“Well, if you hate the government so much, why don’t you just move to Somalia?!”
This is one of the most common retorts to libertarian ideas along with “libertarians are just Republicans who want to smoke pot.” I’ll save that one for another time.
Progs like talking about Somalia because they think it proves that libertarian ideas about limited government lead to chaos and misery.
As I have said before, there are 3 kinds of derp:
wrong: 2 + 2 = 5
very wrong: 2 + 2 = -17
not even wrong: hammer + tomato = January
The idea that Somalia is a libertarian paradise is solidly in the not even wrong category.
Mogadishu beach
Let’s examine the claim in detail:
1. Somalia is an awful place.
2. Somalia has no government.
3. A lack of government causes misery.
4. Libertarians want to abolish the government.
5. Since a lack of government causes misery, libertarians are wrong.
All of these statements are wrong or irrelevant.
Yes, compared to most countries, Somalia is a bad place to live. However, in terms of life expectancy, infant mortality, per capita income, and other measures, it’s not that much worse off than the countries around it. The main problem with Somalia is not its weak government; it is poverty. This is the same problem that Somalia’s neighbors Kenya, Ethiopia, Eritrea, and others have.
Somalia does have a government. True, it is a weak, provisional government with limited control, but it still has a budget, a parliament, a president, a military, international recognition, etc. Most articles about Somalia are careful to note that it has not had a central government since 1991. They don’t say it has no government. In fact, Somalia has at least 2 major governments (the one based in the capital and the other based in the northern region) and many minor governments headed by warlords.
A lack of government does not cause misery. Many countries with parliamentary systems have gone through long periods with no government because no coalition could win a majority and thus elect a prime minister. Countries on this list include Belgium. Did Belgium fall apart during the 589 days between 2010 and 2011 when it had no government? No.
Libertarians do not want to abolish the government. In the last election, the libertarian presidential candidate got about 3% of the vote and he ran on a platform that included saving Social Security. Most libertarians do want much less government, but there is an important difference between less and none even if some people are too dumb or dishonest to notice.
Lasa Geel rock paintings
The evils of too much government far exceed too little government. Who would choose to live under the totalitarian government of North Korea over the semi-anarchy of Somalia? At least in Somalia I wouldn’t have to worry about me and my entire family for 3 generations being sent to a prison camp because I forgot to put on my mandatory Dear Leader pin. Unlike North Korea, you can leave Somalia without being shot at by border guards.
If Somalia proves anything, it is that socialism always leads to death and suffering. Somalia was a socialist country from 1969 to 1991. It was a one-party socialist state officially allied with the USSR and modeled on it. The USSR switched sides after socialist Somalia attacked socialist Ethiopia (not the first time one socialist country attacked another) in 1979. The dictator of Somalia became increasingly authoritarian after a failed coup which resulted from the failed war in Ethiopia. The dictator was finally overthrown in 1991 by an alliance of rebel groups which then turned on each other.
In short, saying that Somalia proves libertarians are wrong is like saying that a bank robbery proves that money is worthless. No, the reason Somalia is screwed up is because they did the *opposite* of what libertarians want just like the reason the bank got robbed is *because* the money is worth something.
And that is all that needs to be said to the “why dontcha move to Somalia” morons.
Time to piss off a bunch of anarchists! Hopefully, you’ll take it in stride and disembowel me in the comments.
Anarchy is quite the opposite of Communism when it comes to political structure and social order. However, when it comes to the relation of these ideas to their respective political segments, Anarchy is the Communism of the Right (or if that’s too harsh for your sensibilities, it’s the Communism of the Libertarian movement). How so? There are three major similarities: 1) The likelihood of long-term, stable implementation, 2) the resultant social order, and 3) the big lie that must be believed in order to accept the philosophy.
Stable Implementation
We’re very quick to trot out the old cliche that Communism has failed every time it was tried. When the accusation is turned back to us, we quickly disavow Somalia and begin thinking through history for a good example. However, the search through history ends very differently when looking for a successful minarchy versus a successful voluntaryist society. There are certainly successful examples of both, but the difference is in scale. History is rife with examples of empires controlling a city or region with a small military presence and a minimal government. Sure, the occupiers tended to plunder the occupied lands, but in comparison to today, such plunder would be considered libertopian. Anarchic societies are comparatively rare and quite fleeting. Usually, they are either quite small and isolated (nomadic tribes), or extremely volatile (territorial California). In essence, an anarchy does not have what is required for a stable society: protection from conquerors, safety from bad actors, and normalization of trade.
As much as we all wish the world worked more like theory, it usually doesn’t. This is because we ignore or misestimate some of the factors that significantly affect the result. Such is how it is in a voluntaryist society. These societies are unstable for many reasons, especially because they are bad at protecting their citizens from conquerors and from bad actors. With limited recourse available, regulating and normalizing trade is outside the reach of an anarchic society of any real size. As such, any anarchic society would necessarily subdivide into small tribes with an extreme distrust of outsiders. It’s hard to imagine the amount of devastation that would be required to create these small anarchic tribes in the modern world. The sheer population density of modern cities would render it impossible sans cataclysm.
Resultant social order
Communism requires the deaths of millions in order to be properly implemented. In essence, instinctual self-preservation needs to be beaten and bred out of a populace before they are able to accept communism. The New Soviet Man was always a generation away because the commies could never kill off that self-preservation instinct that is endemic to all nature. The resultant social order was extremely distorted and self-focused. When staying alive meant selling out the next guy, the next guy ended up in the gulag and you slept soundly that night.
Similarly, anarchy requires massive upheaval to be implemented, and the resultant social order has invariably been harsh, unjust, and lacking in technological growth. Despite the immense gold reserves in mid-19th century California, it was a horrible place for many of the adventurers looking for a boon. Although there was a nominal military government in place, it was wholly unable to police the vast expanse of California territory. In cities like Los Angeles, Monterey, and San Francisco, murders in the streets were common. Theft, fraud and violence were daily hazards. There was such a vacuum of power that vigilance committees were formed on a regular basis, enacting their form of justice, usually politically based and manipulated such that the leaders were enriched at the expense of the citizenry. Rather than the idyllic picture of small virtuous tribes scattered across the countryside or the progressive image of a futuristic city filled with happy prostitutes, heroin vending machines, and no taxes, the history of California shows a dystopian mix of these two images. There were small islands of virtuous, justice-seeking families floating in an ocean of rights-violating horror.
