The Logical and Epistemological Derivation and Progression of Rights

Here's a post I started writing about... two years ago I think? Maybe three? In response to a question about what rights were, and how we know they are rights etc... but I never finished it. The same question came up today, so I figured I'd finish the post. 

... It's still not QUITE finished... I need to do a bit more of an edit... but it's MOSTLY finished. 

By the by... if you think something is circular, or a tautology, you're reading it wrong. There are no tautologies here, there are only derivations from first principle, with reference to falsifiability, and non-contradiction; presented as logical and consequential proofs.

Meaning that all derivations FROM first principles in the progression can be derived back TO first principles, without contradiction or falsification... and that many but not all of them have, in order to illustrate this. 

As sentient beings, of sound mind, able to make our own choices and direct our own efforts; and to accept the requirements, obligations and consequences thereof; we have fundamental and inherent rights, which pre-exist and presuppose any society, state, collective, or other entity.

Rights exist because of self ownership, not because of society, or the state, or collective agreement or consent.We own ourselves, in the entire... rights, benefits, obligations and consequences.

We are not the property of others, or of society; and society (or the state, or any other collective or individual) is not the grantor of rights... though if legitimate, society, or the state, should be a guarantor of rights.

This is generally colloquially referred to as the propertarian principle of individual rights, or the principal of self ownership.

To my knowledge, it is the only logical derivation and progression of individual rights, as and from fundamental first principle, which does not require outside appeal to authority (i.e. faith, God, society, the state, the monarch etc... though conveniently, it also does not contradict most concepts of faith in God either)... though there may be others I am not familiar with.

This is a nearly universally recognized (if not necessarily universally accepted) principle, by those who actually study such principles (philosophy and philosophers), and the nature of principles, knowledge, and truth (epistemology... a field of philosophy which asks "how does one know anything at all, and within such knowledge, how does one know what is true and what is not).

It is generally accepted as the foundational first principle of the enlightenment... and critically it IS, clearly and explicity, the fundamental principle of the constitution of the United States... and of the nation defined by it.

Rights are not granted or provided by the constitution, or the state, or society... our rights are fundamental, inherent, and pre-existing... they are recognized, and protected by the constitution, by the state organized and formed by it, and... hopefully... by the society living with that state.

First, to get it out of the way right up front... lets talk about God for a minute:

1. Some believe there is no such thing as property, nor can there be... only stewardship
2. Some believe that we are Gods property

There can be conceptions of rights without property, including without self ownership, or even without individuals, as we think of them... but they are entirely different from conceptions of rights where there can be and is property... Generally granted by "tradition", or "honor" or "god" or "gods" etc... They are not derivable from any logical first principle, but instead require appeal to authority (even if that authority is "honor" or "tradition").

In most Christian and Jewish theological concepts which include people being God's property, this is morally and ethically indistinguishable from self ownership in the context of the propertarian principle; except internally, to your own moral judgement and conscience, of your stewardship of Gods property (as delegated to you, the individual...though certain Christians theorize and promulgate more explicitly collective stewardship as well).

In Islam, you are owned by God, and are in total submission to God... That is the literal meaning of Islam. You are owned by, and submit to the will of, God, in all things, at all times. Anything you or anyone else has, is Gods property, you only have temporary posession, use, and stewardship of it... including yourself. You have no rights, nor does anyone else... only privileges granted by God, as God wills it.

This piece is not about the epistemology of faith however, it is about the epistemology of rights.

So next, lets get the other common concepts of "rights"... which by the individual conception of rights are not truly rights at all... out of the way.

Some believe that there are superior beings, who have rights inherently (or granted by God, or society, or position etc..); and inferior beings, who do not, or whose rights are inferior to others (unless granted superior rights by those who posess them), and who can be the property of another, or can be subject to another. This is the fundamental principle of nobility or monarchy, and of certain types of oligarchy, and other explicitly hierarchical societies.

Some believe that people... or at least our bodies, and the fruits and products of them, and their efforts (wealth, profit, property etc...) are the property of "society" or some other collective entity or construct. If you believe that individuals are societies property... then you don't believe in rights at all... though you may call them rights, they are not: They are grants of privilege, immunity, entitlement, license, or franchise. They can be given, taken, and modified, as society decides. This is the fundamental principal of most collectivist societies.

It is also the fundamental presumption most people seem to have, in most societies around the world today... including, sadly, most people in America. They THINK they believe in rights, and in individuals... but they believe that rights are grants of society, or the state, or the constitution; and can be granted, modified, or revoked, as the needs or preferences of society require them to be.

They THINK they believe they are individuals, and own themselves... but they believe that society decides on rights... and if society decides, then you don't actually own yourself, society owns you.

What about right and wrong?

In either of these alternate conceptions; as the superior individuals, or society as a whole, are the arbiter of rights, then there can be no standard of right or wrong, except as determined by those superior individuals, or by common consent; and when society changes its mind, then what right, and what is wrong, also change.

There are no right and wrong... only allowed or not... Which, sadly, is what all too many believe.

If there ARE individual rights, beginning with property rights, then at least some things are inherently and objectively wrong... with or without society, even if society says they otherwise... Specifically those things which violate the rights of others, by force or fraud.

Oh and, if one knowingly does this wrong, by choice, then one willingly consents to their rights being abrogated as a consequence... We respect each others rights, so that others respect ours, and if they violate ours, we don't have to respect theirs... though we still should, and we shouldn't disregard their rights to any degree greater than required to compensate us for the violation of our rights, or to prevent further violation or abrogation of others rights.

THAT is the ACTUAL social contract by the way...

...Not some BS about society and altruism etc... etc... etc...

A contract, is valid consideration, offered for valid consideration in return; voluntarily accepted, with valid exchange and acceptance of said consideration, according to specified terms.

This equal offer of consideration of rights, fulfills all requirements of a contract; both as individuals, and collectively... as all so called "collective rights" are not... they either do not exist, or they are rights delegated to the collective by others.

... Remember... I said this was a full logical derivation and progression... 
Might makes right?

Three other important things to get out of the way...

1. Just because someone, or some society, or some state doesn't know about or recognize or accept such rights, doesn't mean they don't exist

2. Just because someone, or some society, or some state, is violating or abrogating such rights, does not mean they do not exist.

3. Just because someone, or some society, or some state, has the power, or has granted themselves the authority, to violate or abrogate such rights, does not mean they do not exist.

To "think" otherwise, is to make the same logical error, as thinking that because people violate the law, there is no law; the same logical error as thinking that because people do wrong, that there is no right or wrong.

This is the difference between licit, and legitimate authority and force. Licit, is that which is allowed by "authority"... be it society, the state, the monarch etc... Legitimate is that which respects both law, and rights... and the law itself must be licit and legitimate to be right.

Rights cannot be disposessed of, only respected, violated, or abrogated; whether by force, fraud, or willing consent.

... Willing limitation of rights, competition of rights, and intersection of rights in such contexts are MUCH more complicated questions...

Proof?

As I said above... The propertarian principal of individual rights, provides for a logical derivation and progression of rights, from first principle, without external appeal to authority.

So... here is the logical and epistemological progression and proof of individual rights; from, in reference to, and in the context of; the propertarian principle of individual rights, or the principle of self ownership.

First, our assumptions, and statement of principle...

Sentient individuals exist.

Property exists.

Rights exist.

Property may be held privately, by sentient individuals.

Sentient individuals may not legitimately be property of other individuals or entitites.

If we are sentient individuals, not owned by society, or any other superior individual or entity, then we must own ourselves.

Now, we derive our progression of rights...

If we own ourselves, then there must be rights, inherent to our nature as sentient individuals... These rights begin with, and proceed from, the right of self ownership; because without rights, there is no ownership... only possession.

If there is an inherent right of self ownership, and we are sentient beings, then we must have the right to freedom of conscience.

If we own ourselves, and have freedom of conscience, then we cannot be dispossessed of our rights even by willing consent; as self ownership and freedom of conscience cannot be dispossessed of without negating sentience and individuality.

If we own ourselves, have freedom of conscience and cannot be disposessed of our rights, then our rights can only be abrogated or violated by force, fraud, or willing consent.

If we own ourselves, have freedom of conscience, cannot be disposessed of our rights, and our rights can only be abrogated or violated by force, fraud, or willing consent; then all sentient individuals have the same rights, and no individual can have any rights that are superior or inferior to the rights of any other individual.

If all sentient individuals have the same rights, which cannot be superior or inferior to any other, then no sentient individual can be superior or inferior to another.

If no sentient individual can be superior or inferior to any other, then no individual can own any other or be owned by any other.

If we own ourselves, have freedom of conscience, and cannot be dispossessed of our rights, then we must have the right of private property, which consists of the rights of posession, determination, use, exclusion, disposal, and benefit of such property (including our selves in the entire).

If we own ourselves, have freedom of conscience, and have the right of private property, then we must have the right of defense of self.

If we own ourselves, have freedom of conscience, and have the right of private property, then we must have the right of self determination.

