The case for sedition

I'm not often on the fence, but I can't bring much order to my thoughts about Cliven Bundy's Nevada standoff with the feds. He's an unsympathetic victim fighting an appalling machine. His cause fails to inspire me, and yet the following sentiment rings quite a bell:


 Kevin Williamson's piece inspires me with the view that "there is a great deal of real estate between complete submission and civil war, and that acts such as Mr. Bundy’s are not only bearable in a free republic but positively salubrious."  What's more, it can't be a good idea for the federal government to own 87% of Nevada.  At the same time, Bundy looks like one of those people who have lived next-door to a vacant lot for so long that they've come to think of it as their private park, and are aggrieved when a Walmart gets built on it—though they'd never dream of forming a consortium to save up money, buy it, and preserve it in its wild glory.  After I go through all that, I come back to a profound contempt for Harry Reid that leads me to cheer for anyone who puts a stick in his eye.

Still, while I'm cheering the sight of the feds backing down (however temporarily), it's hard to disagree with Charles C.W. Cooke:
[T]his is a nation with a “government of laws and not of men”—and not the other way around—and it seems to me that this principle should not be considered null and void because one of those men happens to have an agreeable tale, a photogenic complaint, and a romantic genealogical past. . . .  Are we really to believe that the government’s backing up its rules with force is unique to Obama? And why would we imagine that Bundy would have a chance if he doesn’t have a case? . . .  “Mr. Bundy’s stand should not be construed as a general template for civic action,” Williamson writes, thereby demonstrating the problem rather neatly:  When you change the government, you do not need to worry about setting a precedent; when you merely disobey it, you are setting yourself above a system that remains in force. . . .  When can one refuse to obey the law without expecting to bring the whole thing down?


Grim said...

The idea that he doesn't have a case is based in part on a set of assumptions about how the case is properly decided, which is one of the things he's contesting. His argument is that the Federal government is arrogating power, and then insisting the problem be resolved in Federal courts, which are very friendly to Federal assumptions (or arrogations) of power. He's happy to pay grazing fees, he says, but they should be paid to the county of the state he lives in.

In other words, it's a revolutionary claim. He is claiming not that the government is wrong in a given case, but that the system that adjudicates such questions is not legitimate because it has departed its federalist and representative foundations to become an enclosed bureaucracy protected by an unelected judiciary. The system will come down if enough people endorse that claim.

So the question to ask is, to what degree is he right about that? Is the ever-grasping bureaucracy adequately restrained by Federal courts? It manifestly ignores Congress at this point -- witness the attorney general -- so the mere fact of electing a representative isn't adequate. And it ignores the Constitution -- witness so many assumptions of powers not delegated anywhere at all, which the courts have come to rubber-stamp.

That's the issue, as I see it. He isn't dangerous as one guy with some cows. But he may have struck the fault line.

Anonymous said...

Madeline Murray O'Hair was not an attractive plaintiff, either.

There is no doubt the US government has the power to control the use of US land. However, the US government seems to become captive to a relatively few families, and has engaged in systematic overreaching, to the fiscal advantage of the families and friends of government officials. I think the unattractive Cliven Bundy has a point.


Tom said...

I don't think we can ever have a nation of laws, not men. Men pass laws, men decide which laws to enforce, men enforce them.

I understand the concept of a nation of laws, but I don't think it's possible. Until the robots take over, maybe.

E Hines said...

Both Williamson and Cooke are skipping a step in the chain (I'll mix metaphors if I wanna). We are--still--a nation of laws and not of men. However, the law is what We the People say it is, in our case through the mechanism of our elected representatives to a Congress that's one branch of our employee, the Federal government. That mechanism also has the happy effect of making our law(s) more likely to be of some durability and predictability instead of merely the whim of a moment.

Connected to this is the actuality of Bundy's behavior as it relates to civil disobedience. Bundy has lots of support in his action, not only from his immediate neighbors, but from his neighbors from nearby states and from some politicians of those nearby states. This is becoming, if it is not already, a civil disobedience movement.

There remains the step of accepting the punishment the comes from disobeying the law as it exists both as a matter of morality in not placing himself above the law, as he accuses the Federal government of having done, and as a matter of allowing that punishment to emphasize the absurdity of the law as it exists.