Much like the communists’ aggression borne out of survival, the bad actors aggressed against citizens. However, unlike the communists, the bad actors were aggressive because they could get away with it.
The Big Lie
Acceptance of communism requires belief in a faulty premise. Namely, the premise that individuals do not have agency. Government is greater than the individual and thus can appropriate the property and labor of its citizens. Much of the horrific nature of communism derives from this faulty premise.
Likewise, acceptance of anarchy also requires belief in a faulty premise that there is no valid authority over an individual. In reality, people are quite unstable when completely given over to their own devices. Both outside conquerors and the less savory elements of society show the results of solely individual authority: the complete inability of society to protect citizens from outside conquerors, make citizens safe from bad actors, and normalize trade.
We can always have discussions of what level authority we rightfully have over one another, and, in extension, what authority society and its civil government legitimately have over us. However, the idea that the individual is not subject to any authority (whether legitimate or not, virtuous or not), results in similar absurdities like when the government is fully authoritative. Might makes right. Exploitation over altruism. Vulnerability in the face of outside threats.
I intend to take the Smoot-Hawley Tariff, which has been mocked again and again as the very epitome of boringness, and I will make the subject…anyone?…I will make the subject interesting.
To start with, I won’t call it the Hawley-Smoot Tariff, because…anyone?…because my focus is on Smoot, not Hawley. So I’ll put Smoot’s name first.
The Smoot in Smoot-Hawley was Reed Smoot, a Republican U. S. Senator from…anyone?…Utah. We first learned about Senator Smoot in Part One, in which Senator Smoot’s…anyone?…credentials were challenged because of the whole polygamy thing. After the Mormon church, of which Smoot was a leader, dropped the practice of polygamy, the U. S. Senate decided to…anyone?…decided to let Smoot keep his seat in the Senate, to which he was repeatedly re-elected, even after Senatorial elections were taken away from the state legislatures and given to the voters.
Now, class, can anyone tell me what the Smoot-Hawley Tariff was all about? You can? And here I thought you weren’t paying attention. From your spittle-flecked responses, I can see that you can identify the Smoot-Hawley Tariff as a protectionist law passed by Congress in 1930, in the depths of the Depression, and that this law has generally been blamed for making the Depression worse. In the unlikely event there’s anyone here who doesn’t already know this stuff, here’s a Wikipedia article.
After Smoot got together with Hawley, things went downhill
Ha ha, seriously, here’s Smoot and Hawley:
Senator Smoot is…anyone?…the one with the glasses. And the pocket with pens in it. Why can’t you students be more like Smoot, and less like that Bueller fellow? Where is Bueller, anyway?
The dynamic duo of Smoot and Hawley put forward their protectionist bill in 1929, and it passed in 1930. It is a key event in economic history, and Smoot, a hard worker with one of the best heads for figures in Congress, was proud of his work, even though it didn’t save him from a Democratic sweep shortly thereafter which put him out of the Senate.
But the Smoot-Hawley Tariff has also gotten a good deal of attention in the history of literature. To explain, let’s go back a bit.
Congress tightened up the obscenity laws in 1873, thanks to the lobbying efforts of this man, who was promptly made a postal inspector to help enforce the law. Can you identify him, class?
Yes, it was Anthony Comstock (1844 – 1915).
But this isn’t a history of postal censorship, so let’s move on from Comstock and look at the U. S. Customs.
Groundhog Day? No, not that kind of U. S. customs.
This kind:
U. S. Custom House, New York City, 1879.
I chose the New York City customs house for my illustration because New York City was a key point of entry for foreign literature coming into the country – or trying to come in (Los Angeles and Chicago were also key ports of entry). Until 1873, Customs officials policed a federal ban on the importation of obscene pictures and photos, but not books. The Comstock Act of 1873, in addition to dealing with the Post Office, added books and pamphlets to the list of obscene material that was to be banned. Local customs inspectors – or sometimes their superiors in Washington – had to read potentially obscene books to decide whether to ban them.
“At least inspecting this is less boring than inspecting other types of goods.”
The Comstock law passed despite some grumbling that “I do not know whether it can be left to employees of a custom house to determine with safety what kind of literature or what sort of matter is to be admitted.” This Congressman finally decided to support the bill once he concluded that the decision on whether a work was obscene would be left to the courts, not customs officials.
In practice, judicial review was limited and rarely used, and the final decision on what could be imported was made by Customs officials.
The Smoot-Hawley tariff, as introduced, would have kept the existing Customs ban on obscene books. It looked like a fairly noncontroversial item, continuing the law in force, until Republican Senator Bronson Cutting of New Mexico piped up. Cutting was an arty type of Republican, indignant when he learned that a friend of his hadn’t been able to import D. H. Lawrence’s novel about adultery, Lady Chatterley’s Lover. Lawrence was actually in favor of censoring pornography, he simply didn’t think he (Lawrence) was a pornographer. He was an artist, not the same thing. Cutting agreed.
Senator Cutting [insert pun about “Cutting remarks”] proposed to take away Customs’ power to ban books on obscenity grounds. Such censorship, if it was to exist, should be exercised by the post office and by state and local governments, plus the church and the family. What qualifications did Customs people have in this area?
The Senate, in Committee of the Whole, actually accepted Cutting’s amendment. This took Smoot by surprise, and it shocked him to his core.
Smoot biograper Milton Merrill says that Smoot’s objection to dirty books was not due to some kind of repressed prurience or similar factor. Dirty books were dirty and gross, and it made no difference whether the author was some kind of artist or a good writer. There was also the fact that, as a Mormon whose moral qualifications to sit in the Senate had been attacked, Smoot was extra alert to any opportunity to rebut suspicions of dirty-mindedness.
