Tag Archive for: rule of law

The Feds vs. Reason.com Commenters by Ryan Radia

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Our friends over at the Reason Foundation, a venerable libertarian think tank and publisher of Reason magazine, recently received a grand jury subpoena from a federal prosecutor in New York, reports Ken White at Popehat.

The subpoena demands that Reason disclose “all identifying information” it has regarding six pseudonymous users who posted comments about the death and afterlife of a federal judge on Reason’s Hit & Run blog.

These comments came in response to a May 31 post by Nick Gillespie about the trial and sentencing of Ross Ulbricht, who was convicted in February of running an Internet-based narcotics and money laundering platform known as Silk Road.

In late May, Judge Katherine Forrest, who sits on the US District Court for the Southern District of New York, sentenced Ulbricht to life in prison. This sentence was met with mixed reactions, with many commentators criticizing Judge Forrest for handing down what they perceived as an exceedingly harsh sentence.

A few Reason users, some of whom may have followed Reason’s extensive coverage of the fascinating trial, apparently found Ulbricht’s sentence especially infuriating.

One commenter argued that “judges like these … should be taken out back and shot.” Another user, purporting to correct the preceding comment, wrote that “it’s judges like these that will be taken out back and shot.” A follow-up comment suggested the use of a “wood chipper,” so as not to “waste ammunition.” And a user expressed hope that “there is a special place in hell reserved for that horrible woman.”

Within hours, the office of Preet Bharara, the US Attorney for the Southern District of New York, sent Reason a subpoena for these commenters’ identifying information “in connection with an official criminal investigation of a suspected felony being conducted by a federal grand jury.”

This doesn’t mean a grand jury actually asked about the commenters; instead, in federal criminal investigations, it’s typically up to the US Attorney to decide when to issue a subpoena “on behalf” of a grand jury.

The subpoena demands from Reason information about the six users, including their email and Internet Protocol (IP) addresses — which, if disclosed, could enable the government to uncover the true identities of the commenters, perhaps after another round of subpoenas are sent to the users’ respective Internet Service Providers.

Popehat’s Ken White is quite troubled by the government’s decision to issue this subpoena. Ilya Somin, writing at The Volokh Conspiracy, also objects to the subpoena. So do the Cato Institute’s Tim Lynch and Techdirt’s Mike Masnick, among many others.

I too find it quite concerning. Even if this subpoena is valid under current law — more on that angle in a bit — the government made a serious mistake in seeking to force Reason to hand over information that could uncover the six commenters’ identities.

Unless the Department of Justice is investigating a credible threat to Judge Forrest with some plausible connection to the Reason comments at issue, this subpoena will serve only to chill hyperbolic — but nonetheless protected — political speech by anonymous Internet commenters.

And if Reason decides to stand up for its users’ rights, the resulting court battle will amount to a waste of federal law enforcement resources that could instead help bring actual criminals to justice, as Tim Lynch reminds us.

To be sure, I have no problem with the feds seeking to locate and prosecute people who actually threaten to commit murder — which, if transmitted in interstate commerce, is a federal crime under Title 18 USC. § 875.

Threatening to kill a federal judge is especially problematic; assassinations of federal judges do happen from time to time. As such, it’s only natural that law enforcement takes such threats seriously.

Yet, while the comments identified in the subpoena are undeniably vile, they’re also protected by the First Amendment, and rightly so. Hyperbolic political statements have a long history in the United States.

For instance, Ken Shultz notes that Martin Luther King, Jr., once said that “the hottest place in Hell is reserved for those who remain neutral in times of great moral conflict.” Sound familiar?

As for the comments about shooting a federal judge, consider the Vietnam War-era prosecution of Robert Watts for “knowingly and willfully threatening the President.”

At age eighteen, Watts said that if he were forced to join the military and “carry a rifle,” then the “first man I want to get in my sights is L.B.J.” The Supreme Court reversed his conviction, finding that Watts had merely “indulged” in a “kind of political hyperbole.” Id. at 708.

Although these statements, like the Reason comments quoted above, are understandably offensive to many listeners, causing offense alone is no basis for outlawing speech. To the contrary, “a function of free speech under our system of government is to invite dispute,” as the Supreme Court has noted. Indeed, speech can sometimes “best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

As for the hyperbolic comments posted on Reason about Judge Forrest, they are plainly not “true threats,” but mere “angry bluster,” as Ken White explains in detail.