If we own ourselves, have freedom of conscience, have the right to private property, and the right to self determination, then we must have the right of association.

If we own ourselves, have freedom of conscience, have the right to private property, the right to self determination, and the right to free association, then we must have the right to form contract.

If we own ourselves, have freedom of conscience, have the right to private property, and the right to self determination, the right of association, and the right to form contract; we must also have the right to form voluntary collectives of individuals and to delegate certain rights and powers to them.

If we can form a voluntary collective of individuals, all individuals have the same rights which cannot be disposessed, no individuals can be superior or inferior to any other, and no individual can own or be owned by any other...

 ....then no collective of individuals can be a separate entity unto itself with rights separate from the rights of the individuals making up the collective, nor can any collective of individuals be superior or inferior to any individual, nor possess or exercise rights not posessed by all individuals, or which are superior to those of any individual.

... Thus, we are able to have societies, and states, which respect and protect individual rights, and which do not violate or abrogate them; without requiring collective rights, or collective ownership.

That's the epistemological progression from the propertarian principle, through to the existence of societies and states, with the exclusion of collective rights, and collective ownership... It is a complete chain of reasoning, derivable from and to first principles... progression and regression.

All things which are ACTUALLY rights, as opposed to grants, franchises, etc... can and must be logically and epistemologically justified within this progression, or from this progression. All things which cannot be logically and epistemologically justified within or from this progression... as dervied from and in the context of the propertarian principle... are not, and can not be, rights. They are something else, that are not rights.

Trump Must be Held Accountable for the Bad Actions of His Campaign

This past Tuesday, Donald Trumps campaign manager Corey Lewandowski assaulted a reporter at a press event with Trump...

...in fact right in front of him... Then he walked Trump out of the room right over the woman he knocked to the ground.

He not only physically assaulted a reporter...

...a FRIENDLY reporter no less... for asking a question he didn't like...

...An assault which was caught on audio tape, as well as witnessed, verified, attested to, and already been written about by other reporters who witnessed it...

...But for the last two days, he has directed the Trump campaigns full resources, first to deny the assault ever occurred.. but, far worse... To  attempt to discredit,  defame the character and professional reputation of, and to otherwise ruin... to destroy professionally and personally... the reporter in question.

To this end, they have made baseless accusations of fraud, professional and personal misconduct, and attention seeking. They have also had their proxies attack her relentlessly online; resorting to vile sexual innuendo, and bald faced misogyny.

Lewandowski did not do this alone... the whole campaign was directed towards trying to destroy this woman, with the full knowledge and support of Donald Trump himself.

These are not the actions of an responsible, honorable, or even sane man.

A responsible man wouldn't have done it in the first place... And were Trump a responsible man, he would have stopped, helped the woman up, apologized, and made sure his man apologized.

An honorable man would have immediately admitted fault, and apologized... and were Trump an honorable man, he would have done so, and ensured his man did so.

Even just a sane man, would have immediately made a reasonable face saving excuse, and a small and quiet apology for the "accident"... a trivial gesture to avoid trouble, as well as just the proper thing to do.

Instead, when caught and confronted with proof... these men spent two days trying to destroy the person they assaulted.

These are not the actions of sane men.

They are the actions of raving malignant narcissists, who must destroy anyone they have wronged, rather than admit even the slightest error, fault, blame, or weakness.

These are not the actions of anyone we should ever even think of allowing, anywhere near the power of the office of President... Or any kind of position of trust or responsibility.

These are men who will do anything... say anything... destroy anything... in their pursuit of power.

If Trump and his people are willing to go all out in trying to destroy a reporter, to avoid admitting a relatively small mistake, and making a trivial apology... What would they do if they made a major mistake... if people died... What could possibly be beyond limits to them?

Lewandowski, and Trump stand equally guilty, and equally responsible. If Trump had apologized or fired him Tuesday, or Yesterday, or today... If he hadn't allowed the smear campaign to happen...he could perhaps distance himself from it... Instead, he chose instead to put his full support into trying to destroy the woman.

And now... they both must face the consequences.

Lewandowski must be terminated immediately, expelled from the Republican party, and barred from participating any Republican party campaign; as must anyone in the Trump campaign, who participated in the attempt to destroy this reporter.

Trump must admit his staff and campaigns bad actions immediately, take full personal responsibility, and apologize personally to the reporter; as well as to the witnesses to the event, their media organizations, and most importantly to the American people.

If he does not, then he must be censured by the party, barred from participating in any Republican party events or activities, and from campaigning as a Republican, or for any Republican position or nomination; until such time as he takes responsibility and makes his public apologies.

If he refuses to admit any responsibility or fault, and does not apologize at all... or worse, the campaign continues these attacks in any way... he must be expelled from the party, and removed from any consideration for nomination for any elective position as a Republican candidate.

This is no longer about a campaign manager being too pushy... This is about the integrity of the American political process; the honor, integrity, and legitimacy of the Republican party; and our honor and legitimacy as a nation.

We cannot allow someone who would do such a thing to represent us, in any way, ever.

We are better than this.

Update: A video has surfaced clearly showing the assault, and Corey Lewandowski has been arrested on charges of Battery, but the Trump campaign has doubled down; now instead of claiming that it didn't happen, that instead, Lewandowski was protecting Trump from assault by Fields. 

Misunderstanding Law, Government, and Society

Most people... At least most people in modern western democracies... Seem to have a fundamental and unconscious assumption about the nature of law and government, that goes something like this:

Law and government, are or should be, the expression of the will of the majority, for the purpose of making collective decisions, taking collective actions, fixing problems and righting wrongs.

If I gave that definition to most people as what government "should" be, or even what it is, I'd guess they would agree.

 But that's not what law and government are at all. In fact, that notion of the nature of law and government, is not only wrong, it is extremely harmful.

What are law and government?

Government, is the instrument of collective delegation of the legitimate initiation and use of force against others. 

Law, is the body of rules by which that force is administered and applied. 

The only legitimate purpose for which, is to secure and protect the rights of individuals governed by them.

So, what's the other thing, and why is this a problem?

 The other definition, is more properly that of society (as distinct from culture).

Government is NOT Society, and Society, is NOT Government

This conflation of government, and society, is a very serious social and political problem because those who hold it... and I firmly believe it's a large majority... believe that law and government, should be used for "doing what's good, and stopping what's bad".

They naturally wish to see government do what they think is right, or best, and stop that which they think is wrong, harmful, or wasteful... And not just in areas where force should be applied.

They conflate "legal" with "good" and "illegal" with "bad", and try to make laws against things which they think are bad, or mandating things which they think are good.

 They often even conflate "legal" or "attempting to make legal" with "approving and supporting", and "dissapproving and opposing" with "illegal" or "attempting to make illegal".

This is incredibly harmful

We have allowed... even encouraged people... to deeply hold the fundamental notion, that they get to vote on other peoples opinions, choices, and behavior; and if their "side" wins the vote, that it is legitimate to make those things legal or illegal.

 It also means that these people automatically and reflexively try to solve personal, moral, social, or societal problems, with government and law, when it is entirely inappropriate, even harmful, to attempt to do so.

Most of those problems cannot be solved by the use of force;, or at best can only be solved inefficiently, ineffectively, and while violating the rights of others.

 In encouraging this misapprehension, we have in fact made the personal, the political, and the political, the personal.


How do we stop the harm?

We must correct this critical error in peoples fundamental apprehension of law and government. 

People need to understand, at the most fundamental level, that government is force, and that law is how that force is directed and administered. No more, no less.

If we don't correct this misapprehension, then we will continue to simply seesaw back and forth between majoritarian tyrannies, as social changes dictate.

Rights will continue to be violated and abrogated as the opinions of society fluctuate.

The favored, will continue to be privileged over the disfavored at the expense of the disfavored's rights, until the pendulum swings again and the roles are reversed.

Yes, I realize, that is largely how it has always been... But never has law and government had such a depth and breath, had so great a reach into our personal lives, as it does today, and this unfortunately shows no sign of receding.

The absurdity of this reach... and overreach... is finally becoming apparent to many people, on all ideological "sides"; be it the "war on drugs", the "war on terror", privacy and surveillance, or gay marriage and wedding cakes.

So, we have to take action, now 

Use this growing awareness of the overreach, to help people understand.

We have to show people these aren't just outlying excesses. That they result from the way we think of, look at, and attempt to use, government.

We have to get people to understand, that if they can say "there ought to be a law", and then get a law made banning something that they don't like; then their worst enemy, can get a law made banning something they love.

We have to return to the notion that fundamental rights matter, and that the only legitimate purpose of law, and government, is to protect those fundamental rights.

Everything else?

That's up to individuals, and to society as a whole, NOT GOVERNMENT.

Voluntary collective action. If it's really what people want, then they'll work for it, without the threat of force. If it's not really what they want, then we shouldn't be forcing people to do it.

Performance Enhancing? Nope... normalizing... But don't try to tell the DEA that.

There's a funny thing about my life... I'm not sure if this is comic, tragic, ironic or what...

