Archives for category: Law

Free speech is the unregulated speech of a free person. Free people become criminal when they engage in assault, which is what a threat on someone’s life is. And then those who threaten are open to prosecution.

Americans, of course, are too ill-educated to know what free speech is any more. Americans tend to think of “free speech” as all speech . . . minus those exceptions carved out somewhat arbitrarily by legislation and perhaps the common law (about which free speech absolutists shift in their seats when they acknowledge). But that is not the free speech idea. 

Yes: free speech is a term of art. It refers to (and is made explicable by) a larger concept, liberty. Which depends on the basic decency at the heart of civilization, indeed, humanity: reciprocity. I do not get to initiate force against you, you do not get to initiate force against me. And a threat is considered an assault, an act of aggression. An initiation of force.

The only violent threats tolerated in common law are threats to retaliate. One has a right to self defense. 

This is the great truth that libertarians emphasize, but almost no one else does: no one has a right to initiate force. That is honored in the breach, of course, in our government-ridden society, but more than acknowledged on the personal level in our law as applying to the person of the President. He is supposed to be constrained by our rights, listed somewhat crudely in the Bill of Rights, and he himself (like us) retains those common protections, plus an extra kicker bit of legislated law to back up his political station.

All those Anti-Trump assassination threats on Twitter? If the yobbos who made them continue, now they get to go to prison. And no rights would have been violated. Except Trump’s! But the prosecutors will be defending him.

Be assured, witless protestors and whiners, your days of license are soon to be over. Do you really want to test the system?


John Fiske booksWhat I dislike most about modern life are bad laws. Bad laws encourage disloyalty among citizens and criminality among police.

Bad legislation thus cuktivates the very “anarchy” that government is supposed to prevent.

And the most witless response to this is to demand loyalty to law . . . without context. As a principle in and of itself.

What must be done is to change the law.

If you folks keep voting for the same goobers over and over, you will merely increase the “anarchy” — de facto lawlessness, disorder — of modern tyranny. Which is to say, you play a part, in every vote for an old-timer incumbent, in the deepening corruption of soctal life.

Further, demanding that new law be enacted after every crisis is foolish on the face of it, perverse at base. Many laws cause more problems than they can possibly solve, and to not admit this is to fly in the face of human experience. If a candidate can think of no law or program he or she would try to repeal, that candidate is at least a fool, probably a dunce, perhaps even a knave.

Also: expect a candidate for office to be capable of subtlety. If there is no evidence of this in a candidate — if everything is claimed to be simple, no complexity admitted — then vote against that candidate.




There are two kinds of people in this world: those who divide people into two categories, and those who don’t. I’m in the latter category. . . .

Japing paradox aside, I do try to avoid dualistic constructions in philosophy and explanation. It doesn’t take long in political discourse, anyway, to see that many popular dualities, though conceived as exhaustive, are anything but. Human experience does not often easily fit neatly into two.

Indeed, in the work of Aristotle we encounter a vision of ethics that does not regard Right and Wrong as the foundational antagonism, but Deficiency and Excess as a basic duality, with a middle point between these  extremes serving as equilibrium, and constituting the virtue. Aristotle provides numerous examples in the Nicomachean Ethics. When I was a young man, I devised a schema of cardinal virtues, not dissimilar to Aristotle’s, but distinct. I distinguished three cardinal self-regarding virtues and three cardinal other-regarding virtues. Each virtue could  be conceived  as middle point between one or more sets of antagonisms. My schema looked like this:


The emotional realm I conceived in terms of the Will to Pleasure, and saw Temperance as a midway point between the lusts for pleasure and expressions of passions, on the one hand, and a deadly anhedonia and fearfulness, on the other. The person prone to anger was not temperate, but neither was the person incapable of strong feeling of any kind. The point of temperance was not to be evenly emoting at all times, but to be close enough to an emotionally stable point to be able to feel appropriately in any given situation.