The remarks, he notes, were not directed to the Judge, or reasonably calculated to reach her; instead, they appeared on a libertarian political blog notorious for its trash-talking commentariat. The comments lacked any specifics about a specific person’s plans to actually carry out an act of violence; instead, they merely expressed a general desire that a particular person be killed.

And while courts have held on occasion that hoping for someone’s death without evincing a desire to personally kill them can be a true threat, this requires some “causal connection” between the statement and the desired outcome. Again, the Reason comments don’t come close to meeting this threshold.

In short, even if the six Reason users are indicted on federal criminal charges, the First Amendment means the government is all but guaranteed to lose (barring the unlikely scenario the US Attorney’s office is sitting on some damning evidence it hasn’t disclosed).

If the commenters didn’t break the law, then, why can the government use its subpoena power to force Reason to hand over whatever personal information it’s collected about them? Because, as Ken White frets, the US Attorney’s power to issue grand jury subpoenas is so broad that, in most cases, they can be quashed only “when they are irrationally burdensome … or for an improper purpose.”

Moreover, a grand jury — which, again, is typically just another word for “federal prosecutor” — is afforded “wide latitude” in investigating potential crimes, and the “law presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate scope of its authority.”

And when a grand jury subpoena is “challenged on relevancy grounds the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.”

What about a grand jury subpoena that implicates First Amendment interests?

In theory, “where values of expression are potentially implicated,” a district court should act with “special sensitivity” to “prevent the chilling effect” of “prosecutorial abuse,” in the words of the Fourth Circuit.

In practice, however, courts are extremely reluctant to quash a federal grand jury subpoena on First Amendment grounds. For instance, the District Court for the District of Columbia held in 2011 that “merely issuing a subpoena to uncover the identity of the speaker so that the police can ascertain whether a threat is valid cannot be deemed a Constitutional violation.”

Where does all of this leave us? Reason could move to quash the subpoena — or at least petition the court to limit its scope to identifying information about the more threatening commenters — on the basis that, absent additional evidence that its commenters’ identities are related in any way to some criminally actionable threat, enforcing the subpoena would undermine Reason commenters’ constitutional interest in anonymity while generating information of “negligible value to the government.”

However, because Reason probably could not show the US Attorney is acting in bad faith, or that complying with the subpoena would be unduly burdensome, Reason’s chances of prevailing if it chooses to fight back are not good. That’s a problem for all of us.

This piece first appeared at CEI.org.


Ryan Radia

Ryan Radia is an Associate Director of Technology Studies at the Competitive Enterprise Institute. He focuses on adapting law and public policy to the unique challenges of the information age.

What Bastiat Had to Say about Police Abuse by Jeffrey A. Tucker

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When it comes to being employed by the government, membership has its privileges. How far do these privileges extend? It’s a question that is central to political philosophy. It is most poignantly addressed by one of my favorite pieces of writing, Frédéric Bastiat’s The Law (1850).

The same question is being debated on the streets in every U.S. city today. Videos of citizen abuse at the hands of the police are everywhere. It seems the cops have been empowered to do to us what we would never be allowed to do to each other. Some cases have made it to grand juries and trial juries. People are asking pointed questions regarding the relationship between the state and its citizens.

From the mainstream media to the courts, disagreement usually revolves around questions of the motivation, the character, and the behavior of police officers. Are they following the regulations? Abusing their authority? Motivated at some level by racism? Some would like to confront the related question: What level of citizen noncompliance justly prompts the police to use extreme force?

But there’s a question everyone wants to avoid here: Are the laws themselves just?

Many of the most famous beatings and killings at the hands of the police began with small infractions such a selling contraband cigarettes, evading criminal prosecution for the failure to pay child support, carrying knives, or small-time dealing of illegal substances. Then there are the many cases of asset forfeiture that never make it to YouTube, ongoing acts of plunder that aren’t flashy enough to inspire mass protests.

If the debate stays centered on police actions alone, we will never reach the core issue.

What is the law — and what should it be?

These are the bigger questions that are not yet part of public consciousness. Every law and regulation, no matter how small, is ultimately enforced by the threat of violence on the part of public authority. Laws are not “nudges”; they are mandates enforced by the legal use of coercion against person and property.