I spent more than 10 years as a serious competitive powerlifter, football player, wrestler, and martial artist, and another few years as a just a hobbyist.

In that entire time, I never did a single "performance enhancing drug"... Never even tempted to do so.

Now I'm a broken down, fat, middle aged cripple... who the DEA looks at like I'm a drug dealer or abuser of "performance enhancing substances"... just to keep from getting fatter, more broken down, and more crippled.

I'm 8 years into the frank symptoms of chronic illness (which turned out to be a weird and rare kind of endocrine cancer, that almost killed me, and basically destroyed my endocrine system. I have been cancer free for almost 2 years now), and  I am now on damn near the exact combination of drugs that "juicers" would traditionally use for such things.

I take more testosterone every week than most steroid abusers would even think of... and I don't cycle it, I take it constantly, deep muscle injection every week.

I take an aromatase inhibitor to keep all that testosterone from converting to estrogens and testosterone antagonists (and giving me all the nasty side effects that not cycling off testosterone injections give you). We're experimenting with that one right now, but we may end up adding an estrogen/estradiol antagonist to the mix on top of the aromatase inhibitor.

By the by... those drugs are normally what they give to breast cancer and ovarian cancer patients. They actually say in the interaction warnings "do not take if you are a man"... unless of course you're a man whose body is producing too much estrogen, or converting too much testosterone into estrogens and testosterone antagonists, and blocking his ability to produce and use testosterone properly. If you're not one of those men, it dramatically increases the effect of testosterone (and other steroid hormones) on your body.

I'm on enough primary thyroid hormone to quite literally kill a normal person... in fact, not just "enough", the amount I take is several times the lethal dosage. It's still may not be enough for me. The doc just increased it today, and will probably increase it again in 6-12 weeks when we sort out the effects of the new meds. Sometimes athletes abuse thyroid hormones for weight loss, increased energy, and to boost other performance enhancing hormones naturally.

For allergies, and for inflammation pursuant to the endocrine issues, I take two different other steroidal medications (a glucocorticoid and a mineralcorticoid), which act as bronchodilators and anti-inflammatories.

To deal with some of the unfun and nasty side effects and after effects of the cancer (to improve metabolic function, energy, mental acuity etc...) I'm also taking enough creatine to put a normal person into kidney failure... For me, it actually makes my kidneys work better.

Because of the aftereffects of the cancer, the endocrine issues, and the side effects of the medications, I'm on megadoses of vitamins and minerals. I mean MEGADOSES.

Between all of those, my growth hormone production and DHEA production should be elevated through the roof... as if I was taking illegal supplementation of HGH. It's not... because my endocrine system is so screwed up.
For my edema (another lovely endocrine side effect, which can be made worse by my meds), I take more diuretics than the most abusive wrestler, gymnast, or bodybuilder. I've lost 24lbs in 24 hours, and 48lbs in 7 days just from the pills.

For musculoskeletal pain and systemic inflammation, I'm on more and stronger anti-inflammatories than any athlete rehabbing after a major injury (I take 1000mg of etodolac twice a day). I also get periodic shots of antiinflammatory medications directly into my knees.

Those let me get out of bed and walk. Without them... I just don't.

Between my normal blood chemistry, the damage the cancer did, and the side effects of medications, I've got polycythemia, and I'm a hyperclotter. I'm basically naturally blood doping.

To counter the aftereffects of the cancer and make the other meds work better (adrenal and pituitary support), I'm on enough stimulant medication (which is also a bronchodilator) to make the DEA look funny at my doctor... until he explains all of the above.

In fact, the DEA looks funny at several of the drugs I'm taking above. My doctors have had to explain to my pharmacists, and both have had to explain to the DEA... no, I'm not a drug dealer or abuser, I'm not a steroid abusing weight lifter... I'm just a guy who needs this stuff to live.

I should be taking actual pain killers too... I've got enough musculoskeletal  damage, neurological damage, and inflammation, that my baseline background pain is pretty substantial.

For those familiar with pain management, I live at about a 3-4 most days, with breakthrough to a 7 on good days, and 6 or 7 with breakthrough to 9 or 10 bad days.

That's with the meds. Without... there are no good days. There's just days I can get out of bed, and days I can't.

I simply refuse to take painkillers. They don't do a damn thing for me unless I take horse tranquilizer doses, and then they knock me out cold... or worse, leave me sami conscious and barely awake, but unable to think, or concentrate, or really actually sleep. Beside, I don't like the other side effects.

I've learned just to live with the pain, and take what pain reduction I can get with my other medications.

And by the way... this is a MASSIVE REDUCTION of the stuff I used to be taking, during the cancer. My primary care physician and my endocrinologist are both alternative and integrative medicine believers who hate drugs, and only prescribe the absolute minimum necessary.

I'm not overmedicated... if I go off of any of them, or all of them, nothing gets better and it all gets worse. We've done differential testing, going off one at a time and seeing the impact then going back on, then varying dosages... I'm definitely not overmedicated.

If anything, there are some other medications that might help me more. We're very slowly adding things in one at a time, so we can test and measure and adjust.

This isn't overmedication...

This is what happens, when your endocrine system completely loses the ability to regulate itself. It's trying to regulate through medication, what the body normally regulates naturally.

It's what I need to live, and be functional.

The worst thing is though... because of DEA actions, regulations, guidelines, and investigations... Several of my medications, that I need to live, and be productive, and actually be ME?

They're constantly short of them, or out of them entirely. Sometimes it's every pharmacy within 30 miles.

They don't stock them, they don't stock the dosages I need, or they don't stock enough to fill my scrips for a month.

I have to get hand written, signed scrips every month, I can't get refills, and I can't get more than a 30 days supply at once. If I'm caught with more than a 30 days supply, I can be charged with unlawful possession, and possession with intent to distribute.

I have to hand carry those scrips to the pharmacies, only for them to tell me that it might be a week, maybe two weeks, before they can fill the scrip; because the DEA production quota for that quarter had been exceeded, or the distributors orders were above the DEAs suspect threshold, or because they had sold out of all they could order for that month without the DEA investigating them, or because one scrip of mine was more than the DEA told that pharmacy they could keep in storage.

We won't even get into what the drugs themselves cost, or what they would cost without the regulatory and compliance burden to deal with these issues.

...And god help me if I actually took the painkillers I should be taking.

All this... because the medications that I need to live and function... are sometimes abused by other people to "enhance their performance".

... and somehow, some people still seem to think that the "drug war" is helping?

Windowpanes, Pencils, and Paperclips

Yesterday I wrote something on facebook that bears repeating here:

A comprehensive understanding of the pencil problem, combined with a thorough understanding of the broken window fallacy (and its inputs and corollaries... Hazlitt for example), makes a pretty good inoculant against socioeconomic lies and stupidities. 

Although they are implied by the conditions above, perhaps one should also specifically reference the scale and complexity problems, the perfect information fallacy, the perfect man fallacy, and the law of unintended consequences...

Some of my readers were unfamiliar with the pencil problem.

In comments, the novelist Ryk Spoor provided a decent explanation, which I'm going to paraphrase here, with my own edits and revisions (and the addition of the last bit, about planning and control):

No one man, can make a pencil, or at least a pencil which could be sold economically. 

In general terms, the pencil problem, is that even simplest and most common objects in our civilization generally require an immense number of people and inputs; to not merely build, but manufacture and sell in sufficient numbers, to make it worthwhile to build them cheaply (or at least so that they can be sold economically). 

The applies to everything from cars and computers, to pencils, to paperclips. 

If you wanted ONE paperclip, it would be an epic undertaking, from locating the appropriate ores, refining them, turning them into steel, figuring out how to draw the steel into the appropriate size of wire, and then finally producing the paperclip from that wire. The amount of effort involved in it would be months of your labor, assuming you had the talent and resources to do it at all. 

Instead, you go to a store and buy a 100ct box of them for a dollar; or even at minimum wage, a few minutes of your time for a hundred of the things. 

Multiply that by all the different types of goods and services in a modern civilized society, and it starts to become clear just how many people, in how many different specialties, with how much infrastructure, are needed to keep everything running. 

Given that scale and complexity, it should also be clear how impossible it would be to plan, control, and manage, anything approaching a national economy or infrastructure centrally; or in fact in any way other than as devolved and decentralized as possible.

The original statement of the problem in this way came from an essay by Milton Friedman (which was a restatement of an earlier essay from Leonard Read, which was a restatement of Hazlitt, which was a restatement of Bastiat and back down the chain).

A video of Friedman explaining the problem:

The problem with "Wouldn't it be..." and "Wasn't it..."

Progressive ideas usually begin with:

"Wouldn't it be great if..." (progressives are generally theorists)

Ok, right there with you so far...


Conservative ideas usually begin with:

"Wasn't it great when..." (conservatives are generally empiricists)

Yup, that works for me too...


The complication is the next step, taken by both progressives and conservatives:

"Since that would be great, it is our moral obligation, to use the force of government to MAKE it that way"

... and that's where we part ways.