Very Aristotelian, no? The other virtues I explained along similar lines, with wills-to contrasting with schemes of avoidance, fleeings-from. But in none of this discussion of a basic concept of ethics (and not the only important concept, either) did I give in to a simple dualism. Instead, I saw the experience of life in a three-fold division, and, within each division, each cardinal virtue understood as a mid-point between extremes (thus making another three-value logic) . . . and then divided into two, according to the center of regard, or direction  of concern or interest.

So when I began seriously to consider social life outside of a simple listing of virtues, but as issues to be argued over within the political realm, I became immediately suspicious of all the dualities I was presented with. As Chris Sciabarra explained so well in the opening of chapters of Total Freedom, what is needed to understand complex reality is more than a two-valued logic, the binary clicking of either-or. What is needed is a dialectical mindset, one that comprehends shifting perspective and a multiplication of entities. Shave with Occam’s Razor, sure; but you don’t grow hair that way.

Recently, James Gill and I have been making videos. He is in charge, and he aims to catch me in thought. Amidst my mumbles, I say some things that I regard as sensible. Here is the most popular of these videos, from a set reacting to Sarah Silverman’s defense of Socialist Bernie Sanders, which went viral on Facebook:

You see that I take on a statist sophism: that the basics of life be seen as “rights,” not “privileges.” And the listener tends to agree. Privilege is something only a few may have. Rights are universal. We want the basics to be universal, no?

Well, before we hastily cave to the statists’ rhetorical trap, look at it. Are these our only two options?

No. As I explained in the video, there is at least one missing third option, between the unearned advantage of privilege, and the coercible, obligatory focus of a right. What is it? It is the realm of contract, cooperation, and earnings.

I get most of what I want not by demanding each item as a right, or begging for each good as a privilege in someone else’s grants economy. Instead, I engage in trade. Or some other form of mutual cooperation. And, by agreement, I gain what I need. How? By offering and supplying something within my power and personal economy that at least one other person desires more than I desire it. This is the logic of exchange. It is a beautiful thing. When we come to terms, the results are beautiful and peaceful and harmonious.

We would surely want as much of life to fall under this realm of transaction, not under the realm of the coerced or the extorted or begged.

But socialists and other statists  continually elide any mention of this, when they push for some new realm of life to be sucked into the vortex of government, the maw of the State. They just put before us the simple binary, the duality Rights vs. Privileges.

And, in so doing, they lie.

It is a lie by omission of a great truth.

It is what you expect con artists to do, distracting our attention from the best option to get us to settle for a brummagem alternative.

Of course, most socialists are not deliberately lying. Like all religious zealots, what is lacking is a sense of piercing honesty, free inquiry, even curiosity. They have a simple vision of the world they are pushing — their utopia — and they will not let something complex like reality, or difficult, like truth, get in their way.

Thus it is with most dualisms. As I go through the usual lists of everyday dualities, we shall see how true this is.



I want to thank the “bigots” of Alabama for reacting to the whole “gay marriage” thing in the best possible way: getting the state out of the marriage business. It looks like it may happen.

Of course, marriages will still be created, folks (straight and gay and de facto asexual) will wed. And government will still be minimally involved. But NO LICENSES. Yes, no marriage licensing.

Generally, I hate licensing. A free people shouldn’t need a license to enter into a contract. It’s absurd. An affront to our rights.

So, what will happen, if the legislation passes and is signed into law? Well, “couples will get a ‘marriage contract form’ from the state, fill it out, sign it, declaring that they’re getting married of their own free will, get two witnesses to sign it, and turn it into the government for filing (and give them money). They can have whatever wedding ceremony they want or none at all.” Or so writes Scott Shackford at Reason.

But he also writes: “You’d think everybody would be happy with this outcome, but of course not. Alabama gay groups and the American Civil Liberties Union have to complain, even though they’re going to actually get everything they want.”

Yes, the Inclusion über alles folks are going to whine, but let them. That’s what they do best. Inclusion is the obsession of spoiled children and the weak everywhere (particularly, it seems, in colleges). Universal inclusion is totalitarian. I say get government out of our business as much as possible, and live and let live.