The humorless Smoot decided to demonstrate the dangers of allowing a flood of porn to enter the country and corrupt the people, especially the youth. From the Customs officials, Smoot got copies of some of the worst porn he could find to show his fellow-Senators, many of whom perhaps were pruriently interested in this legislative documentation.
Smoot was genuinely outraged. The Senator known for his calm and detailed analyses of economic legislation spoke at the top of his voice, denouncing smutty writers like Lawrence as black-hearted villains.
When the Senate, as a Committee of the Whole, reported the bill back to itself, Smoot had a chance to challenge the obscenity provision. He wanted to reinstate the ban on importing obscene books. To be fair, this ban dated back to 1873, and Smoot hadn’t anticipated that his beloved tariff measure would be the vehicle his colleagues chose to make what he deemed a pro-smut gesture. Couldn’t Congress just keep the obscene-books ban which had been in place for over half a century, and go back to the important business of protecting legitimate American industries from unfair foreign competition?
So the poet Ogden Nash was being unjust when, in a much-cited poem, he sarcastically praised Smoot as if the Senator was inventing a new book-banning law:
Senator Smoot ( Republican, Ut. )
Is planning a ban on smut.
Oh root-ti-toot for Smoot of Ut.
And his reverent occiput.
With his outbursts of indignation, Smoot helped turn the Senate back to supporting a customs ban on dirty books. But as an experienced legislator, Smoot knew that his colleagues seemed to believe that Customs was going too far and hurting the importation of genuine, non-obscene literature. To conciliate this skepticism about Customs’ literary capacities, Smoot decided to yield somewhat and allow some reform.
For one thing, Smoot would accept an amendment by which the Treasury Secretary (as boss of the Customs Service) could allow “so-called” classics, even dirty ones, into the country on a non-commercial basis. Smoot also accepted a plan endorsed by, among others, future Supreme Court Justice Hugo Black – former Klansman and currently known as the saner of Alabama’s two Senators (this guy was the other). The Black plan would provide that the final decision on whether an imported book was obscene would be made by a federal court, in a jury trial. That ought to meet the objection that random bureaucrats were making literary decisions – the book would get a full due-process trial.
“Hey, they mutilated a copy of the Marquis de Sade’s classic Justine just so they could smuggle cigarettes!”
The Smoot-Hawley Tariff passed with the amendments somewhat softening the Customs ban on obscene books. The first true tests case involved Ulysses.
No wonder they wanted to ban Ulysses – he’s stark naked!
Customs believed that James’ Joyce’s now-classic work was obscene, but after the Smoot-Hawley Tariff, the publisher, Random House, insisted on taking the case to trial. Waiving a jury, Random House had the issue decided by federal district Judge James Woolsey. Both Woolsey and the literature-friendly Second Circuit appeals court said the book was not obscene and could be freely imported (at least as far as the Customs laws were concerned). Woolsey’s opinion is probably more famous than the more authoritative Second Circuit opinion because Woolsey had a gift for words and Random House put his opinion at the beginning of Ulysses.
The Ulysses case was historic because the influential Second Circuit, followed by other courts, rejected an old English case known as Regina v. Hicklin. In that case, an opinion by Chief Justice Cockburn said that a work could be condemned as obscene based only on isolated passages, based on the assumption that susceptible people might be harmed by these passages without regard to the surrounding material.
(Hicklin wasn’t the alleged pornographer, he was a lower-court judge who had tried to legalize the alleged pornography; the pamphlet in question was issued in the name of the Protestant Electoral Union.)
The Ulysses decision said that in deciding whether a book is obscene it must be looked at as a whole. Just because there were, say, sex scenes in a book didn’t automatically make it illegal – the entire book had to be dirty, not just a few bits and pieces.
Because the Ulysses case was so historic, and was decided under the supposedly literary-friendly provisions of the Smoot-Hawley Act, some people got the impression that winning court hearings for books Customs wanted to ban represented an advance for literature, making censorship tougher. In reality, importers rarely challenged Customs decisions in court, since legal challenges are quite expensive and it would simply be easier, if possible, to cut out the offensive bits designated by Customs.
Customs liberalized its treatment of books (and movies), not because of Smoot-Hawley, but because of a gentleman named Huntington Cairns. A lawyer, litterateur, and later counsel for the National Gallery of Art, Cairns informally advised the Customs service on disputed works, generally erring in favor of letting the works into the country, at a time when the Post Office and many local censors were stricter against alleged porn.
So Smoot’s “concession” wasn’t what protected literature against Customs overreach – maybe Smoot wasn’t as dumb as they thought.
Works Consulted
Paul S. Boyer, Purity in Print: The Vice-Society Movement and Book Censorship in America. New York: Charles Scribner’s Sons, 1968.
Milton R. Merrill, Reed Smoot: Apostle in Politics. Logan, Utah: Utah State University Press, 1990.
James C. N. Paul and Murray L. Schwartz, Federal Censorship: Obscenity in the Mail. New York: The Free Press of Glencoe, 1961.
A President elected based on a grassroots sentiment completely misunderstood by New England elites. A faction agitating for war with a hereditary rival. Another faction egging on increased hostilities with a weak and belligerent country, the conflict stemming from a disputed piece of land lost in a revolution. A mass of troops stationed at the southern border. A long-lasting war against a wide-spanning network of stone-age terrorists. Domestic strife based around the treatment of persons of color.
It could be a description of President Trump’s first few months in office, but it also applies to James K. Polk’s presidency. Back then, phrases like “Manifest Destiny” were bandied about, representing the conquering spirit of the American people in the mid-19th century. Agitators were pushing aggressive postures against Great Britain (over the Oregon Territory) and Mexico (over Texas and California) so that the US could claim a great swath of the Western Frontier. Polk was also engaged in a generations’ long battle that he inherited from his predecessors, a smoldering fight against the Indians. Some Indians, like the Seminoles, had resorted to indiscriminate violence against all infidels Americans. People traveling between towns would be snatched off the highway, tortured, and have their brains bashed in. Further, the tinderbox of slavery was awaiting a spark before igniting the Civil War. Interestingly, Polk’s acquisition of California was one of the biggest destabilizing events in the mid-19th Century that made the Civil War inevitable.
