutors. Then the enemies of the grand jury turned around and indulged in concern-trolling about how grand juries didn’t give adequate protection to suspects. This softened up the grand jury system, making it more vulnerable to attack, and in some cases to abolishing the institution or making it optional.
Zachary Babington (1611-1688) was a functionary in Restoration England’s judiciary system. He was at various times an associate court clerk, a deputy clerk, and a justice of the peace. Zachary’s brother Matthew had been one of the chaplains to Charles I, who was killed when his royal tyranny provoked a counter-tyranny by revolutionaries. That unpleasantness was supposedly over after Charles II, son of the “martyr,” took the throne, but the new king’s supporters were on their guard to safeguard royal prerogatives and minimize the opportunities for the people to thwart the royal will. Zachary may well have learned from his pious brother about the perils of trusting the judgment of the people. So Zachary had a crack at grand juries, trying to limit their usefulness as shields for the rights of suspects. Fortunately, Zachary did not prevail at that time.
In a 1676 book, Advice to Grand Jurors in Cases of Blood, Zachary Babington complained that grand jurors often dared to ignore the judge’s instructions, and to refuse to indict suspects, or to indict suspects for manslaughter when the judge wanted a murder indictment.
“Hi, it’s me again, William Penn. The judges wanted me punished for preaching in the streets, and when the jurors refused to convict, the jurors got punished, but some of the jurors fought their case in a higher court and won, and here we are…isn’t it weird how I keep turning up everywhere?”
…as well as the House of Commons had told judges they couldn’t punish jurors for making “wrong” decisions. Most pertinently for our purposes, the House of Commons had raked Chief Justice John Kelynge over the coals for his treatment of grand jurors. Don Jordan and Michael Walsh wrote that Kelynge was so biased toward suspects and defendants that he “made George Jeffr[e]ys, ‘The Hanging Judge,’ [look] like Rumpole of the Bailey.”
Lord Chief Justice Jeffreys presided at the Bloody Assizes, but he was still a piker next to Kelynge (not shown)
Kelynge had punished grand jurors for refusing to indict for murder in homicide cases, and the Commons warned Kelynge that he had to allow both grand jurors and trial jurors vote how they wanted, without penalty.
Babington apparently realized that, deprived of their power to punish recalcitrant grand jurors, judges could only rely on persuasion to get grand juries to fall into line. So in his Advice, Babington tried to use argument to achieve what threats and punishment had failed to do in Kelynge’s situation. Babington urged grand jurors to give the prosecution, not the suspect, the benefit of the doubt, and to err on the side of overcharging the defendant. If the defendant was innocent, or was guilty of a lesser offense, the trial jury could figure that out later. Babington specifically applied his principles to homicide cases. So long as the prosecution showed evidence that the suspect had committed a homicide, Babington said, the grand jury should indict for murder, even if there was evidence that might justify, say, a lesser charge of manslaughter. The grand jurors “are only to prepare fit matter for the Court to proceed further upon, and to make a more diligent inquiry after.” Only the trial jury can figure out the true nature of the crime after hearing “both sides” – Babington assumed the grand jury would only hear the prosecution’s side, and seemed to think that this was prejudicial…to the prosecution.
“There is very much difference in Law betwixt an Inquiry and a Trial, betwixt a Presentment and a Conviction,” said Babington, and there was a lesser standard of evidence for the grand jury’s “Presentment” – “if they find upon their Evidence, that the party said to be slain in the Indictment, by the person there charged with it, with the time, and place, and manner how, they are to enquire no farther into the nature of it.” If the charges the grand jury files turn out to be excessive, it was up to the trial jury to exonerate the defendant – “however it passeth fairly out of [the grand jurors’] hands, they may more clearly than Pilate wash their hands in Innocency from the Innocent blood of such a person.”
Pontius Pilate washes his hands to symbolize his total innocence of shedding innocent blood. (Matthew 27:24)
Babington was discussing cases of murder – then automatically a capital crime – but his reasoning would justify the grand jury in giving the prosecution the benefit of the doubt in any kind of case.
(Babington’s view of a grand jury’s functions were articulated in 2014 by, of all people, an avowed libertarian deploring the grand jury’s failure to indict police officer Darren Wilson – “the likelihood that Darren Wilson would have been acquitted if he had faced a homicide charge in connection with the death of Michael Brown does not mean he should not have been indicted….A public airing of the evidence, with ample opportunity for advocates on both sides to present and probe it, is what Brown’s family has been demanding all along….”)