Bastiat tried to get people to think hard about what was happening and how the law had become an instrument of plunder and violence, rather than a protector of property and peace. If the law itself is not just, the result is social division and widespread discontent. The relationship between the rulers and the ruled becomes distorted, and a sense of systemic injustice pervades the culture. Bastiat observed this in horror in his time, and it’s a good description of our own:

The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense.

Further, and most poignantly in our time: “Sometimes the law places the whole apparatus of judges, police, prisons, and gendarmes at the service of the plunderers, and treats the victim — when he defends himself — as a criminal.”

Indeed.

Whether this happens at a traffic stop, at the arbitrary hands of an angry cop, or due to a tax or regulation passed by a legislature doesn’t change the nature of what is happening.

Bastiat’s essay asks fundamental questions that most people go through life never having thought about. The problem is that most people accept the law as a given, a fundamental fact of life.

As a member of society, you obey or face the consequences. It is not safe to question why. This is because the enforcement arm of the law is the state, that peculiar agency with a unique power to use legal force against life and property. The state says what the law is — however this decision was made — and that settles it.

Bastiat could not accept this. He wanted to know what the law is, apart from what the state says it is. He saw that the purpose of law is, most fundamentally, to protect private property and life against invasion, or at least to ensure that justice is done in cases in which such invasions do take place.

This is hardly a unique idea; it is a summary of what philosophers, jurists, and theologians have thought in most times and places. It’s what most of us think, intuitively, that the law should be about. What makes Bastiat different is that he takes that next step, the one that opens the reader’s eyes as nothing else does. He subjects the state itself to the test of whether it complies with that idea of law.

He takes notice, even from the first paragraph, of the corruption that ensues when the state turns out to be a lawbreaker in the name of law keeping: the state does the very thing that law is supposed to prevent. Instead of protecting private property, it invades it. Instead of protecting life, it destroys it. Instead of guarding liberty, it violates it. And as the state advances and grows, it does these things ever more, until it threatens the well-being of society.

Even more tellingly, Bastiat observes that when you subject the state to the same standards that the law uses to judge relations between individuals, the state fails. He concludes that when this is the case, the law has been perverted in the hands of the governing elites. It is employed to do the very thing that the law is designed to prevent. The enforcer turns out to be the main violator of its own standards.

The law, wrote Bastiat, is supposed to protect property and person from arbitrary attack. When the law becomes a tool for providing legal cover for such attacks, as it has from Bastiat’s time to our own, its whole purpose has been turned upside down and inside out.

What Bastiat was seeking, as the embodiment of justice, was a consistent ethic of public life. The law should be the same for everyone. We should all obey the same rules. Neither the state nor any of its functionaries can be exempt from the rules they purport to enforce.

We cannot permit the state to judge itself by a different standard. Indeed, when Marilyn Mosby, Maryland’s state attorney, announced that the she was prosecuting the cops who beat and killed Freddie Gray, she struck a chord that resonated far and wide. She might be a left-liberal Democrat, and she might not share libertarian values across the board, but when she said, “no one is above the law,” she was echoing Bastiat and the entire liberal tradition.

What are the social consequences of having a different sets of laws, one for state agents and one for everyone else? Bastiat believed that the result is lawlessness:

As long as it is admitted that the law may be diverted from its true purpose — that it may violate property instead of protecting it — then everyone will want to participate in making the law, either to protect himself against plunder or to use it for plunder.

In this case, the law becomes a perpetual source of hatred and discord. It even “tends to destroy society itself.” Whether this destruction takes place in the controlled environment of a legislature, the routine quietude of the bureaucracy, or on the streets through looting does not change the essentials of what is happening.

What does this say about abuse at the hands of the police? According to Bastiat’s standard, the law should regard such abuse as the violation of another’s rights. Period.

The passion, the fire, the relentless logic of Bastiat’s monograph have the power to shake up any reader. Nothing is the same after you read The Law. That is why this essay is rightly famous. It is capable of shaking up whole systems of government and whole societies — a beautiful illustration of the pen’s power.

It is a habit of every generation to underestimate the importance and power of ideas. Yet the whole world that we live in is built by them. Nothing outside pure nature exists in this world that did not begin as an idea held by human beings. That’s why an essay like Bastiat’s is so powerful and important. It helps you see the injustices that surround us, which we are otherwise inclined to ignore. And it helps provide the response to them.