I’ve been listening (audiobook) to a biography of General Sherman, and his connection to the politics of this time is fascinating. As a Lieutenant looking to get a taste of the glory of war and a promotion, Sherman’s near-exile to Monterrey, California during the Mexican War was excruciating. However, he was right in the middle of history, being one of the first people to know of gold in California. It’s interesting to see the reaction of Americans to border disputes in territories far away from the states themselves. People seemed to have the same”go get ’em” attitude when it came to 19th century imperialism as when it comes to 21st century nation building.
Ronald Reagan switched from Democrat to Republican in 1962. Hillary Clinton was a member of the College Republicans before becoming a Democrat in 1968. Rick Perry switched from Democrat to Republican in 1989. Elizabeth Warren switched from Republican to Democrat in 1996. These examples illustrate the great importance of the political parties as a trustworthy sign of what a politician really believes.
But political parties serve an even more important role: they tell us who we should reflexively hate. Without political parties, voters would be forced to evaluate politicians based on the results of their policies instead mindlessly rooting for their team. Chaos would inevitably ensue.
And don’t get me started about 3rd parties. You shouldn’t vote for them because they won’t get enough votes. Circular logic is fun because circular logic is fun!
This country has a two-party system. It says so right in the Constitution. I think it’s between the part that talks about the separation of church and state and the part that says only people in a well-regulated militia are allowed to have guns.
Here’s how it works: if you vote and your candidate wins, your vote is an implicit agreement to whatever happens next. And if you vote for someone else and they lose, you agree to bound by the decision of the majority by participating in the election. And if you don’t vote, you have no right to complain because the only legitimate form of protest is to vote. So you agree to whatever politicians do whether you vote or not. This is called “consent of the governed.” It’s one of those phrases like “living dead” or “quiet riot” that sounds funny if you think about it too much.
My advice is to only vote for flip-floppers. It’s the safest bet because statistically speaking, you’ll get what you want about half the time.
Grammar Nazis are like shamans – always hated and outcast until they are desperately needed.
There have been several recent stories about the Oakhurst Dairy case, which was decided by a debate over the so-called ‘Oxford comma,’ which English professors are supposedly charmingly obsessed with, but which is too arcane for normal citizens to understand.
As a former college English teacher who moved into a profession in which I frequently deal with the often-incomprehensible intricacies of labor law (i.e. construction management), I am here to disabuse you of the notion that it is the grammar rules, and not labor law itself, that suffer from being over-arcane.
The case involves rules governing which labor classifications do and don’t get overtime pay, and hinges on whether, in the text of the law detailing overtime exemptions for various dairy workers, the phrase “for shipment or distribution” modifies the word “packing” or whether “packing for shipment” and “distribution” are two different items in a list of trades exempted from overtime rules. If the former, those who distribute the dairy’s products are not exempt from overtime rules, only those who pack are. If the latter then those who drive the trucks are exempt, too. The union, unsurprisingly, argued the latter and prevailed upon appeal (meaning overtime pay for distribution, but not for packing).
Exemptions of this kind are common in fields where work comes in surges rather than being predictable day-by-day.
The most-publicized rationale behind the decision was that since there is a comma before “packing,” “packing” could be the final item in the series, modified by the rest of the clause, since that’s how you would interpret the sentence if this comma were an ‘Oxford comma,’ i.e. a ‘serial comma’ preceding the final item in a list, so that the last item is “packing for shipment or distribution.”
Presumably, there’s follow-up logic that says “and since there’s controversy over the ‘Oxford comma’ the rule is ambiguous and per state law ambiguities are to resolve in the employee’s favor.”
But while the different varieties of comma (such as serial vs. parenthetical, the two that are relevant here) have superficial resemblance (i.e. they use the same mark on the page), their functions are entirely different, and they should not be confused, any more than the ‘th’ in “fathom” should be confused with the ‘th’ in “Chatham” (pronounced “Chat-ham”).
This may seem a pedestrian observation, but it is just such a confusion that underlies the wrong decision in this case.
The recent article by A. Barton Hinkle, for example, which I link above, eagerly utilizes amusing examples of misused parenthetical commas to show how ambiguity in commas can seriously affect meaning (if one doesn’t know the context and/or is a little dim), such as ““When @LouiseMensch reported on the FISA tap, she included details that implicated Putin’s own daughters, Carter Page and Paul Manafort.”
If we pretend that the comma after ‘daughters’ is a parenthetical comma, rather than a serial comma, it sounds like the sentence is saying that Carter Page and Paul Manafort are Putin’s daughters.
While these examples can be fun, they don’t have anything to do with serial commas, which don’t impact meaning. The “Putin’s daughters” example is one in which a serial comma could be read as a parenthetical comma – if one doesn’t know anything at all about the context of the sentence. It is the structure of the sentence, not the lack of the comma, that creates that ambiguity.
The ‘Oxford comma,’ as it’s known to stuffy people who wear tweed, is specifically a superfluous serial comma added after the penultimate member of a series: “the flag is red, white, and blue.” The comma after ‘white’ is the ‘Oxford comma’ and is now considered by many to be over-fussy as it pointlessly doubles the function of the conjunction. “The flag is red, white and blue” is in no way less clear, and while style guides of the 1950s encouraged comma usage (“when in doubt, do”), style guides of the 1990s did the opposite (“when in doubt, don’t”).
Regardless of how you feel about the ‘Oxford comma’ and whether it is acceptable to omit it, the reason the jury in the Oakhurst Dairy case decided wrongly is that the real grammatical requirement is that no matter how long or complex the series is the final member of the series grammatically requires a conjunction. “The flag is red, white, blue” is ungrammatical, as is the union’s interpretation of the clause that is at issue in the lawsuit.
As noted above, we are being asked to take the phrase ‘for shipment and distribution’ as a modifier of ‘packing.’ That means we can remove that element of the sentence and the sentence itself will remain grammatical. Here is the sentence if we remove that modifier:
“The canning, processing, preserving, freezing, drying, marketing, storing, packing of agricultural produce. . .”
vs. the not-ungrammatical
“The canning, processing, preserving, freezing, drying, marketing, storing, packing ordistribution of agricultural produce. . . .”