Actual grand juries do not seem to have taken Babington’s Pilatian advice. While the evidence is incomplete, Professor J. S. Cockburn says “surviving gaol [jail] calenders suggest that in the seventeenth century approximately twelve per cent. of all assize bills were returned ignoramus” – that is, grand juries disagreed with the prosecutors in 12 percent of cases and refused to indict.
A colorful figure and prolific author, Henry Care, eloquently rebutted authors like Babington. Care published the book English Libertiesin 1680, expressing doctrines directly contrary to Babington’s, and more in line with the real-world activities of grand jurors.
Care said that grand jurors, “if they be doubtful, or not fully satisfied” about the truth of the accusation against a suspect, should not file charges.
People may tell you; That you ought to find a Bill [of indictment] upon any probable Evidence, for ’tis but matter of Course, a Ceremony, a Business of Form, only an Accusation, the party is to come before another Jury, and there may make his Defence: But if this were all, to what purpose haye we Grand furies at all ?…Do not Flatter yourselves you of the Grand Jury are as much upon your Oaths as the Petty [trial] Jury, and the Life of the man against whom the Bill is brought, is–in your Hands…The [famous judge and legal author Edward Coke]…plainly calls the Grand Jury-men all wilfully forsworn: and Perjured, if they wrongfully find an Indictment; and if in such a Case the other Jury [trial jury] through Ignorance, &c. should find the person Guilty too, you are Guilty of his Blood as well as they: but suppose he get off there, do you think it nothing to Accuse a man upon your Oaths of horrid Crimes, your very doing of which puts him, tho never so Innocent, to Disgrace, Trouble, Damage, danger of Life, and makes him liable to Outlawry, Imprisonment, and every thing but Death itself, and that too for all you know may wrongfully be occasion’d by it, your rash Verdict gaining Credit, and giving Authority to another Jury to find him Guilty…
Care wrote that, before a grand jury can indict a suspect, the testimony must be “clear, manifest, plain and evident.” The grand jurors must “diligently inquire” into the credibility of the witnesses.
The prophet Daniel exposes the lying witnesses who falsely accused Susannah
It was Care’s defense of English liberties, not Babington’s attack on them, which became a popular work in the American colonies. Not only did Care’s English Liberties fill shelf space in colonial libraries, its content was invoked by the Patriots of the Revolutionary era in defending American liberties against British oppression. The side which cited English Liberties was the side that won the American Revolution, while the side that looked to the likes of Zachary Babington for advice was the losing side. At least for the moment.
And in both England and America, the influential eighteenth-century jurist William Blackstone came down on the side of the duty of grand jurors to protect suspects against unfounded charges.
Sir William Blackstone
In Blackstone’s words, grand jurors should only vote to indict “[i]f they are satisfied of the truth of the accusation.” Blackstone spoke of a “strong and two-fold barrier, of a presentment [grand-jury indictment] and a trial by jury, between the liberties of the people, and the prerogatives of the crown.” Before approving charges, at least twelve grand jurors had to be “thoroughly persuaded of the truth of an indictment” – “remote possibilities” were not enough.
While America was going through its founding era, on the other side of the Atlantic English grand juries blocked indictments in 10%-20% of cases – so for every ten suspects, one or two were cleared without the danger, expense, anxiety and humiliation of a public trial.
But the legal reformers were circling like birds of prey, waiting to enfeeble and then devour the grand jury system. Jeremy Bentham, the utilitarian legal reformer, denounced the grand jury in the eighteenth century, but added that the legal establishment wanted to keep the system: “lawyers and their dupes never speak of [the grand jury] but with rapture.”
If only that were so! In the nineteenth century, many lawyers and judges, in England and America, joined the ranks of the reformers. “Probable cause” became the standard which grand juries were told to follow in deciding whether to indict. This is certainly curious in the American case – the Bill of Rights does indeed mention “probable cause,” but that’s in the Fourth Amendment, dealing with warrants, rather than in the Fifth Amendment’s grand jury clause.
Probable cause doesn’t seem to be the same thing as believing the suspect is guilty. In fact, the concept is kind of vague. As Professor Orin Kerr put it: “In one study, 166 federal judges were asked to quantify probable cause. Their answers ranged from 10% certainty to 90% certainty, with an average of 44.52% certainty.” Perhaps that sort of vagueness is tolerable when judges or magistrates are issuing warrants, but not in the case of grand jurors accusing their fellow citizens of serious crimes.
