Farewell, Afghanistan
U.S. State Department advises all remaining Americans to leave Afghanistan "immediately," but also that they're on their own about doing it because the American government can't help them anymore.
The Most Serious of People
Coincident to the former President's titanic birthday bash (to which climate envoy John Kerry took his private jet), the Sturgis Motorcycle Rally is taking fire from the New York Times for the second year in a row. Iowahawk reports.
Olympic Nonsense
The gold medal karate match was won by the guy who got knocked out in it, because the actual winner was disqualified for having kicked too hard.
That's not how fighting works, guys. Even in We Are The World happy globalism land, if you got knocked out you're not the one who won the fight.
DOJ to Investigate Phoenix Police
Police in Phoenix had better be very circumspect in how they deal with any protests for a while.
In a news release, the department announced the “investigation will assess all types of use of force by PhxPD officers, including deadly force.
“The investigation will also seek to determine whether PhxPD engages in retaliatory activity against people for conduct protected by the First Amendment[.]"
Just a coincidence.
Intrigue in Saudi Arabia Threatens CIA Network
Here is an interesting story that has made the Swiss papers. (If you're curious about the URL, ".ch" is the country code for Switzerland, or "Confœderatio Helvetica" as they are properly known.)
The upshot is that the relatively recent shift in the Saudi royal family displaced a number of formerly powerful guys, some of whom had CIA ties as well as ties to Saudi intelligence. Now they're abroad, the Kingdom would like them back, and they're trying to avoid being sent home by filing lawsuits. These lawsuits entail revealing a lot they know about how the Agency has been operating in the Middle East -- much to the consternation of the United States government.
You probably won't read this story in the US press, which is slavishly devoted to the intelligence community. Nevertheless I have confirmed the details with Saudi contacts, who view the guy as a fugitive and are rather incensed that our government is meddling in his hoped-for extradition.
REH Was Right: Babylonian Edition
Ancient Babylon had an advanced form of mathematics we had thought was invented by Pythagoras.
The Eviction Moratorium as a Practical Test of West
West's book, which we have been examining, laid out three tests for justified revolution.
1) The ends of government are perverted, and,
2) Public liberty manifestly endangered, and,
3) All other means of redress are ineffectual.
Now the end of government is the defense of natural rights, and property is a natural right of the first water according to the Founders. The eviction moratorium not only forbids landlords from exercising their private property rights, it creates felony Federal crimes -- without legislation -- should they dare to do so. This is clearly perverse: the natural right is being not just refused, the natural right is being criminalized.
Public liberty is manifestly endangered by this. For one thing landlords are being bankrupted, causing them to lose the property that it was their natural right to possess and use. They are threatened with prison, a very pragmatic loss of liberty.
So what about condition three? The prior CDC moratorium was challenged in court, and ruled unconstitutional by the Sixth Circuit. Supreme Court Justice Kavanaugh affirmed this judgment in his dicta. (UPDATE: see Elise in the comments of the previous post for an alternative reading of what Kavanaugh did.) The Biden administration issued another CDC moratorium anyway, in spite of the courts, and admitting that the courts will probably reject this one too.
On Tuesday, President Biden said he's conferred with constitutional scholars, and the "bulk" of them say the most recent CDC order is "not likely to pass constitutional muster.""But," he added, "there are several key scholars who think that it may and it’s worth the effort."So Biden asked the CDC "to go back and consider other options that may be available to them.”“Whether that option will pass constitutional muster...I can’t tell you,” Biden said. “ I don’t know. There are a few scholars who say it will and others who say it’s not likely to.“But, at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are, in fact, behind in the rent and don’t have the money.”
So what happens when we see that the other means of redress are in fact ineffectual? West quotes the Essex Result (of 1778):
"the equivalent every man receives, as a consideration for the rights he has surrendered [in leaving the state of nature to form a social compact]... consists principally in the security of his person and property... [F]or if the equivalent is taken back, those natural rights which were parted with to purchase it return to the original proprietor." (137)
Note the specific requirement to defend person and property. Both are being taken by force: their property is effectively seized, their rights over it at least temporarily void, and their persons threatened with felony prison terms if they disobey this lawless order. They went to the courts, obtained relief, and were denied it by executive usurpation.
Prudence may caution landlords to try the courts again, in the hope that the second time around the government might agree to restore their rights and perhaps compensate them for damages. If this is a transient harm, as the Declaration suggests, it might be borne in patience.
Nevertheless please note that it is exactly the kind of offense that dissolves the social contract under our founding theory, restores the right to resume the state of nature, throw off the government, and constitute a new one. The powers that be do not seem to understand that they are playing with fire.