While ambiguities are to be construed in favor of the employee, I see no ambiguity here. If there were an ‘and’ or ‘or’ between ‘storing’ and ‘packing’ then it would not be ambiguous whether you use the ‘Oxford comma’ or not: “The canning, processing, preserving, freezing, drying, marketing, storing, or packing for shipment or distribution of agricultural produce. . . .” This version also lacks the ‘Oxford comma,’ yet somehow manages to be perfectly unambiguous in the packing being “for shipment or distribution.”
Because it’s about the conjunction, not the comma. The ‘Oxford comma,’ like Communism, is a red herring.
But as with so many things, the whole stupid debate could be avoided by simply getting the government out of the equation. My understanding is that Maine has a style guide for laws explicitly stating that they don’t use the ‘Oxford comma,’ yet this standard isn’t applied consistently, so the courts couldn’t use it. Legislators are not motivated by pragmatism (or competence), their decisions don’t have to pass the workability test, and they will not be held accountable for their failures. In politics, it is about the gesture, not the result. A law was made mandating overtime pay universally, and then myriad exceptions had to be carved out of it because, as the Devil once said, “one law for the Lion and the Ox is Tyranny.”
Even in a collective bargaining situation, had the Dairy simply been able to negotiate directly with the union without a body of poorly written but ‘well-intended’ legislation to try to interpret, hundreds of thousands if not millions in legal fees could have been saved, and perhaps even distributed to the workers by way of resolving the negotiations.
In fact, absent the labor laws the points in dispute would likely have been directly and explicitly negotiated, rather than silently passed over because both parties thought they understood a pre-existing regulation and so never discussed it.
But I wouldn’t hold my breath waiting for the lawyers and legislators to decide that repealing these regulations would be a ‘pragmatic’ development.
Now that you’ve read Part One and Part Two of my discussion of the career of Raoul Berger, it’s time for the part with Nixon in it.
In the late 1960s, impeachment (accusation by the House of Representatives, followed by trial in the Senate) was thought of primarily as a means of getting rid of crooked federal judges, who could not otherwise be removed from office. Still, there had been some dramatic impeachment trials in the distant past, and there were many legal controversies left over from those trials.
One issue was the definition of “high Crimes and Misdemeanors,” the constitutional description of the grounds for impeaching members of the U. S. government. Some advocated a narrow definition, by which only the commission of an indictable crime would justify impeachment.
Professor Raoul Berger, after diving into the source material, decided that the Founders meant the term to mean something besides indictable misconduct. Any serious misconduct or official oppression by an officeholder, Berger argued, was impeachable.
Berger’s discussion went through a good many points, but let’s look at one case Berger studied: The impeachment trial of Supreme Court Justice Samuel Chase in 1805.
Samuel Chase
Conventional historiography portrayed the U. S. Senate’s acquittal of Justice Chase as a defeat for Thomas Jefferson’s Republican (now Democratic) Party and a victory for judicial independence. Had Jefferson’s Republican backers in Congress managed to remove Chase, ran the standard narrative, then other Federalist judges who stood in the way of Republican policies – people like Chief Justice John Marshall – would have been knocked down like ninepins. Only the Federalist minority in the Senate, backed by a courageous group of Republicans who put principle above party, had saved judicial independence by voting Chase Not Guilty. Such was the conventional wisdom.
Berger had a different take. He believed that the Senate should have convicted Chase and removed him from office for numerous acts of judicial oppression. None of these acts were indictable, but they were the type of official misconduct which was impeachable under the Founders’ principles, principles which a partisan minority had violated by letting Chase get away with his behavior.
Chase’s judicial misconduct, as Berger saw it, took place while Chase was presiding at trials of various enemies of the Federalist party (which held office before 1801, becoming a minority party afterward). Berger, just as Congress had in 1805, gave particular attention to the 1800 treason trial of John Fries, who is shown here:
Seriously, though, Fries (proper pronunciation: “freeze”), an auctioneer in eastern Pennsylvania, was one of the leaders of groups of discontented German-American farmers who resisted federal taxes and tax assessments on their houses and land. The 1798 house tax was graduated or, in modern terms, “progressive,” so as to impose higher burdens on wealthy homeowners. But those paranoid Germans – despite their generally moderate income – thought that higher taxes could be in the offing unless the trend was nipped in the bud. Plus, the new taxes were too reminiscent of the oppressive taxes their ancestors had faced in Germany (an early example of Godwin’s Law). Fries, a Revolutionary War veteran, rallied his supporters to drive out some of the tax assessors from his town. Then he and his forces went to demand bail for fellow-resisters who had been arrested nearby, and to insist that these defendants be tried by a local jury rather than in distant Philadelphia (about fifty miles away). When federal officials didn’t meet these demands, Fries freed the prisoners.
Auction Hero? John Fries, auctioneer and tax resister, detained some tax assessors at Enoch Roberts’s Tavern (now the Red Lion Inn) in Quakertown, PA. Fries attempted (somewhat successfully) to stop his drunken followers from beating up the tax men. Justice Chase planned to have Fries hanged in front of the tavern, but a Presidential pardon prevented that from happening.
The federal government put Fries and others on trial for treason – the trials were in Philadelphia. The first prosecution ended in a mistrial, and Chase presided at Fries’ second trial. Before he could hear from the defendant’s lawyers, Chase issued a ruling that Fries’ actions, if proven, constituted treason, and that the defense would not be allowed to argue otherwise to the jury. Fries’ lawyers withdrew from this farce of a trial, despite Chase’s efforts to walk back his behavior. Fries managed his own defense as best he could. Fries was convicted and sentenced to hang, only to be saved in the last minute when President John Adams pardoned Fries and other “rebels.” (This pardon was the final provocation which led Alexander Hamilton – who wanted Fries hanged – to break with Adams.)
Alexander Hamilton
(Incidentally, for what it’s worth, here is Murray Rothbard praising an earlier tax revolt, the Whiskey Rebellion in western Pennsylvania. Interestingly enough, Fries had served in the militia to suppress that revolt.)