The problem, is that I believe I have no moral right to force MY personal beliefs, preferences, or ideas on anyone else (no matter how "great" or "right" they may be).

I also believe that we have a moral obligation to use the force of government as little as possible (even if doing so may be "for the greater good").


Of course, that's where the kicker hits, from both left and right...

"Since you oppose something which is great, and which is a moral obligation, you must either be stupid, or evil"

"Climate Change", and the false dichotomy of "evil or stupid"

Once again the drumbeat is sounding throughout that land, that Republicans... or rather, everyone not a leftists... are "anti-science", "pro-ignorance" etc... etc...

I am constantly hearing some variant of "Republicans are either evil or stupid for not... X".

The sad part of course, is that a certain percentage of non-leftists, including libertarians and conservatives are in fact, nuts, particularly about science... and another large block are ignorant.

Of course, so are large blocks of those on the left... but that's not what we're talking about right now.

There are certainly many scientific issues over which the ideological spectrum split, but likely the biggest one, with the most uniform split (there's very few whose ideological "side" don't match the position staked out by that side, to some degree or another)....

"Climate Change"

Ok, talked about it here before, and there's plenty of great resources on the topic (try Climate Skeptic and Watts Up for a start)... But it's an issue among my friends right now, and Neil Degrasse Tyson has been talking about it lately, facebook is covered with it right now etc...

So, let me just lay things out for a bit...

First, YES, there ARE loonies out there who say that there is no climate change "because Jesus" or "It's all a conspiracy man" etc... etc... etc...

Feel free to ignore them, as you would on every other subject. They don't represent any kind of reality based universe, never mind a rational position.

There are also those who simply say that there is no such thing as climate change whatsoever... But mostly they are either ignorant of, or don't understand, the science, math, or historical record in question

And yes, there are far more of those than there should be in 2014.

However, some of us come to our positions through a knowledge of science, engineering, math, the scientific method, research methodologies and data analysis.

There are those, myself among them, who actually DO understand science, and don't believe in CATASTROPHIC, ANTHROPOGENIC, CO2 FORCED, global warming, leading to systemic, catastrophic climate change.

We are not irrational, ignorant, evil, driven by unsavory motives, or stupid.

We come to this position, because we understand that:

1. The question isn't whether climate is changing and will change in the future, it always has and always will. The question is how much has it, how much will it in the future, and why.
2. Catastrophic, anthropogenic, global warming leading to catastrophic climate change, is a tightly interconnected theory. For any element of the conclusions to be correct, ALL of the suppositions within the theory must be correct. The instant any of them changes, at all, the theory falls apart.
3. The mathematical models for this have always been highly speculative and have proven non predictive both forward and backward.
4. The data is greatly variable ( and often poor) in quality, and is adjusted in ways that make it less than useful for a model with high sensitivity predictions, because small changes or inconsistencies in the data make big changes in the model.
5. The catastrophic model adopted by the U.N. has some major dependencies which are entirely theoretical, and have not been borne out by historical facts; specifically estimates of forcing, estimates of weighting of various factors, and particularly estimates of extremely high sensitivity to certain factors (especially CO2), that while throughout all of history have exhibited one behavior (a stable, negative feedback system), for some reason (i.e. humanity is bad and stuff), things have changed now... even though CO2 has been much higher in the past, and it didn't happen then... Such that a very small change in CO2 will have a large multiplier effect, transforming the stable negative feedback system that the climate has been throughout the entirety of history to this point, to an unstable positive feedback system.
6. There is no evidence for this catastrophic theory, nor does it correspond with historical models, or models that prove to be historically predictive (i.e. if you run the model backwards and forwards in time, it matches roughly with what actually happened).
7. This prediction has been made since the mid 80s (prior to the mid 80, from the early 70s they were predicting global cooling and ice age by the way), and the models have proven to be grossly inaccurate. They are constantly revised to reflect the same conclusion, but never actually predict what ACTUALLY happens in the real world. There was initially slightly more warming than the previous historical models predicted, but by 1991 warming was back to the historical trend line, and there has actually been no significant warming since 1994-1998 depending on exactly which dataset you look at.
8. Human outputs from all of industry, vehicles etc... Make up less than 1% of total atmospheric CO2... actually between .3 and .4%. The VAST majority of CO2 comes from forests, oceans, animals, and soil (and the bacteria contained therein). They also absorb CO2 in the natural CO2 cycle.
9. If the historical, non catastrophic models prove correct, and they have so far, there will be between less than 1 and just over 2 degrees centigrade warming in the next 100 years. This is not catastrophic, and is consistent with warming/cooling cycles throughout history.
10. If all human output of carbon dioxide and other theorized elements of climate change stopped right now, today... That number wouldn't change at all, or at most very little. Within the margin of error.
11. Once you take the catastrophic sensitivity to a tiny change out of the model, many other factors become far greater "forcings", particularly the suns variability (relating to sunspot cycles).
12. If the catastrophic models are correct, either we already have, or we soon will, pass the point of no return. We would not only have to completely stop emitting CO2 entirely, but we would have to take large amounts of it out of the environment.
13. No matter what, the developing world isn't going to stop burning wood, and coal, and growing and modernizing and using as much hydrocarbons as they can. They don't give a damn what european liberals think, they just want to cook their dinners and have lights at night.
14. No matter what, China and India aren't going to stop being 80+% of all CO2 emissions from human sources, because if they did they'd all be plunged into even greater poverty and likely starve to death. 

What it comes down to is this:

1. If the catastrophic models are correct, it's too late to do anything about it anyway.
2. Even if every western nation utterly stopped producing ANY output which contributed to climate change, it wouldn't make any difference whatsoever.
3. If the catastrophic theory is wrong, and everything point to it being so, then we would be spending trillions of dollars, destroying economies, ruining millions or billions of peoples lives etc... All for little or nothing.
4. There are real, actual, proven problems that are far more likely to be important, and that we can actually do something about, that are much better ways to spend our time and money.

Ok... so why do so many people support the idea... particularly so many scientists?

The same reason anyone does anything... because it aligns with their perceived incentives, beliefs, worldview, narrative, and identity. 

To wit...

1. Funding
2. Social signaling an ingroup identification
3. Politics
4. Power and control (climate change legislation is all about taking power and control from one group, and giving it to another)
5. Ideology and alignment with world view
6. The precautionary principle
7. Anti-capitalism
8. Funding
9. Because if they don't, they don't get jobs, their papers don't get published, they don't get university positions etc...
10. Because they know that it's not as bad as the press makes it out to be, but that making it super duper scary is the only way to make the morons out there pay attention and actually make some of the good positive changes that need to happen (like more energy efficient technology, and more research into alternative energy)
11. Because the entire world has lined up into teams, not just about climate change, but about ALL social, cultural, and scientific issues... Evolution, homosexuality, everything else about the environment etc... and one team has decided to label themselves "progressive" and "liberal" and "pro science" and the other team "anti science", and nobody wants to be "regressive" and "anti-science".
12. Did I mention funding? There is no funding in saying "things are going to be about like they always have been, with some small changes as expected, and maybe a very small degree of increased change... it will have some moderate impacts". That's boring, and it gets ignored, and no-one gets any funding, and you can't do additional research on it. No-one is paying for research into squirrel populations and how "1 degree per century of climate change will impact them).

Yes... I repeated myself, in several different ways there... That was intentional.

The Broken Record

Catastrophists have a record, of being broken records... and being mostly or entirely wrong.

From 1974 until 1985 or thereabouts, many of the exact same scientists, politicians, pundits, and environmentalists who today are saying are going to warm our way into a combination of ice age, deserts, and typhoons everywhere... were saying the exact opposite.

At the time, their theories and models said that we were going to precipitate our own ice age, blocking out the sun, and that crops would fail and we would starve to death.

The fact is, we've heard over and over again for decades that if we don't do exactly what this one particular group wants us to do about any particular issue within 5, 10, 20 years etc... that we're all gonna die, the world is gonna end, everything will turn to dust, there will be no birds, no trees...

Anyone remember when acid rain was going to kill us all?

Yes, in part, it's because we did respond to the concerns of the environmentalists, regulations were changed somewhat, technology got better, we polluted less and cleaned up more. These are all good things.

But mostly it was because they were dramatically overstating both the problems, and the solutions; either because they actually believed it, or for political reasons...

Seems to me, mostly for political reasons.

Mostly we haven't done what they asked.

The world didn't end.

We didn't all die.

Of course, that doesn't mean they aren't right this time...

...One of these times they just might be... or at least they might be more right than wrong...

...it just means that we should really be very careful, and very skeptical, about what they say, what we believe, and what we do about it.

Oh and one more thing...

There is one final, and almost universal test of the validity of someones claim that "everything has to change".

It can't prove that a claim is true... but it can nearly always prove a false claim to be false, or at least greatly exaggerated.

Simplified, it's called the "Act as If" test.

Does the person making the claim, act as they would if the claim were true, and as urgent as they say?

Is it conclusive? No... but it's a pretty strong indicator.

Do those who say they believe in truly catastrophic anthropogenic global warming pass this test?