Not only was the standard of proof watered down, but grand juries were limited in the kind of evidence they could hear. The only outside evidence they were entitled to examine was the evidence provided by the prosecutor (including private prosecutors in England – contradicting Justice Brown, English reformers said the grand jury was not an adequate protection against unjustifiable private prosecutions). Members of the public could not submit evidence to grand juries, the legal establishment made clear – not even suspects could send in affidavits and lists of witnesses with information favorable to them. Unless the grand jurors had personal knowledge of an alleged crime, they would have to rely for their information on what the prosecutor chose to spoon-feed them, and then they had to vote on the proposed indictment based on the loose “probable cause” standard, with the evidence stacked in favor of indictment by the prosecutor.
The New York judge Sol Wachtler, an opponent of grand juries who supposedly said a grand jury would indict a ham sandwich…
…had further animadversions against grand juries in his prison memoir, After the Madness. (The judge was convicted of stalking and harassing his former lover.)“If anyone should try to convince you that the grand jury is not a device used by prosecutors to garner publicity at the expense of someone still presumed innocent, watch out! The deed to the Brooklyn Bridge is probably in his back pocket.” That sort of misbehavior, of course, is the fault of the prosecutor, not of the grand jury. And somehow, even when they bypass grand juries, prosecutors find ways to generate prejudicial publicity about their cases.
Ovio C. Lewis, a law professor who served on a grand jury in Cleveland, Ohio, decided that the grand jury system was defective in comparison to the reformers’ favorite objective of a preliminary hearing before a judge. Writing in 1980, Lewis said: “In most cities where the grand jury is used it eliminates fewer than twenty percent of the cases it receives. In Cleveland, Ohio, the figure is seven percent; in the District of Columbia, twenty percent; and in Philadelphia, Pa., two to three percent.” From these figures, we see that at least some people were getting exonerated even under the watered-down grand jury system which had come to replace the robust grand jury of the founding era. It would be nice to know what those figures would be like in the case of a grand jury which fulfilled the functions described by Care and Blackstone: investigating and sifting the evidence and only indicting people whom the grand jurors are convinced are guilty.
Returning to the 19th century: some English grand juries – especially in big cities – called for their own abolition. These grand juries were influenced by presiding judges who discussed the alleged uselessness of the grand jury in front of the grand jurors themselves. The Birmingham Daily Post criticized one of these judges in 1872. Even though the newspaper agreed with the judge about the desirability of abolishing grand juries, it said it wasn’t cricket to harangue the grand jurors themselves on the subject:
The Recorder of Birmingham, in his charge the other day, made the usual remarks about the uselessness of grand juries. . . . It is unpleasant enough to have to sit in a stuffy room for two or three days, against one’s will, and it certainly does not render the infliction more tolerable to be penned up in a box, and be publicly told that one is incompetent and useless, and out of date, and in the way-nothing more in fact, than a sort of antiquated machine, less ornamental than a barrister’s wig, and less useful and important than the wheeziest of ‘criers of the Court’.
With these attitudes, it’s hardly surprising that judges and juries were making their talk of grand juries’ uselessness into a self-fulfilling prophecy.
Parliament put grand juries on hold during the First World War, as a supposed emergency measure. This simply whetted the appetite of the judicial establishment for a permanent, peacetime ban on grand juries, and such a ban was finally achieved by Act of Parliament in 1933.
You know why else 1933 was a bad year for liberty?
Albert Lieck, chief clerk (or former chief clerk?) of London’s Bow Street Police Court, rejoiced at the abolition of the grand jury, while inadvertently suggesting reasons the institution should have been retained. Lieck acknowledged that grand juries had sometimes released suspects: “Here and there a bill [of indictment] was thrown out, but on no discoverable principle.” Perhaps the grand jurors hadn’t been satisfied of the suspects’ guilt?
Lieck uttered a non-sequitur which one would associate with Yogi Berra more than with a distinguished British bureaucrat: “the real security against oppression lies not in outworn judicial machinery [i. e., the grand jury], but in the alertness and resolution of the citizen.” Of course, grand jury service has the potential to provide citizens a vehicle to exercise their alertness toward the criminal-justice process.