West's Founding VII: Natural Rights and Public Policy
This will be the last section on Part I of West's book, which is a description of the political theory of the Founders as he understands it. Part II, "The Moral Considerations of Freedom," follows after.
Both foreign and domestic policy can be derived in a few short strokes once the principle is accepted that government's sole purpose is to secure the natural rights of the citizenry. In West's formulation, the Declaration lays out foreign policy succinctly when it speaks of "one people [dissolving] the political bands which have connected them with another, and [assuming] among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them[.]" A people have a right to do that; but because it is only a 'free and equal' station to which they are entitled, their new government has no right to interfere with any other except in cases of self-defense. (141)
West does not like the term "isolationism," which he describes as pejorative. Nevertheless he approves both of Hamilton's and Jefferson's refusal to join the French Revolution's attempt to export its ideology, and their criticisms of France for shifting into an ideology-exporting mode. (145) Washington's discussion of 'entangling alliances' (especially referring to France) was repeated by Jefferson in his own day, in spite of his pro-French leanings. (ibid) West's basic idea is that the natural rights theory requires America to mind its own business, leaving other nations to do whatever they do -- be they tyrannies or principalities -- so long as they do not threaten the citizens of the United States and their natural rights.
On domestic policy, West points out that the modern conception of law enforcement that focuses on police is a great departure from the Founding approach. In early America, there were no police departments. Law enforcement was a whole of government approach, but much more limited in what exactly it tried to regulate. The legislature passed laws, the executive brought indictments, the judiciary tried the case and if guilt was proved assigned back to the executive the execution of sentences. Yet only a very few things were taken to be matters of law requiring government action (and this mostly at the state level). Murder, robbery, and the like required the government to step in and protect the natural rights of citizens to be free of such things. In more minor cases, the legislature passed laws giving citizens access to the courts to sue each other for damages related to natural rights like property or reputation. Most of life did not involve the government. (150-1)
Nevertheless, West adds, "limited government did not mean weak government. Instead, government was to be strong in its proper sphere and not involved at all anywhere else." (153)
West is sharply critical of the contemporary approach to using laws to regulate every aspect of life, to try to prevent injury in advance (as e.g. via building codes). This ends up being destructive to the natural right of liberty by constraining people's every action in the course of their employment, and requiring them to submit proofs of their obedience to the government just from day to day. The Founders rejected this approach, he says, and only allowed harms that have already occurred to be treated at law. This served as an important limit on government power. (154)
The most important aspect of the rule of law, and the one we are seeing lost today, is equality of the enforcement of the law. Just yesterday we were treated to the spectacle of a Democratic governor in the state of New York being found by the Attorney General to have violated numerous laws yet being charged with violating none of them. This is a double failure: on the one hand he is entitled to a presumption of innocence which she denied him in her press conference declaring his guilt; on the other, he will not face the hazard to liberty and property before the courts that his (alleged) violation of his victims rights entitled them to see him run. Likewise we see people who have attacked Federal buildings in Portland released without charges, night after night, while people involved in the Capitol incursion on 6 January held without bail for many months, while Congressional hearings declaring their guilt are held and new powers are granted to police to pursue such people. Likewise, too, we have seen how the DOJ handles cases against Clintons and their allies versus Trumps and theirs.
What is to confine the government here? West points out that the idea of separation of powers and federalism were meant to be functional. Natural law theory does not actually require either one, but having the powers separated was supposed to make violations of equality before the law less likely. Federalism was supposed to restrain both states and more importantly the Federal power by decreasing its sphere. Concentration of power makes abuse of power more likely. (160-1)
How about the Bill of Rights? Madison mocked what he called 'parchment protections,' and Hamilton according to West agreed. (161) However, West says, these guarantees were 'not totally ineffectual' for as long as the political theory of the Founders prevailed. (162) Only once it was lost among the elite as a guiding light did these statements of immunities and rights become things that the courts would not enforce, and that other officials would ignore at their pleasure.
Just yesterday, Joe Biden announced he was extending a program limiting the property rights of landlords in spite of the fact that the Supreme Court had said that was unconstitutional without further action from Congress; they are doing it anyway, because who cares what the Supreme Court says about the constitutional rights of people like landlords? The Court may come back and say it again, but until they get around to it power to limit the natural right to property is unconstrained; and it may just be violated again after a second ruling as easily as after a first. This shows both that the Founding political theory has been rejected by the government, but also that Madison and Hamilton were right that these 'parchment protections' do not by themselves secure any of our rights. They must be enforced by living men.