Do they actually act as they would, if they actually believed their predictions. 

The answer is very much no... not even close.

So, if they don't... why should anyone else?

There can be no other explanation...

I got a comment on my post "Why I am NOT a libertarian", which amused me to no end:

"If you are stupid and uneducated, who is writing your posts? 

False humility is not a virtue."

Yeah...

Somehow, the notion that someone could be obviously highly intelligent, and yet still have humility about their intellect...

...Or rather, perhaps to be more precise, lack the hubris necessary to believe that I could possibly EVER be intelligent enough, that I can make decisions for anyone else...

... is utterly inconceivable.

Someone with the I.Q. and education I have, COULDN'T POSSIBLY be sincere, and actually mean that I was not, and could not possibly be, smart enough.

I MUST be lying for rhetorical effect, or being ironically self aggrandizing.

There can be no other explanation...

Perhaps my long term history of passionately expressing this idea both personally, and as a libertarian activist and writer; with for example, pieces like this:

"It's Not About Elites or Idiots"

... could "prove" that I actually believe in what I have said.

Perhaps...

But, for those possessed of the authoritarian or paternalistic worldview...

...probably not.

There are more reasons than can be counted, why hubris, is the greatest, and most dangerous, sin (be it spiritual, intellectual, or both).

Why I am NOT a libertarian...

I am not a libertarian because I think I'm smarter than you.

I am not a libertarian because I think I'm better educated than you.

I am not a libertarian because I think I'm morally or ethically superior to you.

I am not a libertarian because I think I have better ideas about running things than you.

I am a libertarian, because I recognize that no matter how smart, educated, experienced, informed, and competent I THINK I am...

...I KNOW that I am ALSO stupid, uneducated, inexperienced, ignorant, incompetent, and fallible...

...just like everyone else.

I am a libertarian, because I recognize that I do not have all of the information, knowledge, education, experience, judgement, and wisdom; to always make good decisions about MY OWN life, business, or circumstances.

I am a libertarian, because I understand that in fact, it is impossible for me to do so.

I am a libertarian, because if that's true of my OWN life... Then I absolutely and certainly do not, and can not; have the information, knowledge, education, experience, judgement, and wisdom; about YOUR, or ANYONE ELSES life, business, or circumstances, to make anyone elses decisions for them.

And neither do you...

And neither does the government...

Freedom, Group Identification, and Consequences

To anyone trying to make the Cliven Bundy issue, or the Donald Sterling issue, or the Brendan Eich issue about freedom of speech...

...PLEASE STOP...

They are unrelated, and MOSTLY irrelevant, to free speech.

None are a question of freedom of speech.

All three are a question of bad PR and violating contract terms.

These idiots are not victims of oppression... at least as far as speech goes.

"Well, that's just your perspective... this is mine"

No... You can have your own opinions, you cannot have your own facts.

This is not an opinion or a perspective, it is a fact. In making this argument, you are entirely and completely incorrect, in both fact and in principle.

That's not so bad... it's OK to be wrong... everyone is wrong about many things, every day.

What IS so bad, and why you must be corrected, is that by passionately advocating such a patently false viewpoint, and making weak and specious arguments to support it, you weaken the very important ACTUAL battle to restore and maintain free speech.

Using bad arguments for your cause HURTS your cause, it does not help it.

There are some very serious threats to free speech in this country, particularly on college campuses and in schools. There are supreme court cases in this session, and coming up addressing these issues right now... and the picture is decidedly mixed.

• We are dangerously close to criminalizing, or at least accepting some kind of official sanction, on "hate speech" in this country. We already HAVE criminalized "suspect motivations", through "hate crime" law.
• The Government is spying on and intimidating reporters, with the DOJ going after those it perceives as enemies.
• Witnesses are being suppressed out of fear of government retaliation.
• The IRS has gone after conservative political groups, simply for being conservative.
• We have enacted insane regulations about who can say what, when, and with how much and whose money, when it comes to politics and elections. 

These are HUGE REAL PROBLEMS.

By equating things which are not about rights and freedoms, to things which are, you weaken rights and freedoms, and make them more difficult to defend.

Freedom of speech means you have the right to say as you damn well please and the government can't stop you or punish you for it (except in some very strictly limited ways).

It doesn't mean that private persons or organizations have to publish you, support you, employ you, associate with you, provide you with a forum or an audience, or listen to you.

Freedom of speech does not mean freedom from consequence.

If you can't back everything you say, and accept the consequences, then perhaps your problem is not one of lack of freedom, but of lack of courage.

"But... but... political correctness... thought police... BAD"

Yes.

I never said that political correctness WASN'T a chilling force on freedom of speech and even freedom of conscience... Of course it is.

...But that is not the same as government using force against you because of it (though with "hate speech" and things like campus "speech codes", we have to be very careful of that).

The problem with believing in freedom is that you have to believe in it for everyone, including people you don't like, or whose ideas you don't like, or who do bad things with it.

Private individuals and organizations can choose who they wish to associate with freely, and who they wish to support or oppose freely (or at least they are supposed to be able to).

That means both things and people that you like, and things and people that you don't.

That means you can be fired for expressing yourself. It means you can be fired for your political and social views. It means you can be fired for your private behavior. It means you can lose your customers, your money, your reputation...

In fact, everything but your life, and your freedom.

A free society means we have to put up with that.

We don't have to like it, but we DO have to put up with it.

And many of us actually have very little problem with it... so long as it's aligned with THEIR personal beliefs.

Frankly, I don't see very many "social conservatives" complaining very much when it's "progressives", gays, atheists, muslims, "perverts" etc... who experience negative consequences for their beliefs (admittedly, that is certainly not true of all. Some do decry all of this as suppression of free speech and freedom of conscience).

Most "social conservatives" aren't complaining when church groups or conservative groups try to get certain things banned, or removed from libraries or schools, or have teachers, or school administrators, or abortion providers fired...

...because you don't like their ideas or how they express them.

...Really, most anyone who you would identify as the enemy, or the "other side" or whatever other outgroup identification it may be.... seems it's ok to you if THEY have to live with the consequences of their choices, actions, and words...

Most of you are only complaining when it's happening to those you identify as YOUR ingroup, or for people whose opinions and ideas you agree with.

Again, not always, not everyone... but most.

The same of course is true of "the other side"... starting to see the point yet?

So really... What you're asking for is not "freedom of speech", it's "freedom of speech that you like", and freedom FROM both speech, and consequence that you don't.

That's not freedom. That exactly the same as "the other side"... you just like the opinions better.

The Much Bigger Problem

Millions of Americans think gays should be allowed to marry.

That's not a problem.

Millions of Americans think gays should not be allowed to marry.

That's not a problem.

The problem, is that most of both groups think that it's perfectly acceptable to use the government to force the other guy to do what they want.

The much bigger problem, is that we have stupidly given the government the power to make and enforce such decisions.

The Problem With Freedom

Here's the problem with supporting liberty and freedom... You have to support peoples liberty and freedom to be assholes and idiots.

I think discriminating against gays or blacks or anyone else for some arbitrary characteristic that doesn't harm you is fucking idiotic, and proof that you are a total asshole.

However, I think you should be free to associate with, or exclude, anyone you want to from your private property, or private business.

Why?

Because that's what freedom of conscience, and true property rights are.

The  right to associate with those you wish, and not associate with those you do not, is inherent to freedom of conscience.

The right of exclusion IS one of the three fundamental rights of private property (the others being the rights to use and dispose of the property as you see fit, and the right to the outputs, proceeds, and benefits accrued on or by the property).

Arbitrary discrimination by private businesses is wrong, stupid, offensive, and just bad business.

But it shouldn't be illegal.

Note: At least not for truly private businesses. 

There is an argument to be made that public corporations, because of the legal protections they receive from the government, and their "public ownership" through equities; should not be allowed to discriminate. Some even argue that by obtaining a business license, a business can be prohibited from discrimination. 

Unless such prohibition is written into the laws for licensure of these businesses, or for the foundation and governance of corporations, I disagree with this argument (and I have issues with the concept of making anti-discrimination part of the law, again on the grounds above), but there is at least a basis for it.

Oh and for those of you who think this is just about gays... it applies equally to guns. I think that businesses that exclude lawful bearers of arms from their premises are idiots, and that it's bad business... but its THEIR property, and they have the right to exclude me if they want to.

The GOVERNMENT should NEVER be allowed to discriminate, nor should any public utility, or any organization with a lawful monopoly. Any organization with which interaction is mandatory, or their power over you is involuntary, can never be allowed to discriminate.

Private individuals, and their private property though, can never be prohibited from doing so... at least if we value and wish to preserve freedom and liberty (and in this country, frequently and unfortunately, we do not).

Freedom of conscience though, is a wonderful thing... They get to discriminate. Guess what, so do you. You can choose not to patronize their business. You can organize all your friends... and the entire world if everyone else is so inclined... to not patronize that business.

That's freedom for ya...