Chase had engaged in oppressive behavior toward defendants in other trials, too, including the seditious libel trial of James Callender. Chase pressed, with more than judicial zeal, for Callender’s conviction for the “crime” of publishing a critical pamphlet about President Adams. (Judging from Callender’s “biography” on the Web page of the Federal Judicial Center – an agency of the federal judiciary – it seems that there may still be some hard feelings toward Callender in official circles.)
Basically, Berger portrayed Chase as a classic case of an impeachable official. Presumably, Berger hoped that the next time someone in the federal government committed comparably grave misconduct, they wouldn’t get away with it as Chase had.
By around 1971, Berger had completed work on his book, Impeachment: The Constitutional Problems. His publisher, Harvard University Press, didn’t exactly rush the book into print, delaying the publication of this boring treatise until 1973. By that time Berger had resumed his research on executive privilege in preparation for a book on that subject, Executive Privilege: A Constitutional Myth, which came out in 1974.
In the publishing industry, this is known as “good timing.”
Impeachment hit the shelves as President Richard Nixon was in the middle of the Watergate scandal, and the public eagerly bought up copies of this suddenly very relevant book. When Executive Privilege came out, that book was popular too, due to Nixon’s claim that he could withhold information from Congress and the courts. As the title suggests, Berger thought executive privilege was a myth cooked up by modern Presidents in defiance of the Founders’ intentions.
After his impeachment book came out, Berger became a popular Congressional witness for Nixon’s opponents, testifying about the legal standards for impeachment. He also testified about executive privilege, pressing Congress to have the courage to demand the necessary Watergate information from the Nixon administration, in the face of Nixon’s resistance.
The executive branch under Nixon (see alt text for punch line)
Berger was a celebrity with a message which was welcome to the media and many parts of the public: Congress had the power to investigate Nixon for abuse of power, and Nixon should be impeached. Berger appeared on a Bill Moyers special on PBS, and on Pacifica Radio.
And there was a flattering profile in the New York Times, which commenced with some really classy ethnic humor: “Raoul Berger thinks of himself as a Dutch housemaid sweeping out dark corners of the Constitution….Every few months he lays his broom aside long enough to testify before a Congressional committee, transforming himself from Dutch housemaid into Dutch uncle.”
I looked for an image of a Dutch maid, but all I found was this painting of a French kitchen maid peeling turnips
Anyway, Berger got a lot of favorable attention from the media and Congressional foes of Nixon, emboldening them in their determination to remove him from office.
(One of Berger’s stances might have been helpful to Nixon – Berger said that the U. S. Supreme Court could review impeachment cases, so that even if the Senate had convicted Nixon, Berger’s view was that Nixon could have taken the matter up to the Supreme Court. The Supreme Court itself would reject this position in 1993, in the case of another Nixon – Walter Nixon, a district judge who was impeached and removed from office. The Senate’s decision was final, said the Court.)
The end came when the U. S. Supreme Court – under Chief Justice Warren Burger, who had been appointed by Nixon…
Warren Burger
…ruled that Nixon’s claim of executive privilege would have to yield to the need of the courts for information. Shortly after that, Nixon resigned under threat of impeachment.
But as Professor Berger noted in the UCLA Law Review, the Court had simply assumed that the President possessed some level of executive privilege which might, in other circumstances (not involving Watergate) justify withholding information from the courts or Congress. Professor Berger complained that the Supreme Court had not even considered his scholarship refuting the idea of executive privilege.
But for the moment, thanks to Watergate and Nixon’s disgrace, broad constitutional claims of executive power and executive privilege were for a time discredited. As Baked Penguin has reminded me, this was the era of a strengthened Freedom of Information Act, allowing individual citizens to go to court to demand information in the custody of the executive branch. Judges, not executive officials, make the final decision about whether citizens get to see the material – though there are numerous grounds the executive can give in court for not releasing the documents (privacy, national security, etc.). (When someone does a full-blown biography of Berger, including looking at his papers at Harvard, his role in FOIA and other developments of the time can be more fully described.)
The seeds of a backlash were already being planted. Just as progressives, faced with Republican Presidents and Democratic Congresses, had become more alarmed about executive power than they had been under Democratic Presidents, so too many conservatives were reversing their former support of Congressional power and coming to see a strong Presidency as a counterbalance to a liberal Congress. In this context, conservative Yale law professor Ralph K. Winter, Jr., wrote a scathing review of Berger’s Executive Privilege. To Winter, Berger was an over-hyped academic whose views on executive privilege were not worthy of serious consideration.
Perhaps Winter grouped Berger among the leftists who (Winter believed) were trying to hamper the Presidency, now that Congressional power had become a progressive cause. To Winter, left-wingers were bitching about the growth of Presidential power because they were looking for scapegoats for the failures of the Great Society.
(Winter was later appointed to the Second Circuit court by Ronald Reagan, and in the 2000’s he served on the Foreign Intelligence Surveillance Court of Review – the FISA appeals court. In the latter position, Winter showed his sympathies with broad executive-branch surveillance. Perhaps privacy is something the President needs but not something the President has to respect when snooping on others?)
Winter’s criticism of Berger was the exception. As Nixon left office in disgrace, most of the intelligentsia and the media praised Berger for his meticulous legal scholarship and his willingness to speak truth to power.
“A toast – to a stout-hearted champion of the Constitution!”
It was time for Berger to turn to another research project. This time, he decided, he would tackle the Fourteenth Amendment.
Works Consulted
Raoul Berger, , Executive Privilege: A Constitutional Myth. Cambridge, MA: Harvard University Press, 1974.
___________, Impeachment: The Constitutional Problems. Cambridge, MA: Harvard University Press, 1973.
___________, “The Incarnation of Executive Privilege,” 22 UCLA L.R. 1 (October 1974), pp. 4-29.
Gary L. McDowell, “The True Constitutionalist. Raoul Berger, 1901-2000: His Life and His Contribution to American Law and Politics.” The Times Literary Supplement, no. 5122 (May 25, 2001): 15.