But that's a stage of this civil disobedience that, rather than having been skipped by Bundy, may still be playing itself out.

Secondarily, sedition? Only if our Revolution was that. From our compact's principles statement:

[W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. ... But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Nothing in there that limits the principle to the tossing of entire no longer consented governments. It's just as applicable to no longer consented single and singular aspects, and acts, of a government.

Eric Hines

Anonymous said...

Here's your chance, Grim, to put your strategy into action, if only in a thought experiment. Here's what one of the Bundy supporters had to say:
"It was Richard Mack, a former Arizona county sheriff and founder of the Constitutional Sheriffs, who had said Monday that the gathered self-described militia had considered using women as human shields if a gunfight with federal officials erupted. He elaborated on those comments Monday in an interview with radio host Ben Swann.

“It was a tactical plot that I was trying to get them to use,” Mack said in comments flagged by The Raw Story. “If they’re going to start killing people, I’m sorry, but to show the world how ruthless these people are, women needed to be the first ones shot.”

“I’m sorry, that sounds horrible,” he continued. “I would have put my own wife or daughters there, and I would have been screaming bloody murder to watch them die. I would gone next, I would have been the next one to be killed. I’m not afraid to die here. I’m willing to die here.”

Women and children first! Now, Grim, how about that strategy of targeting the families of terrorists, so that they can no longer be used as shields? Remember it?


Cass said...

Brava, Tex. I wanted to write about this but frankly I find the whole thing uninspiring and hard to get excited about.

He's happy to pay grazing fees, he says, but they should be paid to the county of the state he lives in.

If the land were owned by the state, I'd agree with him. But it's not. End of that line of argument. I can't take it seriously (unless of course we're just going to ignore property rights). If we're going there, we lose all pretense of actually believing in the basic rights granted by the Constitution.

Tex makes an excellent wrt the fedgov owning 87% of Nevada. That's a good question (and it has very little to do with the instant case, by the way).

The excessive response is also a great point - they have the time and money to go to the mat over cows and turtles??? SERIOUSLY?

The remedy to a refusal to pay fees to the rightful owner of the land is monetary, not helicopters and hijacked cows. Go after his money. Apparently that made way too much sense, though.

Grim said...

I do remember it, bc, although it wasn't a strategy of 'targeting' the families of terrorists, but of ignoring intentionally placed human shields. It's important not to take the step of using women or children as human shields for several reasons, but if you do, you're the one causing the harm.

Really, the only people who are wisely used as human shields are captured enemies.

Cass said...

OK, so I finally got the chance to read the linked essays.

Cooke nailed it. Thanks so much for the links, Tex.

Grim said...

"If the land were owned by the state, I'd agree with him. But it's not. End of that line of argument."

I don't think so. Bear in mind that land ownership is, in theory, always derived from the state -- our state, that is, claims to own all the land within itself. What it sells, when it sells something, is fee simple, which is an old feudal right. The state retains final ownership of all land. We've had that discussion at length.

So we have to be very careful in thinking about how the government exercises 'ownership' rights, because in theory it owns everything. It sounds like BLM obtained ownership of this land from people who had worked it for generations largely by asserting that it did own the land, and imposing fees and regulations people couldn't meet at the level of cattle BLM was willing to let them work. Nothing is really going on here except that there was a traditional way of life that worked just fine, until the government decided to insert itself and destroy it.

I think we have to look more closely at Federal claims of 'ownership' than we look at private claims. They are not rooted in the same concept of ownership at all, and they must be more carefully watched.

james said...

We have a few rules that limit what police can do, though rumor has it they aren't always enforced. Probably Texan99 can make a better case than I, but I think one could argue that the undoubted overkill BLM brought to the situation has poisoned the government's claim in analogy to the way evidence obtained by coercion taints a criminal case. ie BLM et al may not approach the land again in any way and must seek any redress elsewhere--unless Bundy et al do something else.

Probably won't work--if there's one thing the government takes seriously it is income, and Bundy didn't pay the fees. I wonder what the situation would have looked like if he'd written the checks to the state department of revenue.

douglas said...