Oh and by the by, these laws currently proceeding in several states explicitly legally authorizing business to refuse to serve people on the basis of their sexual orientation, are part of the blowback I predicted would result from the current strategy many in the gay rights movement have of "suing our way to normalcy"... 

"Dammit, if they don't want to make my same sex wedding cake, I'll SUE".
Or worse "We'll get married in Massachusetts, and then move to Kansas and sue for them to recognize our marriage". 

Many lied saying that would never happen. Many more well intentioned supporters honestly believed the lie, and repeated it. 

When I raise this issue with my liberal friends, they often say that I am being ridiculous.  

It HAS been happening, from the first legally recognized same sex marriages in this country. 

It's a bad strategy, and it has and will continue to backfire.

Franchise limitation isn't the solution to illegal immigration

A few days ago, Roger L. Simon of PJ Media posted "A Modest Proposal for Immigration Reform".

"So here’s my simple — call it simple-minded, if you want — solution, my modest proposal.  Illegal immigrants, assuming they have lived here for a decent period of time and have not committed a felony, can have amnesty, but they can NEVER be allowed to vote.  They can do anything else that is legal, but if they want to vote — or run for office or practice law in our country, as just happened in California — they must return home and go through the normal immigrant application process, however long that may take until they have citizenship."

Now, Simon is a smart and well read man, and by invoking Swift in his title, it's possible that he is cueing the reader that the piece is satire... but it reads as straight to me.

...Unfortunately.

Oh, on its face it sounds like a decent, practical idea, as Simon writes:

"This takes political motivations off the table in immigration policy and allows it to be about the lives of the people themselves, not the advancement of politicians and their parties.  If our Democratic friends mean what they say about their “compassion,” they should have no objection. If they do, they simply expose themselves as political opportunists with no real interest in the welfare of what they euphemistically choose to call “undocumented workers,” only in creating a voting bloc."

That would be nice... and overall, denying the franchise to illegals given amnesty citizenship seems like an OK idea... better than nothing, better than most legislation ideas being bandied about, and addressing one of the biggest problems with mass amnesty.

Except that passing such a law would, in fact, be disastrous.

Sebastian of PAGunBlog referred to the idea as "Amnesty Light", which isn't a bad way of putting it. More accurate though, would be to call it "Citizenship light"... which is a problem in several ways.

First of all, purely from a practical standpoint, the franchise limitation provision would fail in its intended goal.

The core issue, is that if such a law passed, it would effectively create multi-tiered citizenship: "Amnesty Citizens" and "Full Citizens"

In addition to the MANY other areas where this could be legally problematic; this would almost certainly be ruled, by just about any court, to be a 14th amendment violation (a privileges and immunities clause violation at the least, and possibly an equal protection violation).

Of course, it is not necessarily unconstitutional to limit the franchise by legislation (though based on court rulings over the past 60 years, that has some pretty strict, if ill defined, limits). For example, federally, we limit the franchise to those over 18. In most states they limit the franchise of felons, to some degree or another.

It is almost certainly unconstitutional however, to permanently deny franchise en-bloc, based on arbitrary characteristics, or on acts that were committed prior to passage of such a law.

It may even simply be ruled to be a fundamental violation of our system of citizenship as a whole; and that congress does not have the power to create a limited class of citizenship through legislation.

... I actually think that's likely. I don't believe congress has the power to create a limited citizenship by legislation.

I'd say that was absolutely the case, but there is a little wiggle room in the constitution, the 14th amendment, and the body of citizenship law; which potentially leaves it open to interpretation by a judge.

In that case, creating a limited citizenship would require a constitutional amendment... which will NEVER happen.

Oh an important aside... Some may suggest that the legal problems could be circumvented by requiring amnesty seekers to voluntarily agree to give up the franchise as part of their citizenship agreement. Effectively, each amnesty seeker would sign a consent decree voluntarily surrendering the franchise.

Normally, a consent decree can be used to enforce conditions that the government otherwise would not have the power to enforce, but there here are a few major exceptions.

This country has a body of anti-slavery and anti-abuse jurisprudence, which has enshrined a basic principle of law and contracts: American citizens cannot voluntarily give up their basic rights, privileges, and immunities. They can agree to reasonable restrictions such as non-disclosure agreements, but they can't contract themselves into slavery for example.

There may be some ways to make it work legislatively of course. For example, in order to get citizenship via the amnesty, each illegal immigrant would have to plead guilty to a felony (don't get me started on felonies), but that could get very messy very quickly.

Really though, which specific issue the franchise restriction was struck down for is unimportant. There are enough issues here that eventually (likely very quickly), there would be a successful challenge.

Given that any law passed would almost certainly have a severability clause, and that the supreme court would almost certainly strike down such a broad restriction on the franchise (certainly, many groups would litigate the issue constantly, and until they got the result they desired); effectively there would be no compromise. A few years after the law passed... possibly even a few months.... the voting provision would be struck down, and the amnesty citizens would be voters.

And let's just ignore fact that this would inevitably become an incredibly nasty race issue...

It's not just impracticable though. As a matter of principle, such a law would be morally and ethically wrong, and corrosive to our liberty.

Citizenship is, and must be, absolute. It's an all or nothing thing. The United States cannot create multiple classes of citizenship, de jure or de facto, and survive in any recognizable form.

Simply put, that way lies tyranny.

This is not to say that all people should be treated the same at all times.

Individuals may, through their own actions and choices, cause the PRIVILEGES* society grants them to change. A society can restrict certain privileges to certain individuals, who qualify by their own actions and choices; or deny them to others, disqualified by their actions and choices.

... so long as all have equal status under law, and the law is applied equally.

*The franchise is a privilege, not a right; as for that matter, is citizenship. They can be granted or denied by society, as society defines; so long as the law is applied equally to all, and not arbitrary or capricious.

Citizenship though, is absolute in this country. With one single and extremely limited exception, a citizen is a citizen, with equal rights, privileges, and immunities.

In this country, you can't say "you're a citizen EXCEPT...". It just goes against the nature of what we are... or at least what we're supposed to be.

There's a reason why there is only one office in this country that a naturalized citizen can't hold (Ok, technically two, since you have to be qualified to the the president in order to be the VP... but it's entirely likely that part of the constitution will eventually either be changed, or that the supremes will decide the 14th amendment moots it). There's a very big reason why it's explicitly called out in the constitution, as the sole exception to the rule that citizenship is citizenship, no matter what.

When the constitution specifies very broad rights and principles, and very narrow restrictions and exceptions to them, that's not an accident.

I'm not denying that giving somewhere between 10 and 20 million (and no matter what the propaganda says, largely unassimilated. I've lived in Arizona, California, Texas, Florida) illegal immigrants the franchise all at once could be a major problem. No matter what, it would be incredibly destabilizing, and we almost certainly shouldn't do that.

Neither though, should we weaken the essential protections our rights, privileges, and immunities have against an overreaching state, in order to attempt to address that problem.

It's a matter of the camels nose... or if you prefer, perhaps the slippery slope (slippery slopes may be a formal logical fallacy, but they do in fact exist. That's how incrementalism works).

Today, it's former illegal immigrants having the franchise restricted. If we allow that though, in principle, it could be acceptable to remove the franchise from any group. You'd simply need to come up with "compelling justification".

If you try to say "oh, that can't happen here"... it already has. In the civil war, WW1, WW2... The internment of the Japanese is the best known example, but far from the only one.

The fact is, several times in our not so distant past, the government has arbitrarily decided, based on "compelling interest"; that some people weren't "real" citizens, with all the rights and privileges thereof. That it was acceptable to simply ignore these peoples fundamental rights as human beings, never mind as citizens.

... and each time, the supreme court ruled it constitutional.

The principle of absolute citizenship should be just that, absolute. You either have citizenship, and all the privileges and immunities thereof... or you don't. That's it. there is no "in between"

Of course and unfortunately, these are principles that we rarely manage to uphold. The "real world" has more examples of inequitable treatment under law, than you could ever count.

That this is true, despite what are in theory our best efforts, should not make us discard the principle however.

On the contrary... That this is true, should make it incredibly clear, that we should avoid deliberately writing inequality into law; no matter how compelling the cause, no matter how limited the scope.

Oh... There's one thing I agree with Simon on in the entire:

"Our country lives by the rule of law — at least we should.  Immigration policy has been a farce."

Bye Bye 4th and 5th amendment; Obamacare info may be used for Law Enforcement and Audit activities

Well... we knew that the 4th and 5th amendment meant nothing to them... never mind HIPAA... but really?