American critics of the grand jury cited (and still cite) abuses which are not in any way required by the Fifth Amendment. That amendment simply says you need an accusation from a grand jury in order to be brought to trial for a sufficiently serious crime. The Fifth Amendment doesn’t say grand juries should be dependent on prosecutors for their information, or interrogate witnesses without their lawyers, or wield overbroad subpoena powers, or act in complete secrecy (unless the prosecutors chooses to leak information, of course), or fail to keep records of their proceedings. Critics have harped for a long time on these “Star Chamber” features of grand jury procedure, suggesting that the only cure is to bypass the grand jury and have magistrates or judges hold preliminary hearings, where both sides can present evidence and argue over whether probable cause exists. Then the magistrate or judge, after such an open hearing, would decide if there is probable cause to bring the suspect to trial. This type of “reform” has been adopted in England, and in many U. S. states.
The problem with such a “reform” is that it cuts the public – at least the informed portion of the public which has actually heard the evidence – out of the decision whether to bring charges against a suspect. The suspect is dragged into a public hearing by the accusation of a prosecutor, and put at the mercy of a judge who – at least in a well-publicized case – may well feel the voters – who generally don’t know the details of the case but know that the suspect is guilty – breathing down the judicial neck and demanding a trial. With the vagueness of the term “probable cause,” it wouldn’t take a whole lot of evidence for the judge to put the case down for trial, if that’s the judge’s mood at the time. Not to mention the loss of the opportunity for nullification if the defendant, while technically guilty, is morally innocent and doesn’t deserve to be dragged through a trial.
There are some useful features which were traditionally associated with American grand juries. These features are not required by the Fifth Amendment, but they provide some historical context to refute those who think the founders would have been happy to do without grand juries. Grand juries used to have (and to a greatly limited extent sometimes still have) responsibility for making recommendations relating to the problems of their communities: from fixing bad roads to dealing with polluted streams to making new laws, American grand juries have historically often broadened out from simply looking at local criminal cases.
Sometimes, and this is hard to believe nowadays, grand juries, on their own initiative, looked into corruption and misconduct by local officials, including even prosecutors and judges and cops and jailers. Sometimes grand jurors took the bit between their teeth and looked into certain types of local crime which the prosecutors and judges would just as soon not look into – maybe because the prosecutors and judges were trying to sweep that crime under the rug.
Whatever we think nowadays of these crusading, self-assertive grand juries from history – and the Fifth Amendment doesn’t require that grand juries play this role – we can reject the idea that most of the founding generation took a dismissive view of grand juries or would have been willing to abolish or sideline them, or to abolish their constitutional role in protecting suspects from overzealous or corrupt government prosecutors and judges.
The point of having two juries – a grand jury and a trial jury – is to have the grand jury make a broad inquiry, with comparatively few technical rules, in order to find the truth, and if the grand jury believes the charge, then it’s time to have the evidence heard by a trial jury under much more rigid procedural rules. For serious enough charges, it should take these two juries – one acting broadly and informally, the other following careful rules – to agree that someone is a criminal before that person can be punished as a criminal.
Now, in the real world, where most criminal charges are resolved through plea-bargaining, I’d advocate a more limited objective: To make sure that a person suspected of a serious crime has his case considered by at least one jury – and since cases are generally resolved with pleas before a trial jury can be called, that one jury would have to be the grand jury. There should be laws to prohibit plea negotiations from beginning in serious cases until after a grand jury has issued its indictment(s). We may have come full circle to the days of Henry II – grand juries are usually the only criminal juries involved in a case, and the trial procedure is almost as unreliable as in Henry’s day – a plea negotiation approaches in arbitrariness the old dunking-in-cold-water procedure when it comes to sorting out the innocent from the guilty. All the more reason to keep grand juries, so that some type of jury, at least, will review serious cases.
Is there any chance that the right to a grand jury, as intended by the Founders, will be restored any time soon? Probably not. The political and judicial establishment seems to have no particular interest in encouraging such a degree of citizen involvement. They either want to keep grand juries on a tight leash, acting on the limited evidence the prosecutors spoon-feed them, or to keep them on the sidelines, taking no role in cases unless a prosecutor needs political cover for a controversial decision.
And many regular citizens are parading around demanding that the right to a grand jury be abrogated.
And of course advocates of a restored grand jury system will be called racists.
Well, it’s too bad, but there it is.
Works Consulted
Richard L. Aynes, “Unintended Consequences of the Fourteenth Amendment and What They Tell Us About its Interpretation,” 39 Akron L. Rev. 289 (2006).