Bundy paid the fees for years, then when they started putting the squeeze on harder because of the supposedly threatened (not endangered) tortises, he started paying the State instead - viewing the Feds as acting unjustly (but fully legally). That was a gesture designed to show his willingness to pay reasonable fees, but not to a government that would turn around and use those fees to pressure ranches out of existence. It turns out the tortises aren't really threatened (or the government wouldn't have shut down it's facility and prepare to euthenize several hundred of them), and if you want land to put up a solar energy facility (like some Chinese investors with some connection to Harry Reid's son) or perhaps a wind farm, sure, they'll let you do that- never mind the damage to endangered raptors and other birds- we'll just give those energy companies an official exception. Is that a just government? When the law is unjust- and I see no way that it can be considered just in this case, as in many others- is it morally and ethically wrong to act in civil disobedience? I'd suggest it ought to be our duty to do so, or at least we ought to give some respect to those willing to stand up to this unjust system of laws we're supposed to be respectful of. Having to jump through bureaucratic hoops daily, that can seemingly be brought up on almost a whim by the bureaucrats, I've about reached my limit of belief that I owe the current governments of my Country, State, County or City much obedience at all.

I think Cliven Bundy's problem is he's not presenting his case well, not that his case is unworthy of support.

Cass said...

Sorry, I don't feel the least sorry for Bundy. If his business can only survive if he is allowed to use someone else's property free of charge, he's a net taker. That's an entitlement mentality, writ large and I'm frankly astonished to see anyone taking that claim seriously.

If he can afford to pay the fee to the rightful owner of the land, he should shut up and pay it (and probably lobby like other business owners do to pressure the feds to get rid of some of that land).

It's amazing to me that we complain about people who feel entitled to free government assistance, or free government subsidies, or free government anything, or feel entitled to take what I own without giving me a single thing I value. And then we see a guy who apparently believes he is somehow entitled to graze his cattle on federal land free of charge because.... well, just because he thinks he's entitled.

Am I also entitled to do whatever I want on federal land? Am I entitled to pay my federal taxes to the People's Republic of Maryland? Am I entitled to expect the government to subsidize my private business?

I don't think so. I can't respect people like Bundy. That doesn't change the fact that the govt has *also* behaved badly here.

But that's a separate matter.

Every person or entity is responsible for their own actions, not the actions of other people and other people's misdeeds don't give us license to do wrong ourselves.

Remember: the Occupy folks made claims very similar to the ones some of you are making (we're free spirits - we own everything the govt has and have the right to disregard the law because we just plain feel like it).

He can refuse to obey the law, but I don't owe him my sympathy because the consequences of civil disobedience are something he doesn't care for.

If a business can't survive without govt. subsidies, most conservatives would say it needs to be allowed to fail. Inexplicably, we're now abandoning that position because we feel sorry for this guy?

Cass said...

Bear in mind that land ownership is, in theory, always derived from the state -- our state, that is, claims to own all the land within itself. What it sells, when it sells something, is fee simple, which is an old feudal right. The state retains final ownership of all land. We've had that discussion at length.

You may feel comfortable endorsing the abandonment of contractual agreements (or worse, the sale of land and consequent transfer of title to that land that entitles the new owner to do pretty much whatever he wants with that land whether or not YOU approve of that use). But if you're willing to dispose with these concepts, then you'd better be ready when the government comes for you and everything you own. You'll have no legitimate argument as to why that's not acceptable.

Oh, and by the way you are flat out wrong about Nevada being the real owner of that land. The UNITED STATES purchased the land Nevada, California, Utah, part of Arizona, and western Wyoming, Colorado, and New Mexico from Mexico (another country, not a state) for around 15 million bucks in 1848.

So it has ALWAYS been federal land (first owned by Mexico, then by the United States), bought and paid for by the federal government with federal ownership of the land acknowledged by State Constitutions at the time the state joined the union.

Where we need to be careful is in constructing elaborate theories that ignore history and the facts to justify whatever end we desire.

Grim said...

This isn't an elaborate theory, but I think it's an important distinction. You -- and many on the Right -- are making a logical category mistake by thinking of public property as being the same kind of thing as private property. They really are two different categories, and should be treated very differently by us.

The Right has a long tradition of defending private property rights, which are an important hedge against the state. But private property is distinct from public property in several ways:

1) It is limited -- as mentioned, you can't really 'own' land in the United States. You are subject to public seizure of your land, should the public choose to pay you what the public (i.e., the government) believes your land is worth to them. It's also subject to market forces, such that if you are sufficiently unproductive, you will lose the land to someone else. The market keeps things moving.