West's Founding VI: Right of Revolution
This is a section of fundamental importance that he treats very briefly. He shows through citations to the Declaration of Independence, New Hampshire's constitution and the preamble to New Jersey's 1776 constitution that the right to revolution is firmly established in the founding documents. (127-8) I'm going to quote the latter two because they are not as immediately familiar.
NH: "whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind." (128)
NJ: "allegiance and protection are, in the nature of things, reciprocal ties, each equally depending upon the other, and liable to be dissolved by the others being refused or withdrawn." (ibid)
West points out that this is not license for any minority to reject a government because it disapproves of the laws or loses a legitimate election (even a hotly contested and strange one like the election of 1860). The election of an opposing party does not justify revolution; but if that new government should violate its duty to protect and secure the natural rights of the people, it can.
The New Hampshire constitutional language is very nice. It establishes three conditions that all have to apply before the revolution can be justified.
1) The ends of government are perverted, and,
2) Public liberty manifestly endangered, and,
3) All other means of redress are ineffectual.
Our current case satisfies the first two of these, but we are still trying 'other means of redress,' as we ought to do. The ends of government are obviously perverted in the present case, where a government feels that public health might require mandatory vaccinations and lockdowns but also is allowing vast numbers of people with the very disease they fear to enter the United States illegally, and then is shipping them around the nation. The ends are perverted when we see (as mentioned yesterday) rioters who burn our cities let free by prosecutors, but those who tried to defend home and community persecuted and ruined under color of law. The ends are perverted when the national security state is turned into a partisan weapon, as the National Strategy to Counter Domestic Terrorism explicitly does (and in the absence of actual terrorism). The ends are perverted, too, when the executive and judicial branches collude to usurp the authority of state legislatures to determine election laws, and thus (demonstrably, and quite outside of any need to establish fraud in the election) decide elections outside of the legal and constitutional framework. The reader can easily add others.
The public liberty has been under increasing threat -- restrictions on religious free exercise; freedom of speech under constant attack by the unconstitutional union of corporate and government power to suppress rights the government is forbidden to suppress; a President who speaks of banning all semi-automatic weapons in direct violation of the Heller decision and therefore of the 2nd Amendment; a similar government/corporate conspiracy to vacate 4th Amendment privacy protections; etc. Again, the reader can easily add to this list.
We are saved from revolution in the moment by the third criterion, the pursuit of other means of redress. Audits to establish the facts about weaknesses in our election systems, state legislatures' reassertion of their right to make laws to protect both voting rights and election security, and court cases to challenge unconstitutional acts by the Federal and state governments are such means. These are peaceful and lawful, and it is right and proper to pursue them.
Note, however, that the New Hampshire language follows the Declaration in asserting that -- should all these conditions be satisfied -- revolution is not merely a right but a duty. "The people may, and of right ought," they said in New Hampshire; the Declaration, just after the discussion of prudential reasons to suffer ills as long as they may prove transient, adds that if the ills are not transient and sufferable the people have both the right and the duty.
West points out the Declaration's language on the need for caution and patience. "Prudence indeed will dictate that governments long established should not be changed for light and transient causes. And accordingly all experience has shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." (129) Prudence, the Aristotelian virtue, is the guide here; and West says that "[o]nly prudence can judge how far 'evils are sufferable' in the unique circumstances of a particular time and place.” (ibid)
Let us hope that Prudence guides us wisely; and that those in power find at least a shadow or reflection of that virtue, and have the wisdom not to prevent the success of our efforts to seek redress through peaceful means.
Painless
A fourth police officer who responded to the Capitol riot on 6 January has committed suicide. That's statistically unlikely, points out PJ Media.
The MPD has 3,800 officers, meaning that the force has had a suicide rate of just over 4 per 1,000 in just the last few months.
In 2019, the national suicide rate was about 0.14 per 1,000.
Even with 2020’s higher suicide rate (we couldn’t find final figures in time for today’s column), an MPD officer is about 25 times more likely to die by their own hand than a typical American.
The ratio skews even more towards the extreme when you consider that not nearly every one of the MPD’s 3,800 officers responded to the riot.
But who’s going to investigate? The same MPD that’s taken such poor care of its own officers? The FBI that may have enticed and entrapped protestors into becoming rioters?
It's easy to imagine the mafia agreeing to eliminate Jeffrey Epstein at the behest of powerful people who could provide useful favors, and also political protection from any investigation (the official finding was, of course, suicide). The cascade failure of prison security systems meant to prevent suicides also made it look much more like murder than like a suicide.
It's pretty hard to believe in a similar conspiracy to murder police officers to keep them from talking about what they saw on 6 January.