But if you are butt hurt about this, I’m sure you can find a salve.

Mine’s freedom. And the division of responsibility in a free society.

Extra points to those who “get” the [admittedly tenuous] rationale for the title and photo, above.

There exists an argument for high hurdles to make new laws.

The great Swedish economist Knut Wicksell thought that the only just rule for voting in a representative democracy should be by supermajority: 70 or 80 percent or more in favor . . . then only should a law pass.

If a new proposal cannot merit supermajority agreement, then it doesn’t deserve to be made a law. A proposal backed only by bare majority (or, even, effective plurality) support indicates that it helps its supporters at the expense of its detractors.

And is thus bad law.

Fine in theory. But in practice . . .

We don’t live in a world where the bulk of our laws have been passed that way, or one in which current legislatures work that way. Most laws that are passed in state and federal legislative houses possess only tiny support from the citizenry. And that only superficial. (Say, they like the promise but haven’t read the bill. Which is pretty much the same for the legislators themselves, in this decadent stage of our democracy manqué.)

Which means that while representatives could use a supermajority requirement, we the citizens shouldn’t be stuck with it, or any other high hurdles, for our initiative process. As long as bad laws remain on the books, and as long politicians go native and continually enact even worse laws, we sure could use ballot access and effective petitioning rights.

Just to bring some balance to the system. You know, a check in addition to the mostly discarded checks established in the U.S. Constitution.

So, at least a half-hurray for the ruling by U.S. District Judge Joseph F. Bataillon, who declared unconstitutional a Nebraska requirement that initiative petitions sign up 5 percent in each county for qualification.

The legislated requirement presented a somewhat obstructive hurdle for the people.

The judge ruled that it made rural votes worth more than city votes. Whatever the rationale, the outcome is good.

Nebraskans may contemplate putting tougher requirements on their democratic process . . . but only after the Unicameral is socked with even stricter ones.

The idea that unjust laws should be disobeyed is often considered an extreme notion, a radical position.

I regard it as the common-sense middle ground.

After all, the idea lies between the two real extremes:

1. That every law, no matter how unjust, must be obeyed; and

2. That no law, no matter how just, must be obeyed — that disobedience should be the rule.

Both these positions strike me as ludicrous. Note that the second is the nihilist position. The first is the conservative.

I have no personal interest in marijuana. Can’t smoke it; don’t want to eat it.

But the idea of persecuting people for their simple pleasures strikes me as obviously unjust, and bespeaks of a busy-bodyism that I loathe.

Besides, the first obvious failure of Progressivism was Prohibition. The attempt to destroy America’s alcohol culture was mostly a disaster, and cost many, many innocent lives, and helped criminalize whole classes of people, including but not limited to the reactively ruthless supplier sector. Prohibition is called the “Noble Experiment,” but I deny to it any nobility — just as I deny to communists their comfy moral cushion that their favored forms of forced cooperation is “a good idea at heart” or “in theory.” Just as “sharing” that entails theft is evil, so, too, is “protection” that entails persecution.

Jacob Sullum, in his recent Reason Hit&Run piece, notes that Sen. Jeff Merkley (D-Ore.) is the sole U.S. Senator to support marijuana decriminalization. My trouble with Merkley’s support is twofold:

1. He says that “both sides” of the debate have good arguments, while ultimately siding with decriminalization. In the context of Prohibition and the War on Drugs, I believe that this is utter nonsense. All my life I’ve heard the “case” against legal recreational drugs. It all rests on the goofy premise that, since one can ruin one’s life by over- or misuse of some drug, it is the business of “society” or “the state” to ruin the lives of dealers and users to prevent them from . . . ruining their lives. Yeah, right. It’s a brain-dead argument that thinks that coercion running counter to the normal division of responsibility (every person responsible first, for himself or herself) can end in more personal responsibility.