Seeing and explaining are the first steps to changing.


Jeffrey A. Tucker

Jeffrey Tucker is Director of Digital Development at FEE, CLO of the startup Liberty.me, and editor at Laissez Faire Books. Author of five books, he speaks at FEE summer seminars and other events. His latest book is Bit by Bit: How P2P Is Freeing the World.

Kelo: Politicians Stole Her Home for Private Developers and Started a Legal War by Ilya Somin

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Most of my new book, The Grasping Hand, focuses on the broader legal and political issues raised by the Supreme Court’s ruling in Kelo v. City of New London.

As explained in the first post in this series, I wrote the book primarily to address these big-picture issues.

But the story of how such a momentous case arose from unlikely origins is interesting in its own right.

The case originated with a development project in the Fort Trumbull area of New London, a small city in Connecticut. The neighborhood had fallen on difficult economic times in the 1990s after the closure of a naval research facility.

City officials and others hoped to revitalize it. The administration of Republican Governor John Rowland hoped to expand his political base by promoting development in New London; but to avoid having to work directly through the heavily Democratic city government, they helped resuscitate the long-moribund New London Development Corporation, a private nonprofit organization established to aid the city with development planning.

The NLDC produced a development plan that would revitalize Fort Trumbull by building housing, office space, and other facilities that would support a new headquarters that Pfizer, Inc. – a major pharmaceutical firm – had agreed to build nearby.

The development plan produced by the NLDC was in large part based on Pfizer’s requirements, which NLDC leaders (some of whom had close ties to Pfizer) were eager to meet. Pfizer would not be the new owner of the redeveloped land, but did expect to benefit from it.

I believe that NLDC leaders genuinely thought the plan would serve the public interest, as did the city and state officials who supported it. But it is also true, as one of those who worked on the plan put it, that Pfizer was the “10,000-pound gorilla” behind the project.

In order to implement the plan, the NLDC sought to acquire land belonging to some ninety different Fort Trumbull property owners.

In 2000, the New London city council authorized the NLDC to use eminent domain to condemn the land of those who refused to sell. Some defenders of the takings emphasize that all but seven of the owners sold “voluntarily.”

But as New London’s counsel Wesley Horton noted in oral argument before the Supreme Court, many did so because there was “always in the background the possibility of being able to condemn… that obviously facilitates a lot of voluntary sales.”

Moreover, owners who were reluctant to sell were subjected to considerable harassment, such as late night phone calls, dumping of waste on their property, and locking out tenants during cold winter weather.

Seven individuals and families, who between them owned fifteen residential properties, refused to sell despite the pressure. One was Susette Kelo, who wanted to hold on to her “little pink house” near the waterfront.

Some of the other families involved had deep roots in the community and did not want to be forced out. Wilhelmina Dery, who was in her eighties, had lived in the same house her whole life, and wished to continue living there during the time left to her.

The Cristofaro family were also strongly attached to their property, which they had purchased in the 1970s after their previous home had been condemned as part of an urban renewal project.

Susette Kelo’s famous “little pink house” in 2004 (photo by Isaac Reese)The resisting property owners tried to use the political process to prevent the takings. They managed to attract the support of a wide range of people in the community, including many on the political left who believed that it was wrong to forcibly expel people from their homes in order to promote commercial development.

But the Coalition to Save Fort Trumbull organized by the resisters and their allies had little, if any, hope of prevailing against the vastly more powerful forces arrayed against them.

The owners also tried to hire lawyers to fight the taking in court. But the lawyers they approached told them that there was little chance of success, and that – in any event – they could not afford the necessary prolonged legal battle.

The owners would almost certainly have had to capitulate, if not for the intervention of the Institute for Justice, a libertarian public interest law firm. IJ had long been interested in promoting stronger judicial enforcement of “public use” limitations on takings, and one of the members of the Coalition reached out for help.

As IJ lawyer Scott Bullock put it, the Fort Trumbull situation was an “ideal public interest case” for the Institute. Legally, the case was a good one because the city did not claim that the property in question was “blighted” or otherwise causing harm, thereby making it harder to prove that condemnation would genuinely benefit the public.

The case also featured sympathetic plaintiffs who were determined to fight for their rights. That made it likely that it would play well in the court of public opinion, and that it would not be settled before it could lead to a precedent-setting decision.