Paul Douglas Newman, Fries’s Rebellion: The Enduring Struggle for the American Revolution. Philadelphia: University of Pennsylvania Press, 2004.
Johnathan O’Neill, Originalism in American Law and Politics: A Constitutional History. Baltimore: The Johns Hopkins University Press, 2005.
Israel Shenker, “Expert on the Constitution Studies Executive Privilege,” New York Times, July 26, 1973, online at http://www.nytimes.com/1973/07/26/archives/expert-on-the-constitutionstudiesexecutive-privilege-became.html
“Raoul Berger, Whose Constitution Writings Helped To Sink Nixon,” Boston Globe, reprinted in Chicago Tribune, September 28, 2000, http://articles.chicagotribune.com/2000-09-28/news/0009280256_1_executive-privilege-writings-constitutional
“Watergate, Politics and the Legal Process,” American Enterprise Institute Round Table, March 13-14, 1974.
My brain is going in a thousand different directions today, so I’m gonna roll with it. I’m just gonna write a few sentences for each thought in stream of consciousness form and see whether it gets me booed off the stage.
It’s amazing how much money touches every sore spot in a relationship. My wife and I are going through Dave Ramsey’s FPU to “tune up” our finances now that I’m making a paycheck again, and it’s painfully obvious how different our respective priorities are. I’m very risk averse and want to be completely out of debt within 5 years. She’d rather have nice things and not think about money. There was definitely some sleeping on the couch happening this week.
Am I the only one who couldn’t care less about this Russian bullshit? It didn’t pass the smell test in November. It didn’t pass the smell test in January. Now it smells like an Obama fart as we are starting to get wiretapping information.
I’m not at all surprised that the Whatever 7 from Wikileaks was another big nothing. We learned more about how utterly out of control our intelligence agencies are, but none of it was a “shocking revelation.” Wikileaks needs somebody to better market their info dumps because they’re all hat and no cattle at this point.
I think the NFL is suffering from the same problems as the NBA, and their ratings will continue to decline in the next few years. The players are less and less interesting to the majority of the population, prices for tickets and apparel are out of the reach of many, and the media spends more time on who beat up their girlfriend than on actual football anymore.
Basic Economics by Thomas Sowell is a great read! I think I’d recommend Economics in One Lesson by Henry Hazlitt first, simply because it’s shorter and less repetitive. Either book is a great primer on why everything politicians say about economics is crap.
Complete detox from the MSM has been nice. I’ll watch the occasional local news segment or click the random link to a MSM outlet, but generally I just avoid it. It gives a level of perspective to the daily Olympic pants shitting that happens in our culture. Also, nothing pisses a prog off more than when they’re hyperventilating with “Did you see that Trump did that????!?!?!?”, replying with “nope, must’ve missed it. Doesn’t sound very important.”
After watching a few Dateline episodes with Mrs. trshmnstr (what is with women’s obsession with that show??), I’ve come to the conclusion that if the random guy you met at a party texts you 2 hours later, he’s already in your garage getting ready to rape you, strangle you, and dump your body three counties over.
Final thought: I had always thought of the Civil War as being fought mostly in open fields. My visits to the Manassas Battlefield have disavowed me of that notion. I’m sure the artillery were set up in large fields, but it looks like much of the battle must have taken place in densely forested areas.
I’m a single guy who’s finding the search for a girlfriend frustrating, because one of my absolute requirements for any woman I date that she be at least libertarian-leaning. I have friends of different political persuasions, of course, because politics aren’t the crux of our friendship, so we do [shared interest activity] then part ways. But I don’t think I could stand coming home to someone who supposed to be a source of solace and moral support yet I think is at best naïve and at worst stupid or immoral or both. How could I connect with someone who doesn’t even understand my frustrations with the world outside the walls of our home? How could I respect as an equal someone who thinks such a world is moral or just?
So, for those of you who are dating/married to non-libertarians, how do you make peace with that? Am I doing myself a disservice by maintaining such a strict requirement?
I don’t think there’s anything wrong with waiting until you find the right person. Previously, I was married to someone who might have considered himself a libertarian, but he definitely fell into a standard Republican square, in my estimation. Things didn’t work out–for plenty of reasons, not just because we couldn’t see eye-to-eye ideologically. One thing I’ve found about libertarians and libertarianism is that it isn’t just a political philosophy; for me, it’s more of a life philosophy. I would not be able to push my ideals aside for my romantic partner and I have a whole failed relationship to prove it. As you said above, how could I come home to someone who has an entirely different approach/reaction to the world than I do? I couldn’t. Mr. Riven and I met on OKCupid, where it was easy to see on each other’s profiles if there was going to be any compatibility or not. Luckily we were both painfully honest, and meeting in person only reinforced that compatibility further. The rest, they say, is history. Hold out for that unicorn.
Banjos:
A thrice divorced hopelessly romantic former coworker of mine once told me a story. He was almost about to give up on finding “the one” when a friend of his point blank asked him a question. “What do all the women you have been married to/dated over your life have in common?” He thought about it for a second and then said “I met them all in bars.” His friend then said “If you want to catch a different kind of fish, you need to start fishing in different ponds.” My coworker took his friend’s advice to heart, found a different pond, and has been happily married ever since. Shortly after being told that story, I started fishing on Reason and caught myself a sloopy. I know of another couple who are soon to be married who found each other through Reason’s comment section, as well. So my simple advice is this: If you want a libertarian fish, fish in libertarian ponds.
BrettL:
First of all, we know there are no libertarian women out there, Banjos and Riven are taken. But beating our heads against the wall of impossible is obviously attractive to the libertarian leaning. What worked well for me was to find one who didn’t care at all about politics and really didn’t think much about how society should be ordered. And then show her the outrageous things that happen every day that this site and certain others are good at highlighting. Mrs. L still doesn’t care about politics, per se, but she sure does say a lot of things that sound like they came off this message board in response to the petty statism we encounter day-to-day. However, Mrs. L is awesome, sane, and puts up with me, so good luck finding your own unicorn.