William J. Campbell, “Eliminate the Grand Jury,” 64 J. Crim. L. & Criminology 174 (1973).
Nathan T. Elliff, “Notes on the Abolition of the English Grand Jury,” Journal of Criminal Law and Criminology, Volume 29,Issue 1 (May-June) Summer 1938.
Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury 1200-1800. Chicago: University of Chicago Press, 1985.
Don Jordan and Michael Walsh, The King’s Bed: Sex, Power and the Court of Charles II. London: Little, Brown, 2015.
Orin Kerr, “Why Courts Should Not Quantify Probable Cause” (March 28, 2011). The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz (Klarman, Skeel, and Steiker, eds), pages 131-43 (2012); GWU Law School Public Law Research Paper No. 543. Available at SSRN: https://ssrn.com/abstract=1797824
Andrew D. Leipold,”Why Grand Juries Do Not (and Cannot) Protect the Accused,” 80 Cornell L. Rev. 260 (1995). Available at: http://scholarship.law.cornell.edu/clr/vol80/iss2/10
Ovio C. Lewis (1980) “The Grand Jury: A Critical Evaluation,” Akron Law Review: Vol. 13 : Iss. 1 , Article 3. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol13/iss1/3.
Albert Lieck, “Abolition of the Grand Jury in England,” Journal of Criminal Law and Criminology, Volume 25, Issue 4, November-December (Winter 1934).
Kenneth Rosenthal, “Connecticut’s New Preliminary Hearing: Perspectives on Pretrial Proceedings in Criminal Law.” University of Bridgeport Law Review, Volume 5, Number 1, 1983.
Suja A. Thomas, The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries. New York: Cambridge University Press, 2016.
___________, Nonincorporation: The Bill of Rights after McDonald v. Chicago, Notre Dame Law Review, Vol. 88, 2012.
Mary Turck, “It is time to abolish the grand jury system,” Al Jazeera America, January 11, 2016, http://america.aljazeera.com/opinions/2016/1/it-is-time-to-abolish-the-grand-jury-system.html
Rachel A. Van Cleave, “Viewpoint: Time to Abolish the ‘Inquisitorial’ Grand Jury System” (2014). Publications. Paper 656. http://digitalcommons.law.ggu.edu/pubs/656.
Sol Wachtler, After the Madness: A Judge’s Own Prison Memoir. New York: Random House, 1997.
_________, “Grand Juries: Wasteful and Pointless,” New York Times, Opinion, January 6, 1990, http://www.nytimes.com/1990/01/06/opinion/grand-juries-wasteful-and-pointless.html.
Richard D. Younger, The people’s panel: the Grand Jury in the United States, 1634-1941. Providence, RI: American History Research Center, Brown University Press, 1963.
And why is “ignoring” things you don’t agree with not just as (if not more) effective? Because dumb-ideas can only transition from ‘dumb’ to ‘dangerous’ when they are being actively spread. And nothing spreads bad ideas quite like repression. Just ask any teenager.
classmate from law school who was a philosophy major. He and I enjoy sipping bourbon, smoking pipes, and talking politics, philosophy, and theology.
domain; only you have the authority to make decisions that result in consequences to only you. Thus, you are infringing on somebody else’s rights when you do something that keeps them from exercising sovereignty over themselves and their property.
21st century America has not banned coffee, thank the Coffee Pope, but we do have prohibition of drugs. The arguments for caffeine prohibition of the past are the same arguments used to prohibit drugs today: “The money flows out of the country;” “ It makes God angry when you use an intoxicant;” “Undesirables use it and listen to music I find offensive;” “ It causes crime and dissent among the masses;” “Drugs have no legitimate medical use.” These arguments are as hollow now as they were 500 years ago and the banners are as big of hypocrites as ever. Three out of our four past presidents are known to have used drugs and yet happily continued the war on drugs. The true reason for drug prohibition is power and that is one hell of a drug. Currently in the 103rd year of drug prohibition, America has been slow to reverse course, but public opinion is changing and that is what ultimately lead to the reversal of coffee prohibition in Mecca, Sweden, and Prussia. So the next time you’re in the breakroom having a cup of coffee with a coworker, share what you have learned about the tyrants that banned the drink they are enjoying. Maybe you’ll help turn the tide of public opinion.
.jpg "In one part of the book, Care urged voters to elect independent, incorruptible men to Parliament - Care was charged with seditious libel for these statements, which the government considered a reflection on its Parliamentary supporters.")