IJ hoped to achieve a ruling holding that takings that transfer property from one private individual to another for “economic development” do not serve a genuine “public use” and are therefore unconstitutional.

Thanks to IJ’s pro bono legal representation, the case went to trial. In 2002, a Connecticut trial court invalidated the condemnation of 11 of the 15 properties because the city and the NLDC did not have a clear enough plan of what they intended to do with the land.

Both sides appealed to the Connecticut Supreme Court, which upheld all fifteen takings in a close 4-3 decision. The majority ruled that almost any public benefit counts as a “public use” under the state and federal constitutions, and that courts must generally defer to government planners.

In a dissenting opinion, Justice Peter Zarella argued that “the constitutionality of condemnations undertaken for the purpose of private economic development depends not only on the professed goals of the development plan, but also on the prospect of their achievement.”

Presciently, he warned, “The record contains scant evidence to suggest that the predicted public benefit will be realized with any reasonable certainty,” and that it was “impossible to determine whether future development of the area… will even benefit the public at all.”

At this point, most legal commentators (myself included) believed that the case was almost certainly over. Few thought that the federal Supreme Court was going to take a public use case.

Supreme Court precedent dating back to 1954 held that virtually any possible public benefit counts as a public use, and the Court had unanimously reaffirmed that view in 1984. Most experts thought that the debate over the meaning of “public use” had been definitively settled.

But Scott Bullock and Dana Berliner – the IJ lawyers who represented the property owners – thought the conventional wisdom was wrong. And they were vindicated when the Supreme Court unexpectedly agreed to take the case. At that point, much new national media attention was focused on the New London condemnations.

Property law experts were well aware that longstanding Supreme Court precedent permitted the government to take property for almost any reason. But very few members of the general public knew that. Many ordinary Americans were shocked to learn a city could condemn homes and small businesses in order to promote private development – a reality they were unaware of until the publicity surrounding Kelo drove it home to them.

The Supreme Court upheld the takings in a 5-4 ruling. But the resulting controversy created a major political backlash and shattered the seeming consensus in favor of a broad approach to public use.

As for the City of New London, Justice Zarella and other skeptics turned out to be right. The NLDC’s flawed development plan fell through, as did a number of later efforts. Richard Palmer, one of the state supreme court justices who voted with the majority, later apologized to Susette Kelo, telling her he “would have voted differently” had he known what would happen.

Today, the condemned land still lies empty, though city officials now plan to build a memorial park honoring the victims of eminent domain, on the former site of Susette Kelo’s house.

The former site of Susette Kelo’s house – May 2014 (photo by Ilya Somin)

In the meantime, feral cats have been using the property. So far, at least, they have been the main local beneficiaries of the takings.

Feral cat near the former site of the Kelo house – March 2011 (photo by Jackson Kuhl)

(I should point out that the events in New London leading up to the Supreme Court case are the subject of an excellent earlier book by journalist Jeff Benedict. My book primarily focuses on the broader legal and policy issues raised by the Kelo case, which Benedict touched on only briefly. But I also cover the origins of the case in Chapter 1, and post-decision developments in New London in the conclusion.)

This post first appeared on the Volokh Conspiracy, where Ilya Somin is a frequent blogger.

You can buy The Grasping Hand on Amazon here.


Ilya Somin

Ilya Somin is Professor of Law at George Mason University School of Law. He blogs at the Volokh Conspiracy.

Is Mad Max the End of Freedom? by Jeffrey A. Tucker

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What a ride is the new Mad Max!

The desert scenes — filmed in Namibia and Australia — remind me of Lawrence of Arabia. So peaceful. At first. Then, in the first scene, Mad Max, who is forced to live off the land, eats a two-headed lizard whole and raw. Blech. But actually this sets up the whole atmosphere of extreme privation that dominates the film. The absence of material provision leads everyone to act in egregious ways.

Then the action starts. Huge and crazy looking cars, motorcycles, and trucks guzzling massive quantities of gas (who makes it all?), racing around the desert blowing each other up.

There are punks, zombied-eyed workers, disgustingly dirty workers and peasants, haggard women warriors, a gross-me-out dictator, a strange economy that seems to live off blood transfusions and mother’s milk, a tireless heavy-metal band with a flame-throwing guitar player riding around on a war truck, and many more wacky things.