2. He’s so hesitant. Politicians are such cowards, unless they think they have a groundswell of tribal anger on their side. Have a little backbone!

Sullum ably addresses this problem, and Merkley’s singular status on the subject:

On the face of it, Merkley’s status as the Senate’s sole legalizer is puzzling, since recent polls indicate that somewhere between 48 percent (CBS News) and 58 percent (Gallup) of Americans think marijuana should be legal. You would think that more than 1 percent of the U.S. Senate would agree by now. The picture is similar in the House, where many members seem to agree with Roberts and Alexander that states should be free to legalize marijuana but very few are prepared to say it’s a good idea.

Legislators are much less shy about taking controversial positions on other contentious issues. When it comes to, say, abortion or gun control, there are plenty of senators and representatives on both sides of the debate, even though they are bound to alienate many voters by taking a stand. But on the subject of marijuana, politicians seem terrified of saying anything that could be portrayed as soft on drugs, even when dealing with reforms, such as legalizing medical use, that have had solid majority support for years. Presumably that’s because they think prohibitionists are more passionate than legalizers and therefore more likely to vote based on this issue. The only way to really test that hypothesis would be to follow Merkley’s lead and see what happens.

But he may be off in his conjecture. I think the reason is not one of prohibitionists’ passion, but of endemic statism. Both pro- and anti-abortion positions have a strong component of The State As Savior mentality, endemic, in their different ways, left and right in America. Gun control is a tribal issue for liberals, and one for conservative gun proponents as well. But marijuana decriminalization just seems too . . . individualistic.

And, at base, that’s neither conservative nor progressive. So it doesn’t fit in with politicians’ usual narrative voice and mythic stance. It’s basically a libertarian position, and that makes people who enter politics uncomfortable, because government these days assumes a great deal of power and a very small commitment to freedom.

In an addendum, Sullum takes up the case of Patty Murray, one of the two women senators from my state. She has expressed some vaguely “I am with my fellow state voters” sentiments about legal marijuana. But she’s more hesitant and cautious than her Oregon counterpart, she doesn’t count, yet, as a full supporter.

She just seems like another coward to m. And a progressive who distrusts freedom. But, even if compelled by the votes of her fellow Evergreen State citizenry, at least she’s less of a coward than most on Capitol Hill. Maybe there is hope for this airhead in tennis shoes yet.

Again, I have no personal interest in marijuana. But I support justice and the division of responsibility of a free society. So all drugs must be decriminalized. The war must stop.

Matt Kibbe on Hardball

Matt Kibbe on Hardball

The rapid advance of equal rights for gays regarding marriage kicks up more than one interesting problem.

To me it’s an issue of freedom of contract: gay marriage builds directly from the idea of equal rights to freedom.

To those on the left it’s about inclusion, about acceptance by society of minority values.

To many on the right, however, it’s an abomination that will destroy marriage as we know it.

I simply don’t buy this latter conservative thesis. Other people’s peculiar marriages (and I could be thinking of Bill and Hillary’s) wouldn’t affect mine, were I married. Why should gays marrying other gays make much difference for straights marrying other straights?

My “equal freedom” view (which is closer to the courts’ rulings than the “inclusion” obsession) suggests that accommodating polygamy is next. What follows from the “equal inclusion” view? More nasty boycotts and forced recognition, a totalitarian moralism with no possibility of dissent? (There has been quite a lot of progressive piling on recently: the Mozilla CEO ousted because he once gave money to an anti-gay marriage initiative is only the most obvious.)

In that very real context, my sympathies lean towards beleaguered conservatives. Why must they co-operate with practices that they fear, loathe, or despise? May they not express their values?

The solution? Get government out of the marriage business. All long-term consensual sexual unions should be “civil unions.”

Want to call yours a marriage? Fine.

Want a church ritual? A parental blessing? A lexical imprimatur?

No more of the government’s business than a fancy wedding or elopement.