The government, by contrast, can own things in an unlimited way. If it 'buys' the land (more about that in the second point), the land is off limits to market forces.

2) Obtaining private property involves a real transaction. You have to trade something that lowers your net worth in exchange for the thing you want. If you do this wisely, of course, both can profit from the transaction, and therefore the net worth of each of you can eventually increase. The argument here is not that this is a zero-sum game, then, but that you have to transfer something valuable and limited in return for the purchase.

The government, by contrast, prints its own money. Thus, the government's "purchase" of land is really just a promise to debase the currency by printing more of it. That lowers the value of the thing being 'traded,' but more to the point, nothing is being traded. Something is being created out of nothing and 'exchanged.'

Thus, these concepts are at best an analogy. We should be very suspicious of property rights claims from the government, and we certainly shouldn't think it has anything like the same status as a private property owner.

Grim said...

Also, separately, it hasn't "ALWAYS" been Federal land. It used to be Indian land. The government obtained it through a process of creating and breaking contracts called treaties, creating territories and then recognizing them as states, and then debasing the currency to 'buy' the land from the new states.

What the Indians wanted was what this guy wants -- just to use the land to feed his family in the way they always had. What the government is doing to him is what it did to them.

Cass said...

Reportedly, most Indian tribes didn't believe in land ownership, so I suspect they'd be surprised to see you assert a right they don't believe even exists.

Obtaining private property involves a real transaction. You have to trade something that lowers your net worth in exchange for the thing you want.

Obtaining the Mexican cession also involved a real transaction, the payment of 15 million bucks, and a treaty formerly ratified by both Mexico and the US. After that payment, the US govt was 15 million bucks poorer but owned land worth... something.

Private r/e transactions generally do not lower net worth unless one of the parties made an extremely poor bargain. If you buy a house worth 400K and put 100K of your own money down, you have converted that 100K from a liquid to a less-liquid asset but it doesn't disappear. You could sell the house at any time and get it back. If you pay cash for the home, you trade 400K of your cash for a property worth 400K.

No change to your net worth.

I'm not seeing the logic in your arguments here, Grim. Whether property is owned by one person, a group of persons, or a state or national government composed of persons really has nothing to do with this case. It seems to me you are creating artificial distinctions so you can claim that the federal govt., despite having paid money with real value to Mexico, somehow doesn't own the land it purchased yet Nevada (which paid ZIP for this land) is the rightful owner!

This makes absolutely no sense to me. And the idea that any person who wants to feed his family should be able to do whatever he feels like with federal land is likewise problematic on so many grounds that I'm not even sure where to begin.

Grim said...

I'm sure. Meanwhile, what you are calling artificial distinctions strike me as fundamental categories. They are, of course, artificial. Property rights are an artifact. But the kind of artifact that the government makes for itself is not the same as the kind it makes for private actors. They shouldn't be treated as, or thought of as, the same. Government property claims are very suspicious, especially when they entail destroying long-established ways of life.

Elise said...

Megan McArdle comes down hard on Cass' side here and her analogy is an interesting one. She hypothesizes a child born in a housing project to a drug-addicted mother, subject his whole life to an arbitrary system weighted against him, and reminds us that if that child grows up to rob a Post Office, we consign him to the justice system.

I can see at least one point where her analogy fails but I still believe it's an interesting frame for the question of when a citizen is right to break the law. If the government doesn't give me what it's supposed to - land improvements, a decent education - am I entitled to take what I'm owed, or the equivalent?

Texan99 said...

It comes down to this: the whole problem results from the federal government owning practically all of Nevada. If that had meant that Nevada had been maintained as a pristine wildlife refuge for a couple of centuries, I'd be strongly tempted to approve. In fact, what it has meant is that the area was used to parcel out favors to ranchers, then for extensive atomic bomb tests, then as an excuse to jack people around in supposed defense of desert tortoises (apparently quite resistant to buffalo and radiation but not cattle), and most recently as a plum for friends and relatives of Harry Reid who want to build solar boondoggles with my tax dollars.