The whole film is loud, eye-popping, jaw-dropping, crazy, insane, high-anxiety fun from first to last. It leaves you breathless. Then it turns out to be substantive in a philosophical sense, and even inspires with a message of triumph over despotism.

And yet, I was also reminded of my first experience watching the old Mad Maxin my youth. I had recently become convinced of the case for the free society. I had daringly embraced the conviction that it is not the state that holds society together and builds civilization.

Society itself — Bastiat and others convinced me — contains within it the capacity for its own ordering. Markets, property rights, and even law are emergent institutions that allow the creation of the good society. Accepting that meant departing from both right and left.

Somehow, and I’m not entirely sure why, the first viewing of the original film shook my convictions. Is this what freedom looks like? Yikes. I walked away from the film somehow fearing that I had embraced a political vision that would lead straight to the grim, chaotic — let’s use the word anarchic — world of Mad Max. There are no rules, only a vague semblance of morality, and social norms are made up on the spot.

Truly, is this what libertarianism is all about? It’s just an impulse, and one that actually makes no sense, though I can imagine many viewers would come away with that same fear. If this is the way the world looks without powerful central control, no thanks.

But think about it. The setting is usually described as “post-apocalyptic.”

Who destroyed the world (a question one character in the new version asks)? We don’t know for sure, but it’s a good bet that it is the same crew that, in the 20th century, blew up whole cities, dropped bombs on millions of innocents, slaughtered whole peoples in famines, gulags, work camps, death marches, and gas chambers.

I’m speaking of the state. That’s the only institution with means and the will to destroy civilization. So if I had to guess the answer to the question, I would guess: politicians and bureaucrats destroyed the world.

Plus, there is in fact a state, or at least a ruling class with power, in Mad Max.

His name is Immortan Joe. He wears a weird mask and has some strange breathing contraption on the back of his neck. He both controls all resources (including the most precious resource of all, water) and heads a religious cult in which all his followers think that perfect obedience will lead to eternal salvation. He commands them completely and totally.

He is also utterly lawless — any means to the end of keeping his power. That’s his one and only concern. He also happens to inhabit the only green spot in the whole region, monopolizing and devouring the earth’s most valuable resources.

Sounds like a state to me.

As for the rest of society, true, there is no law and nothing like stable property rights. Morality is pretty much out of the question. Even if you believe in right and wrong, the material privation is so intense that acting on moral postulates is out of the question. This is not society. This is society destroyed, a society reset, all norms and institutions for human cooperation erased.

The viewer can’t help asking the question: What would I do if I were in the situation?

Well, I would have to learn not to be squeamish about eating two-headed lizards raw. I would have to learn to be a good driver. I would have to learn how to stab and shoot to kill. I would have to get used to the sight of blood.

But most of all, if I wanted to play some part in improving this ghastly world, I would have to contribute my efforts to unseating the grotesque and loathsome Immortan Joe.

There are plenty of challenges in the Mad Max world. Extreme conditions of scarcity is just the most conspicuous. To solve that problem requires property rights, markets, capital accumulation, and long-term investment. These are great ideas. But they can’t be realized so long as there are thugs extant that will rob you of property the instant it starts to create wealth.

In other words, the problem in the Mad Max world is not too much freedom. It is that freedom is never given a chance to work due to the presence of tyranny. This is the source of the disorder, chaos, non-stop violence, and overall poverty and insecurity.

Until the tyranny is overthrown — until the head of the ruling class is dislodged from perch of power — there can be no hope whatever. In the end, the effort to unseat this jerk is led by women who escaped his clutches to live far outside the capital. They long for the freedom to put together something like a life.

To see that requires you look a bit below the surface.

The film does, in fact, reveal something important about sex/gender and politics: namely, that a consciousness of universal human rights and dignity is the product of civilization. A might-makes-right society of poverty and power will be highly exploitative of women. This much we know from history, and the film gets this right.

Finally, for an economist, there is a clever insight here concerning the ancient problem of the diamond/water paradox: Why is water, which is more necessary for life, cheaper than diamonds? Mad Max reveals the answer: It all comes down to marginal value and relative scarcities. In this society, people will do anything for a drop to drink. Or eat.

Thank you, thank you, freedom and trade, for rescuing us all from the world of Mad Max and Immortan Joe.