If you’ve got questions and no answers, feel free to drop us a line at advice@glibertarians.com, and we will do our best to help you.
There are few things in the world more frustrating than talking to average people about healthcare, but surely one of them is talking to fellow libertarians about the problems with our healthcare system. This goes beyond frustration with the typical libertarian infighting. Part of it is that there are so many things terribly wrong with our healthcare system, any libertarian can point to most any aspect of the system and find some legitimate confirmation that their favorite peeve is, in fact, a problem. However, even though there are numerous contributing factors to our healthcare woes, there is one evil to rule them all—but very few libertarians seem to understand what that is. The purpose of this analysis is to identify the ultimate cause of our problems, show why most libertarians’ favorite solution doesn’t really address it, and show why the Ryan plan is a hell of a lot better than most libertarians seem to appreciate.
What the Chart Does and Doesn’t Say
So, here is the ultimate source of the problem—Medicare and Medicaid only pay for a fraction of the cost of care. Providers are left to gouge private insurers and out of pocket patients for all the money they lose treating Medicare and Medicaid patients. According to the chart, hospitals are charging private pay patients about 150% of cost.
There are two major implications of this that people don’t generally appreciate. More charts would probably only make things more confusing, just understand two things: 1) Medicare and Medicaid patients are more expensive than private pay patients, and 2) the unfunded costs of Medicaid aren’t evenly distributed across the country.
What the hell does that mean?
Medicare and Medicaid patients tend to cost more than private pay patients. People on Medicare are older and need more in the way of expensive treatments—heart surgeries, terminal illnesses, etc. Poor people on Medicaid, likewise, tend to have more babies, more health problems, and may generally be more expensive to treat than private pay patients.
So, don’t be confused by the averages in the chart—Medicare and Medicaid are covering 85% of the costs (on average), but they’re also covering more expensive costs. In other words, if the average private pay patient goes to the hospital once a year for an MRI scan, when the insurer pays 150% of that relatively small cost, they’re reimbursing that provider for the tens of thousands of dollars the provider lost performing heart surgery on someone with Medicaid or Medicare.
The unfunded costs of Medicaid are not evenly distributed, and that points to another problem caused by Medicare and Medicaid only reimbursing providers for a fraction of the cost of care. Medicaid is for poor people, and poor people aren’t evenly distributed in your city, much less your state.
Hospitals are like retailers in that they serve a local community and that community has a particular income level. If the hospital is in an area with a disproportionate percentage of poor people, then there are few private pay patients in that community on insurance to make up for the shortfall. That means where the chart says that the average private pay patient is paying 150% of cost vs. Medicare/Medicaid’s 85%, it assumes that the patient mix is the national average.
In other words, if the hospital is an area where the local population only has 10% private pay patients and 90% Medicare and Medicaid patients, then that 150% percent of cost figure for private pay patients is going to be much, much higher–and those kinds of patient mix numbers are not uncommon in urban poor areas.
Sensitivity Analysis
The part where you all get mad at me!
Usually, a sensitivity analysis would show how taking the Medicare and Medicaid reimbursement rate up higher would impact the local cost of care. This sensitivity analysis is more about how the system would improve relative to various solutions. How would doing x, y, or z improve the situation?
For instance, wouldn’t the system be better if individuals and insurers formed the market instead of getting insurance through employers? I suppose it would be better, but that solution doesn’t address the real cause of the problem. Insurers would still be competing to sell you a policy that covers 150% of the cost of care (national average).
What about removing the “Cadillac” tax, getting the AMA to stop limiting class sizes of nurses and doctors, making pricing transparent, or making policies portable across state lines? Without getting into too much detail, transparency and portability are extremely complicated because of Medicaid, and even if those things were possible—what would any of them do about the fact that insurers are still paying 150% of cost (national average)?
Solutions
I suppose a lucid progressive might suggest taxing productive workers to take Medicaid’s and Medicare’s reimbursement rate up to 100%, but 1) raising people’s taxes so they can afford to buy insurance is just playing an especially stupid shell game with costs, 2) Medicare and Medicaid spending already make up almost a third of the federal budget, 3) the Medicare rolls are already set to increase as baby boomers continue to retire, and 4) that might be an extra $300 billion a year in real payouts—something like the size of our national interest payment.
The ultimate solution is to cut these programs.
Medicare is more politically sensitive, and Medicaid is especially responsible for driving up the cost of private insurance in economically distressed areas. Certainly, rolling back the ObamaCare Medicaid expansion is a necessary step before we can cut back the rest of Medicaid—and did you know there is a plan being considered in Congress, right now, that gets rid of the ACA Medicaid expansion after 2019?
Whatever else the Ryan plan isn’t, it’s one of those rare situations in which the actual cause of the problem is actually being addressed.
Anarchy is quite the opposite of Communism when it comes to political structure and social order. However, when it comes to the relation of these ideas to their respective political segments, Anarchy is the Communism of the Right (or if that’s too harsh for your sensibilities, it’s the Communism of the Libertarian movement). How so? There are three major similarities: 1) The likelihood of long-term, stable implementation, 2) the resultant social order, and 3) the big lie that must be believed in order to accept the philosophy.
_-_Custom_House.jpg "This was a year after Chester Arthur was fired as New York's Collector of Customs. The scandal was so great that Arthur ended up as President. He had to pull a sword out of a stone, or was that a different Arthur?")
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Polk’s presidency. Back then, phrases like “Manifest Destiny” were bandied about, representing the conquering spirit of the American people in the mid-19th century. Agitators were pushing aggressive postures against Great Britain (over the Oregon Territory) and Mexico (over Texas and California) so that the US could claim a great swath of the Western Frontier. Polk was also engaged in a generations’ long battle that he inherited from his predecessors, a smoldering fight against the Indians. Some Indians, like the Seminoles, had resorted to indiscriminate violence against all 
But political parties serve an even more important role: they tell us who we should reflexively hate. Without political parties, voters would be forced to evaluate politicians based on the results of their policies instead mindlessly rooting for their team. Chaos would inevitably ensue.
.jpg "Like an old-fashioned ladies' locker room, there were no subpoenas allowed")