Matt Kibbe, head man at FreedomWorks, recently surprised Chris Matthews on Hardball with  this notion: No state license needed to “get married.” Matthews’s incredulity was cut short by his guest reporter backing Kibbe up: “Lots of people, like Rand Paul, are advocating that now.”

It could be a way out of the Pandora’s Box that “equal inclusion” threatens to unleash.

Inequality is not a problem to be solved. It is a symptom to be diagnosed.

Diversity being the human norm, pure equality cannot be had — not amongst us Homo sapiens sapiens. Equality not being possible, inequality cannot, by itself, be considered a bad thing.

And yet there is something to equality. What is it? It is a term of art for the universalizibility of norms, for reciprocity at a fundamental level in society, and for the application of a standard fit for all. That standard, by term of art, is said to be “equally applied” to all. Basic rights, then are to be had (articulated for all and defended for all) equally. The timber of humanity being as twisted as it is, this will always remain a difficult task, putting equity into a system that defies it at every turn. But it is worth the attempt. Why? This is the one level of human interaction that equality gains purchase and does great good. The sole, single level.

Equity, then, being the application of a single standard, and equality understood only as a commitment to fundamental, basic rights that all must be said to “deserve,” is the whole of the concept of  equality in human affairs. All else is either gibberish or perversity.

Worrying about equality of some condition or other — aside from the equal application of a single, universal standard — is the sign of an immature mind.


New Hampshire’s House of Representatives just passed a law to legalize, regulate and tax marijuana.

The Senate has nixed such bills in the past, and the governor promises to veto it.

One can be forgiven for having mixed feelings about the whole thing. Some of my ambivalence comes from having no dog in the fight. I never use marijuana, and have no interest in starting now.

It is great, though, to see the states begin to reassert their power over the federal government.

After all, there is scant constitutional warrant for Congress to regulate or prohibit the cultivation, use or sale of any plant. When alcohol was prohibited, Congress felt the need to push through a constitutional amendment; when Congress gave up on the quixotic task remaking society through Prohibition, it repealed that amendment. Unfortunately, previous Progressive-Era anti-drug legislation had been enacted without much constitutional consideration, and was allowed because only a small portion of the population used the drug in question, heroin. It should be no surprise that much of the animus against the newly forbidden opiates was driven by racism. (The “Yellow Peril” nonsense especially. Early 20th century America was creepily and endemically racist.) Marijuana prohibition began after alcohol Prohibition ended, and much of the animus regarding the “weed” was also based on racism, this time against blacks and Mexicans.

And, of course, much of the anti-marijuana propaganda amounted to lies.

Now, billions of dollars and thousands of ruined lives later, increasing numbers of Americans are seeing the whole “war on drugs” idea as a botch job. Some even now view self-medication as a right, not a privilege.

A right “retained by the people”?

Well, most legalization arguments today rely more on the Tenth Amendment than the Ninth, frankly pushing local state power (“let’s tax and regulate!”) rather than our rights. And not every attempt to regulate will be as peaceful as simple decriminalization combined with allowed home cultivation.

Current New Hampshire pro-legalization advocates talk darkly of the dangers of illicit markets, especially their susceptibility to capture by organized crime.

But it’s always worth remembering: our governments routinely behave like criminals, too. (Just this week the feds raided Colorado medical marijuana operations, in a new “biggest bust ever,” alas.) Too much regulation is no better than too little, and maybe we should take our progress from marijuana prohibition through decriminalization to full legalization slowly.


A rights-based rather than powers-based advocacy for drug legalization would be firmer ground for reform than sub rosa state-mongering. The way some marijuana legalizers talk, with their incessant whine for “taxing and regulating” cannabis, I catch a whiff of something goofy in their agenda: are they hankering to get their fixes paid for by Obamacare?

If it is determined to be a “medical” drug “regulated” by government, and if we have a “right” to medicine (as says every prog-under-a-rock), then their notion follows . . . I prefer a right to self-medication. And an obligation to pay for your own darn drugs.