Jeffrey A. Tucker

Jeffrey Tucker is Director of Digital Development at FEE, CLO of the startup Liberty.me, and editor at Laissez Faire Books. Author of five books, he speaks at FEE summer seminars and other events. His latest book is Bit by Bit: How P2P Is Freeing the World.

Do You Have the Civil Disobedience App?

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You might be downloading tomorrow’s law by MAX BORDERS…

If the injustice is part of the necessary friction of the machine of government, let it go, let it go: perchance it will wear smooth — certainly the machine will wear out… but if it is of such a nature that it requires you to be the agent of injustice to another, then I say, break the law. Let your life be a counter-friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn. 

— Henry David Thoreau

In the peer-to-peer revolution, the most important elections will happen outside the voting booth. And the most important laws won’t be written by lawmakers.

Consider this: The first time you hopped into a Lyft or an Uber, there was probably, at the very least, a legal gray area associated with that trip. And yet, in your bones, didn’t you think that what you were doing was just, even if it wasn’t yet clearly legal?

If you felt that way, I suspect you weren’t alone.

Today, ridesharing apps are operating in most major cities around the country. And municipalities are having to play catch-up because the people have built massive constituencies around these new services.

This is just one example of what Princeton political scientist James C. Scott calls “Irish democracy,” where people simply stop paying attention to some rule (or ruler) because it has outlived its usefulness.

One need not have an actual conspiracy to achieve the practical effects of a conspiracy. More regimes have been brought, piecemeal, to their knees by what was once called “Irish Democracy,” the silent, dogged resistance, withdrawal, and truculence of millions of ordinary people, than by revolutionary vanguards or rioting mobs.

Now, let’s be clear: the right rules are good things. Laws are like our social operating system, and we need them. But we don’t need all of them, much less all of them to stick around forever. And like our operating systems, our laws need updating. Shouldn’t legal updates happen not by waiting around on politicians but in real time?

“But Max,” you might be thinking. “What about the rule of law? You have to change the law through legitimate processes.”

And that’s not unreasonable. After all, we don’t want mob rule, and we don’t want just anyone to be able to change the law willy-nilly — especially those laws that cover our basic rights and freedoms. There is an important distinction, however, between justice and law, one that’s never easy to unpack. But Henry David Thoreau said it well, when he wrote,

Unjust laws exist; shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once? Men generally, under such a government as this, think that they ought to wait until they have persuaded the majority to alter them. They think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than the evil. It makes it worse. Why is it not more apt to anticipate and provide for reform? Why does it not cherish its wise minority? Why does it cry and resist before it is hurt? Why does it not encourage its citizens to be on the alert to point out its faults, and do better than it would have them?

Today’s peer-to-peer civil disobedience is tomorrow’s emergent law.

In other words, the way the best law has always come about is not through a few wise rulers getting together and writing up statutes; rather, it emerges among people interacting with each other and wanting to avoid conflict. When peaceful people are engaging in peaceful activity, they want to keep it that way. And when people find new and creative ways to interact peacefully, old laws can be obstructions.

So as we engage in peer-to-peer civil disobedience, we are making choices that are leading to the emergence of new law, however slowly and clumsily it follows on. This is a beautiful process, because it requires not the permission of rulers, but rather the assent of peer communities. It is rather like democracy on steroids, except we don’t have to send our prayers up through the voting booth in November.

Legal theorist Bruce Benson calls this future law the “Law Merchant.” He describes matters thus:

A Law Merchant evolves whenever commerce emerges. Practices that facilitated emergence of commerce in medieval Europe were replayed in colonial America, and they are being replayed in Eastern Europe, Eastern Asia, Latin America, and cyberspace. Law Merchant arrangements also support “underground” economic activity when states constrain above-ground market development.

It might be a while before we evolve away from our outmoded system of sending politicians to capitals to make statutes. And the issue of lawmakers playing catch-up with emergent systems may be awkward and kludgy for a while. But when we think that the purpose of law is to help people interact peacefully, peer-to-peer civil disobedience might be a necessary ingredient in reweaving the law for the sake of human flourishing.

ABOUT MAX BORDERS

Max Borders is the editor of The Freeman and director of content for FEE. He is also cofounder of the event experience Voice & Exit and author of Superwealth: Why we should stop worrying about the gap between rich and poor.