  Obamacare Marketplace: Personal Data Can Be Used For ‘Law Enforcement and Audit Activities'

Maryland's Health Connection, the state's Obamacare marketplace, has been plagued by delays in the first days of open enrollment. If users are able to endure long page-loading delays, they are presented with the website's privacy policy, a ubiquitous fine-print feature on websites that often go unread. Nevertheless, users are asked to check off a box that they agree to the terms. The policy contains many standard statements about information automatically collected regarding Internet browsers and IP addresses, temporary "cookies" used by the site, and website accessibility. However, at least two conditions may give some users pause before proceeding. The first is regarding personal information submitted with an application for those users who follow through on the sign up process all the way to the end. The policy states that all information to help in applying for coverage and even for making a payment will be kept strictly confidential and only be used to carry out the function of the marketplace. There is, however, an exception: "[W]e may share information provided in your application with the appropriate authorities for law enforcement and audit activities." Here is the entire paragraph from the policy the includes the exception [emphasis added]:

Should you decide to apply for health coverage through Maryland Health Connection, the information you supply in your application will be used to determine whether you are eligible for health and dental coverage offered through Maryland Health Connection and for insurance affordability programs. It also may be used to assist you in making a payment for the insurance plan you select, and for related automated reminders or other activities permitted by law. We will preserve the privacy of personal records and protect confidential or privileged information in full accordance with federal and State law. We will not sell your information to others. Any information that you provide to us in your application will be used only to carry out the functions of Maryland Health Connection. The only exception to this policy is that we may share information provided in your application with the appropriate authorities for law enforcement and audit activities.

The site does not specify if "appropriate authorities" refers only to state authorities or if it could include the federal government, as well. Neither is there any detail on what type of law enforcement and/or audit activities would justify the release of the personal information, or who exactly is authorized to make such a determination. An email to the Maryland Health Connection's media contact seeking clarification has not yet been answered The second privacy term that may prompt caution by users relates to email communications. The policy reads:

If you send us an e-mail, we use the information you send us to respond to your inquiry. E-mail correspondence may become a public record. As a public record, your correspondence could be disclosed to other parties upon their request in accordance with Maryland’s Public Information Act.

Since emails to the marketplace could conceivably involve private matters regarding finances, health history, and other sensitive issues, the fact that such information could be made part of the "public record" could prevent users from being as free with their information than they might otherwise be. However, as noted, any requests for such emails would still be subject to Maryland's Public Information Act which contains certain exceptions to the disclosure rules.

Read the fine print eh?

 These are such clear 4th and 5th amendment violations I can't believe anyone didn't immediately say "uh guys... we cant actually do this"...

... but as I said, we know that our elected and selected "lords and masters" don't give a damn about the 4th or 5th amendments (or really any of the others ones any time they become inconvenient).

So while I'm sure they were told they couldn't do it, I'm sure they said "ahh well the disclaimer and release is enough, we'll be fine".

 Yeah no.

 And as far as HIPAA goes... In reality these terms of use are not anywhere near an adequate HIPAA disclosure release, so using any of this data in any manner other than for healthcare purposes would be a federal offense.

Because it's Right... and Because it's Tactically Sound

A few days ago, an NBA player of no particular note came out as gay...

Which, really, should also be of no particular note.

But then ESPN decided to put a moronic bigot (whose name I won't mention and whose video I won't bother linking to here... why publicize idiots like this) to discuss the issue... and predictably he spouted moronic bigotry all over the screen, and made it an even BIGGER spectacle...

Now, the intarwebs are full of folks reacting against the reaction against the reaction against etc... etc...

They're caught up in the noise, and not the issue.

I try not to do that... and to smack it down when I can.

I take issue with the way issues surrounding homosexuality in public life are covered by the media, and often with the strategy and tactics employed by activists... but I believe in, and work for equal rights and equal protection for homosexuals (and before anyone gets offended by my use of a single word... you're an idiot... YOU are part of the problem... because you are offended stupidly by nothing, and not working towards a real solution).

Chris Kluwe, NFL Punter, wrote a post in support of the gay community in HuffPo yesterday... I normally don't link to them, but I think this is a rational and correct position, reasonably well put...

Really, my position and reasoning are simple...

I speak in support of equal treatment for homosexuals, not because I am one, but because it is the right thing to do.

Because I believe in equal rights and treatment for EVERYONE.

Whether I approve of them or not.

Further, I do so, because anything which can be used against those you disapprove of... can also be used against those you DO approve of...

...or YOU.

Rules, and laws, don't keep you safe

Alright, let's get down to it here...

Some people seem to believe that laws, rules, protocol, negotiation, consent etc... keep them safe.

I happen to think that's ridiculous self delusion.

Recently, gun control has been a big issue again. Just in the last week or so, rape and "rape culture" (a concept I have some major issues with, but that's for another time)... and questions about individual sexual agency, have been big in the news.

These discussions are for the most part centered around the idea that rules can make you safe. Consent, negotiation, protocol, rules, laws... Somehow, these things are going to keep you "safe".

They can't.

Rules don't make you safe; people who follow them, and respect them, and respect you, can HELP keep you safe... but no rule will keep you safe from people who don't.

Consent doesn't make you safe.

Negotiation doesn't make you safe.

Limits don't make you safe.

Laws don't make you safe.

Rules, and consent, and limits, and negotiation, will not prevent someone who wants to harm you, from harming you.

They will not prevent someone who wants to violate your limits, or your consent, from doing so.

They won't even stop someone who doesn't intend to do anything wrong, from screwing up... though they can help make it less likely, and less severe if it happens.

This is not to say that rules, and negotiation, and consent are not important; of course they are. But they are not magic.

They are not bars of steel. They have no physical force... only moral.

The thing which keeps good people from harming others, is not that harming others is against the rules... it's that they are good people.

The reason good people don't shoot you or rape you or steal from you, is not because it's illegal to do so; they don't do those things because they are wrong.

And you will never know, with total certainty, whether someone is a good person, or just pretending to be... Ever.

Even after decades of knowing them, even after living or working with them for years... something might change... or they might just have been good at hiding, or controlling, what they really were... and it might just show up some day.

People wrap themselves up in their security blanket of rules, as if it really kept them safe. And god help you if you disturb their delusion... You threaten their worldview, and their delusion of safety, and they must STOP YOU so they can "feel safe" again.

Safety, is an illusion.

Certainty, is an illusion.

Control, is an illusion.

One must understand and accept that... no matter how uncomfortable it is...

...And make the best decisions you can, to the best of your knowledge and ability...

...And MANAGE and mitigate your risks where you can...

...And weigh your risks, against your rewards...

...And then live with whatever happens...

Life is scary... but you can't let fear stop you from living it.

Treaties, Executive Orders, and the NRA

So... It seems that a lot of folks understand that the electoral math of the question makes any significant federal gun control in the near future unlikely.

Unfortunately, many still hold the idea that somehow, the Obama administration doesn't need congress to implement gun control; that they could do so by executive order (or that the ATF would do so without congressional action, at Obamas direction), or by signing the UN arms treaty; and that they would of course, do so at their earliest opportunity.

... I guess because Obama is the living earthly incarnation of satan or something?

Comics from the new and so-far very good web comic Failure to Fire. 

Finally, these same folks mostly seem to believe that the NRA is useless, or worse, actively conspiring with the evil one to take away our guns etc... etc...

All three of these ideas are entirely incorrect, as I have written here and on other blogs many times before (as this is a commonly held mistaken idea that has come up often).

Oh and an aside: anyone who is getting their information or opinions (on any subject whatsoever) from reading things like Alex Jones, Joseph Farrah, World Net Daily, or anything that Larry Pratt or the GOA put out... you should really just stop. They’re about 90% full of it, and the 10% that isn’t, is overblown.

Before we get get into the legalities of the first two ideas, let's talk about the politics for a second...

For those that do, please tell me... Why do you believe so strongly that, against all evidence, gun control is the hill the democratic party wants to die on?

Because, make no mistake, that's what it would be; even if the gun control was Obama and his administration alone, without the action of congress.

If Obama really cared that much about gun control, he would have done it already.

If you think that "He was just waiting for his second term. Now that he doesn't have to be re-elected, you'll see, he'll do all the things we've been saying he was going to since 2008"...

...You're an idiot.

Oh it's absolutely true that Obama will be more liberal/progressive/socialist etc... this term; and will get more aggressive about what he wants etc... (or perhaps more to the point, his far more radical appointees, who he can sacrifice if necessary, will do so).

It's this ridiculous argument that somehow Obama is special, specially evil etc... and that by virtue of this he has some magical ability to completely ignore the realities of law, the constitution, government, politics... physics... that makes these folks idiots.

Perhaps there are some rational arguments to be made that perhaps Obama want's gun control bad enough to commit politicial suicide, or to have his party do so; but I haven't seen them being made. Just this idiotic "because he's Obama, that's why" crap.

Yes, Obama want's more gun control (though not to the extent that some seem to think), but in order to do so, he needs to deal with CONGRESS.

Obama wants a lot more things, a lot more than he wants gun control; and he isn't going to waste any political capitol whatsoever on a subject he doesn't really care about that much.

Why do you think he put Joe Biden in charge of the "special comission"?

If he was serious, he'd be leading the charge himself. He'd be on television twice a day with specific ideas, and demonizing opponents etc...

If it works out, hey, great, he can claim credit. If it fails (and it will), he doesn't get any of the blame.

What Obama really wants is to raise taxes, cut the military, increase social spending etc... He's not stupid, he knows that he's going to need congress to do it.