That leaves actual suicide as probable; but what then explains this extraordinary rate? Not PTSD, surely, given that there wasn't actually severe violence -- no machinegunning of the crowd, no massive death toll of any kind. It's just bad luck, I suppose; statistics only appear in broad enough segments, and for whatever set of reasons it just so happened that a statistically unlikely band of suicides occurred.
Definitely it is the sort of thing that gives additional heat to our national discourse, though. Yet we are not the main matter: we should pray for their souls and families.
The Foggy Dew Performed by Daoirí Farrell
Yesterday's "Parting Glass" introduce me to RTE - Raidió Teilifís Éireann, or Radio Television Ireland, which seems like their version of NPR. Here's another from them:
On Gaslighting
It’s probably unhelpful to frame this, as he does, as the backstory on vaccine hesitancy. It surely does play into that, but that is a small part of what he shows to be a much bigger story: Brexit, 2016’s election, “Russiagate,” Mueller, two impeachment’s, claims of mass racism...
Why doesn’t anyone have any trust anymore?
A Submarine Analogy
Wretchard on, among other things, lockdowns by analogy to movies about submarine hunting.
Arguments by analogy always break; the point is to decide if the breaking point of the analogy is before or after the useful lesson. This one seems like a stretch, traversing both the distance between infectious disease and warfare on the one hand, and the fiction/true-life distinction on the other. Wretchard is one of the smartest people out there, though, so I'm going to give him leeway to make his argument.
West's Founding V: Consent of the Governed
Moving along to chapter six of the first part, West reminds us that the Founding idea was that government was created by the consent of the governed, and is sustained only by the continuing consent of the governed. There are at least three kinds of consent:
1) The initial formation of the social contract;
2) Period elections of representatives, which provide the citizenry with the chance to alter the government's membership according to their will;
3) The right to withdraw consent, i.e., the right of revolution should the government fail to abide by the contract of (1) or the fair elections of (2). (Today we will only treat (1) and (2).) In the absence of a declared withdrawal of consent, consent is supposed to be sufficient.
In his discussion of (2), West approaches one of the criticisms leveled against the Declaration: that it is not a democratic document per se, but would allow for any form of government that would secure natural rights. West argues that this view is wrong, as the Declaration's complaints against the king include specific complaints that he refused to honor their democratically elected legislatures. He ignored their decrees, and he taxed without their consent, and this anti-democratic character of his rule is part and parcel of the violation of natural rights.
Why should this be so? When people move out of the state of nature by creating a government, they might consent to many potential forms. Locke -- West does not mention -- cites the story of Jeptha from the Book of Judges to give an early account of how this might work. (This is in Locke's First Treatise on Government, which almost no one reads; everyone reads the Second). As long as everyone consents to the bargain, and the new authority secures their rights, isn't the bargain fair?
West thinks that the Founders did not think so. He says that the idea of representation is so central to their concept of what just government looks like that it constitutes an entire second criterion to what the Founders thought just governance was about.
This is not a view I've held myself, but I can see where he is going with it. I have tended to say, "The sole legitimate function of government, according to the Declaration of Independence, is to secure the natural rights of the people." West's argument is that a just government actually has to do two things, according to the Declaration: it has to secure natural rights effectively and not subvert them, but it also has to ensure the people are able to fairly elect representatives who will provide the ongoing consent that the nation requires.
If so, this is definitely an outgrowth of the British tradition of which the Founders were part. The kings of England and the United Kingdom slowly lost their ability to rule without the consent of Parliament, especially in matters of taxation. The presence of representatives fairly elected, without whose consent the king could not act, is a feature the British kings unsuccessfully resisted. It is plausible that to a British national of the eighteenth century this concept of being due representation was as fundamental as the concept of natural rights. Without representatives, there is no guarantee that initial consent will continue; if stripped of honest representation, the people have every right to withdraw from the contract.
Note that this representation is legislative in character. The executive need not be elected; he might even be a king, or he might be elected indirectly as in our Constitutional order. The legislature is where our right to representation firmly resides, as it was the legislature that was supposed to be the first and most powerful branch. The First Amendment begins "Congress shall make no law..." because if Congress cannot make the law, the executive cannot enforce the law, and the courts cannot try cases regarding that law.
Our whole system has slipped out of gear on that issue. Since the New Deal's establishment of a vast Federal bureaucracy, the production of laws has become more a matter of executive rule-making than formal legislation. Courts have set themselves up to create interpretations of laws that are in effect new laws, thus legislating from the bench. The actual legislatures have far less power than designed, and the demon of being subject to legislation without representation has escaped.
Who Burned the Bonnehomme Richard?
The Navy has charged a sailor, but won’t release his name or apparent motive.
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