If Bundy were pushing to throw all these rascals out of office and divest the feds' land holdings so we could all return to private enterprise, I'd be all for him. Instead, he wants my support for a business model that depends almost entirely on the goodwill and discretion of federal bureaucrats. It's a business model that annoys me less than that of Harry Reid's cronies only because it's at least rooted in a pastoral tradition, like the commons.

I tend to view the entire drama in terms of whether it will get people to the polls to throw statists out of office. I'm not entirely convinced.

Elise said...

I tend to view the entire drama in terms of whether it will get people to the polls to throw statists out of office. I'm not entirely convinced.

Yeah, Bundy's claim is pretty much a demand to be a crony. That doesn't mean his stand can't be spun to serve another purpose. (Thursday is my incredibly cynical and utterly results-oriented day.)

How about an ad that shows the military/government presence at the Bundy ranch with a voiceover that says: This is what happens to a guy who doesn't pay his land use bill. Imagine what will happen to someone who doesn't pay his ObamaCare bill.

That's the tie-in: that government can use deadly force against people who don't obey the law. Which should, as Kevin Williamson points out, make us think long and hard about what laws we pass. Are we, in fact, willing to put a gun to our neighbor's head to make him pay his land use fees or buy health insurance? If not, we need to not pass - or repeal - the law. If so, this is the end game.

MikeD said...

I had someone insist that the ACA absolutely did NOT criminalize non-ownership of insurance and that no one would go to jail over not buying it. I patiently tried to explain that a fine is just the first step, and non-payment of that fine would bring charges, and that would ultimately lead to jail time, but he kept insisting that no one would go to jail because of the ACA, and therefore nothing had been criminalized. There are some that you cannot reach.

Texan99 said...

But if I recall correctly, the good guys did manage to squeak into a late amendment the provision that the IRS would be strictly limited to setting off the fine against any refund that might be owed to the taxpayer. I don't think the IRS is given any affirmative power to collect the fine otherwise. So there really shouldn't be any opportunity for the IRS to pursue criminal penalties--not that they'll let something silly like the letter of the law stop them.

MikeD said...

Yeah, I'd not depend upon the kindness of the IRS.

Elise said...

My understanding is that T99 is correct: the government can only collect the "you don't have insurance" fine/tax by withholding some or all of a refund. However, (a) I am talking spin and (b) things are going to get interesting if a significant number of uninsured people deliberately underpay their taxes in order to insure they are never, ever owed a refund.

Texan99 said...

I am never, ever owed a refund.

Ymar Sakar said...

Cooke is a fool.

Anyone that thinks like him is partially responsible for the 20 year old killed by the BLM's thugs. They might even be the infamous park rangers that also evicted various WWII vets back in the day.

But all of this is very funny, in a fashion.

Ymar Sakar said...

Most of the info links are aggregated there, given Loudon thinks in a similar way to me about the Left.

What foolish humans would like is to be able to sit on the fence, be not responsible for Bundy's fees or the BLM's killings.

There are no neutrals in this war, however.

Eric Blair said...

Police. State.

douglas said...

"Yeah, Bundy's claim is pretty much a demand to be a crony."

Really? He's made no political contributions to those who might be useful in that way (I presume), and has only sought (so far as I know) what the government offered in acts like the Stock Raising Homestead Act of 1916, and similar acts. How is that crony behavior? Where's the quid pro quo?

The only thing that makes Bundy's case difficult for many to back is that he defends himself, and I think we reflexively respond with suspicion to that- and probably rightly so. That doesn't always mean it's not a valid position, though.

douglas said...

I should add that it appears the reason for his (and other ranchers) being denied permits (perhaps not directly, but through the slow, finely crushing wheels of bureaucratic manipulation) would seem to be to aggregate control lands so that they could be dealt out as favors to those willing to pay their share of political contributions.

Texan99 said...

This strikes a chord. It reinforces my belief that it would be best to sell off federal lands if and when they become commercially valuable, in a transparent auction. It's asking for trouble to let bureaucrats control a resource that has started to be handed out here and there as a favor. Even if they don't expect bribes in return, there's an overwhelming sense that only docile citizens who "go along" will be in on the largesse. What bureaucrat, in this situation, will be able to resist constructing ever greater regulatory control schemes to implement their pet beliefs?