What Obama absolutely does NOT want, is to see Obamacare repealed (for which he's going to need to have at least the senate stay under democratic control); and that trying to shove gun control down our throats would just about guarantee all the vulnerable Democratic senators would lose their seats.

There are maybe a dozen truly committed, truly anti-gun senators, and maybe two dozen in the house... plus another dozen completely safe seats in the senate and maybe 50 or 60 in the house. No-one else is going to put their seat on the line over an issue that they either don't care about all that much, or that they don't see any major advantage in supporting.

Now, on to the legal question

Neither treaties nor executive orders can violate the constitution (including the court decisions interpreting the constitution).

First, treaties:

Some seem to believe that a double evil combination will occur, where Obama signs a treaty that will unconstitutionally ban small arms; and by doing so while congress is in recess, he can immediately implement the provisions of the treaty to do so.

If you believe this, let me say to you, right now, without any hesitation...

YOU'RE A MORON

Or, at the very least, you have no business having an opinion on this subject, since you have no idea how our government works, or anything about law, or the constitution.

Treaties cannot be implemented without the approval of congress. They must be ratified by the senate, and their implementation must be enabled by house legislation (approving the funding for implementing the provisions of the treaty).

If a treaty is signed, but never ratified, the executive branch cannot implement any of its provisions.

However, that's entirely irrelevant because...

Treaties don't trump the constitution, nor do they override court decisions interpreting the constitution.

Ever, under any circumstances.

Treaties can supersede state and federal law, but not the constitution.



Any provision of any treaty that would do so, is automatically null and void.

Here are the relevant supreme court decisions:

Amaya v. Standard Oil:

"the treaty-making power does not extend ‘So far as to authorize what the constitution forbids.’"

Reid v. Covert (which is controlling in this question):

“No agreement with a foreign nation can confer power on Congress, or on any other branch of Government, which is free from the restraints of the Constitution. 

There is nothing new or unique about what we say here. This [Supreme] Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.” – Reid v. Covert, October 1956, 354 U.S. 1, at pg 17.

And the summary of the majority opinion:

“The United States is entirely [354 U.S. 1, 6] a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. 

(Quoting Article VI, Clause 2…)
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land … ” 

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. 

Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result.”

Treaties MAY NOT supersede the constitution; however, it is important to note that the constitution does not necessarily apply to actions outside our borders and not concerning our citizens (US v. Curtis Wright).

The ratification of a treaty is an act of congress, and no act of congress, or its effects, may supersede the constitution. Article II and Article VI are mostly clear, and what ambiguity there is has been clarified numerous times by the supreme court.

Treaties CAN AND DO trump previous federal laws, and both state laws and state constitutions; which was clarified in Gibbons v. Ogden.

...And on to the executive orders...

Now, there's some important language I quote above:

"The United States is entirely [354 U.S. 1, 6] a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution."

As this applies to acts of congress, it also applies to the executive branch and its agencies.

The substance and authority of the government exists solely in the constitution; therefore no agency of it may act outside of its authority.

Because great power and discretion are given to the president (and by extension the executive branch) in foreign affairs, executive orders can ignore the constitution outside the borders of the country and when acting on non-citizens; but they cannot ignore the constitution inside our borders, or when dealing with American citizens.

"It doesn't matter if its unconstitutional, Obama is evil and doesn't care, and he's going to do it anyway"

Yeah...

Rather than address this whole thing again on the politics side, I'll just refer you back to the politics section above, and say...

YOU'RE A MORON

Or at the least, without any knowledge or understanding, you're parroting misinformation spread by either morons, or by those who are deliberately manipulating you (most likely for fundraising purposes).

But since we're in the legal section, let's get back to that...

I can see that there are some arguments (other than the "but he's evil" one that is), where its plausible the Obama administration might decide to attempt some blatantly unconstitutional garbage...

But...

Why do you believe that if the Obama administration suddenly decides to do various clearly and obviously unconstitutional things, that they'll actually be allowed?

That they'll have funding to do so?

That they won't be stopped by the courts?

That there won't be a million lawsuits?

That the various officials of the executive branch will go along with it?

That the enforcement agents of the executive branch will implement and enforce these new unconstitutional measures?

Again, I'm not talking about the possibility that they may attempt minor and lesser executive action to restrict guns in some ways (more on that below); just the idea that somehow, because Obama is extra special magic evil; that he can all of a sudden magically seize or ban all our guns (or all our evil black guns etc...)

Ok... the NRA

Right now I'm rather irritated with the NRA.

Not because they are "evil, ineffective, compromising backstabbers", but because of this:

http://home.nra.org/pdf/Transcript_PDF.pdf

This statement... Much of it is reasonable, true, good, useful helpful; unfortunately, some is very much not:

And here's another dirty little truth that the media try their best to conceal: There exists in this country a callous, corrupt and corrupting shadow industry that sells, and sows, violence against its own people. 

Through vicious, violent video games with names like Bulletstorm, Grand Theft Auto, Mortal Kombat and Splatterhouse. And here’s one: it’s called Kindergarten Killers. It’s been online for 10 years. How come my research department could find it and all of yours either couldn’t or didn’t want anyone to know you had found it?

Then there’s the blood-soaked slasher films like "American Psycho" and "Natural Born Killers" that are aired like propaganda loops on "Splatterdays" and every day, and a thousand music videos that portray life as a joke and murder as a way of life. And then they have the nerve to call it "entertainment." 

But is that what it really is? Isn't fantasizing about killing people as a way to get your kicks really the filthiest form of pornography?

In a race to the bottom, media conglomerates compete with oneanother to shock, violate and offend every standard of civilized society by bringing an ever-more-toxic mix of reckless behavior and criminal cruelty into our homes — every minute of every day of
every month of every year. 

A child growing up in America witnesses 16,000 murders and 200,000
acts of violence by the time he or she reaches the ripe old age of 18. 

And throughout it all, too many in our national media … their corporate
owners … and their stockholders … act as silent enablers, if not
complicit co-conspirators. 

Rather than face their own moral failings, the media demonize lawful gun owners, amplify their cries for more laws and fill the national debate with misinformation and dishonest thinking that only delay meaningful action and all but guarantee that the next atrocity is only a news cycle away.

Ahhh yes... it's all the medias fault, especially that nasty TV and those awful video games.

Not only is this not helpful, in context it is both idiotic, and actively HARMFUL.

Not intentionally so of course; but in spectacular arrogance and ignorance.

I think the Penny Arcade response to this is appropriate here:

Lord knows, this isn't the first time the NRA was harmfully wrong (their entire history on the Heller case for example)... and it won't be the last.

However, that doesn't mean that I don't generally support the NRA.

I'm a life member, and I won't be resigning my membership over this stupidity (though I will be letting them know how I feel; and unlike most gamers, I know people inside NRA management... I would suggest everyone else who does as well, also make their displeasure known).

The NRA are by far the most effective organization for protecting our rights surrounding firearms and self defense (as I have written many times before, for example: http://anarchangel.blogspot.com/2010/06/political-captial-fundraising-mission.html)

The GOA has been promoting the idea for years that the NRA are the bad guy... but frankly, the only thing Larry Pratt believes in is Larry Pratt... And the only thing the GOA is effective at is spreading  unreasonable fear, and disinformation, aimed at increasing their fundraising.

Without the NRA our right to keep and bear arms would be fully abrogated by government... and would have been long ago.

Are they perfect? No. But they're the best we've got, and they do the best they can; and they are certainly NOT "part of the problem".

All that said... there's still some potential problems (of course)

I don't mean to suggest that there isn't any possible thing that the Obama administration could do on its own, or headaches, irritation, delays and difficult etc... they could cause.

For example, through executive orders and "administrative procedures", "administrative rules", "executive agency regulations" etc... the import of some firearms... possibly even all firearms, and ammunition... could be accomplished.

That is a foreign policy action, which has what could be interpreted, in principle, as having enabling legislation, depending on interpretation.

The administration couldn't ban the domestic manufacture, sale, or possession of any particular type of firearm; nor could they establish standards through the ATF or DOJ that would have the effect of doing so (there is specific legislation addressing this issue, and executive orders cannot counter that).

...BUT...

That doesn't mean they couldn't make life immensely more difficult; applying maximum scrutiny to every manufacturers, distributor, FFL etc...

Some have suggested they could simply order the NICS system shut down; but there's actually a default out for that. Even if there wasn't, this would clearly be an action intended to ban further sales of firearms, and the courts would be on that in a heartbeat (with the SAF, SAAMI, the NSSF the NRA, and every firearms manufacturer behind it).

...But they could make every transaction go through enough scrutiny to make the 3 day delay/proceed limit; backing the system up, and preventing sales entirely in some gun control states.

They could also go for some restrictions that may be allowed under existing law, and wouldn't be clearly unlawful or unconstitutional... The evil mind can think up lots of scenarios where some restriction could happen...

But again, the politics of the situation militate against it; except possibly in a minor way.


So, to appropriate the meme:

Keep Calm and Carry One... or More... Guns...