Liberal Exploitation of Americans

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City of Ferguson within Missouri (right) and St. Louis County (left) (Wikipedia Image)

When one hears members of the Negro thought police and their liberal white masters of liberal philosophy in the media, government, and academia, one cannot help but understand why our nation is in a heap of hurt. Together they seek to lead, push, prod, and deceive this republic into moral depravity, economic collapse, and national weakness. It is plain and simple to me that the liberal elites do not have any one’s best interest at heart except their own.

The uprising in Ferguson, MO, is a supreme example. There was a shooting of a known thug by a police officer. Without even the slightest bit of inquiry, fellow Ferguson residents and out-of-town agitators looted local businesses, abused other black residents, and just wreaked overall havoc on the town. I, for one, cannot understand why on earth a segment of the American population that claims to want and need more opportunities would loot and burn businesses that are needed in the community.

Unfortunately, such hooliganism is probably indirectly supported by the Obama administration. It may be extreme for me to say it, but Department of Justice (DOJ) head Eric Holder has been giving DOJ investigation updates to civil rights organizations. In addition, Mr. Holder has been known in certain circles to share a common cause with the black criminal.

Jay Nixon, Democrat Governor of Missouri (Wikipedia Photo)

Rather than allow the grand jury of Missouri to do its job in peace, liberal Missouri Governor Jay Nixon called for the indictment of the police officer who shot Michael Brown. To add insult to injury, law and order was turned on its ear when the police chief supposedly ordered officers to stand down and do nothing while looters sought to raid businesses and threaten owners.

The recent events in Ferguson, MO, are undeniable proof of the long-term damages of indoctrinating generations of Americans with liberal dogma that includes the blatant disregard for stability and the rule of law. Whether the liberal elites want to admit it or not, they and their corrupt philosophy send people on bunny trails of destruction and nonsensical behavior.

Take, for example, the burning and looting of businesses because one male was shot. Yet there has been almost no reaction, anger, or one tear shed over the thousands of blacks who are blown away annually by other blacks.

Also, the silence is deafening over the systematic murder of unborn black babies every single year. Where is the outrage over that?

President’s Day 2014: Do you remember when Presidents Upheld the Law?

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Rich Tucker from Heritage writes, “Today is known as ‘President’s Day,’ a three-day weekend retailers use to lend an air of Founding-era seriousness to their sales. But its legal name is Washington’s birthday—and how appropriate to reflect on a President who took his bearings from the Constitution while serving in office.”

George Washington “understood himself to be the President of a Republic in which the people, through their elected representatives in Congress, make laws,” Heritage’s David Azerrad writes. As the chief executive, Washington recognized that his constitutional charge to “take care that the laws be faithfully executed” was a duty rather than an optional responsibility to exercise at will. Laws, no matter how unpopular, had to be upheld, so long, of course, as they were constitutional.

Perhaps no law was more despised in Washington’s time than the excise tax on whiskey. It fell especially hard on farmers on the frontier of Pennsylvania, for whom whiskey was the drink of choice and grain the most lucrative crop. Washington saw the farmers’ violent resistance to the tax—the so-called Whiskey Rebellion—as a direct threat to the rule of law.

If “the laws are to be so trampled upon with impunity,” Washington noted, “nothing but anarchy and confusion is to be expected hereafter.” The President’s response was therefore swift and forceful: He personally led more than 12,000 troops to western Pennsylvania and quashed the rebellion.

What a contrast to President Barack Obama’s “I can do whatever I want” attitude toward the rule of law. In light of Washington’s constitutional leadership, Obama’s dereliction of duty when it comes to enforcing Obamacare—today’s most unpopular law and the President’s namesake—is especially clear. The President has unilaterally made changes to the law that was passed by Congress.

7 times Obama did “do whatever I want” during his presidency

Other examples of the President’s selective enforcement of laws duly passed by Congress abound. Among those cited by legal experts Elizabeth Slattery and Andrew Kloster:

  • Abdicating the Administration’s duty to defend and enforce federal laws.
  • Gutting the work requirement from welfare reform.
  • Implementing the DREAM Act granting amnesty to some illegal immigrants by executive fiat.

See more Obama overreach

“We are not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help that they need,” Obama announced last month.

It is inconceivable that such words would have ever come out of President Washington’s mouth. The current occupant of the White House may want to take some time today to read up on how our first and greatest President understood his role.

Read the Morning Bell and more en español every day at Heritage Libertad.