Don’t Vote

stop talking about the election

“The strong are always free by virtue of their superior strength. So long as government is a mere contest as to which of two parties shall rule the other, the weaker must always succumb. And whether the contest be carried on with ballots or bullets, the principle is the same; for under the theory of government now prevailing, the ballot either signifies a bullet, or it signifies nothing. And no one can consistently use a ballot, unless he intends to use a bullet, if the latter should be needed to insure submission to the former.” – Lysander Spooner, No Treason No. 1 Vol. 1, 1867

If there is one silver lining to the 2016 presidential election, it’s that it should make abundantly clear to many more individuals that politics is a sham, merely a clownish show where the biggest liars on Earth compete to see who can be the most deceitful while making less of an ass out of themselves than their opponents.

I mean, come on. For a while, it seemed like there might be a battle royale between the House of Clinton and the House of Bush – luckily for us, Jeb Bush had the good sense to drop out early. If only the rest of them had. At the time that I write this, the remaining (noteworthy) candidates are Bernie Sanders and Hillary Clinton for the Democrats, and Donald Trump and Ted Cruz for the Republicans (Note: This article was written in February 2016).

If anyone but Trump ends up winning, the first Jewish, woman, or Hispanic president will have, at long last, been elected. What a triumph for social justice! And if Trump wins, then we’ll be blessed with the first president who is basically a cartoon character; in fact, back in 2000, The Simpsons predicted that Trump would become president and ruin the country.

It’s incredible that any of these people have made it this far. Bernie Sanders is 74 years old, so perhaps dementia is preventing this self-described socialist from remembering the abject failure of socialist nations around the world, and getting in the way of an understanding of basic economics.

Ted Cruz has been accused of enjoying the music of Nickelback, and he failed to renounce this position when asked. Somehow, this has not derailed his campaign.

Hillary Clinton is actively under investigation by the FBI for running her own private email server from home while head of the State Department – an immense security issue, if there ever was one. That’s just one of the many controversies surrounding her. Oddly enough, she’s the biggest warmonger of the lot, substantially more interested in military adventures abroad than the Republican front-runners. And she near single-handedly destroyed the country of Libya – the same Libya that has become the major “home away from home” for the Islamic State.

Donald Trump (aka Tronald Dump) has said so many boneheaded things that he hardly requires introduction. If anyone were to bring back internment camps, such as those used to house Japanese-Americans during World War 2, it’d be him. Don’t think it won’t happen again.

One of these dipshits will almost certainly become the next POTUS. And unlike many of you, I will have nothing to do with it. For you see, I have elected not to vote. In this post, I hope to convince you to do the same.

 

Your Vote Is Meaningless

I hate to break it to you, but your vote is meaningless. This is simply the reality, and there is no use in trying to deny it.

First of all, your vote has a truly negligible chance of swaying an election (and as the population increases, this chance becomes worse and worse with every election). But even if, mathematically speaking, your vote were to be the “deciding” one, the election would ultimately be decided in some shady, back-room deals. Worse still, that doesn’t even matter, since you elect politicians who have no obligation to abide by their campaign promises, and are far more likely to be swayed by their corporate cronies than by “the will of the people.” Besides, the candidates are nearly identical in most important ways, so it’s as though you had no choice at all.

This narrative conflicts with most peoples’ utopian views of democracy and its value. This doesn’t make it any less true. Your vote simply will not decide an election, as I’ve said before:

“In order for your vote to determine anything, the outcome of the election (excluding yourself) would need to either be a tie, or have a one vote difference, with your vote being for the candidate who was losing (thus making it a tie).

The chances of this happening in a national election are negligible, and for other elections, still miniscule. For instance, take a look at this list of close elections throughout the world. There were a handful of ties or elections determined by a single vote, but nearly all of these were more local elections within sparsely populated Canadian territories. Every one of these elections had less than 40,000 total votes cast, most with well under 10,000.”

Even the most optimistic of academic estimates that your vote will be the deciding factor in a national election are between 1 in 10 million and 1 in 100 million depending on the state you live in. The mathematics of voting are so clear that it is hardly worth belaboring the point, but I do want to say that you are literally more likely to die on your way to the polling station on election day than to have your vote matter (and for more on the math, see this).

But even in the unlikely event that your vote almost makes a difference, it still simply won’t matter. There’s no need for “kooky” conspiracy theories to see this. Consider the close call in Florida in 2000. Multiple recounts occurred, none of which ended in a tie. And the process, of course, got shadier and shadier as the counting went on. And now that we have electronic voting machines, there are many reasons to be skeptical of the integrity of elections. Voting machines that have been used in real life elections are highly susceptible to hacking and having votes changed. There is statistical evidence that voting machines have been tampered with and had vote counts changed across numerous election cycles. For more on how crappy electronic voting is, see Ross Anderson’s “Security Engineering”, section 23.5 (free PDF). Among many examples provided in that section:

“Many problems were reported in the 2002 elections [551]; then, the following summer, the leading voting-machine supplier Diebold left its voting system files on an open web site, a stunning security lapse. Avi Rubin and colleagues at Johns Hopkins trawled through them found that the equipment was far below even minimal standards of security expected in other contexts. Voters could cast unlimited votes, insiders could identify voters, and outsiders could also hack the system [731]. Almost on cue, Diebold CEO Walden O’Dell, who was active in the campaign to re-elect President Bush, and wrote ‘I am committed to helping Ohio deliver its electoral votes to the president next year’ [1320].”

It’s not as though voting fraud is unheard of; it became significant under Lincoln and during the “Reconstruction”.

“Lincoln was known to instruct his military commanders to furlough registered Republicans while keeping Democrats (and any others) in the field, where they could not vote. In border states like Maryland, where there was powerful opposition to the war, federal soldiers flooded the cities on election days and were instructed to vote, even though they were not residents of those states.”

“Almost all Southern males were disenfranchised, while virtually all of the male ex-slaves were registered to vote (Republican). No Southern male could vote who participated in the war effort in any way, including contributing food or clothing to the Confederate army. Voter registration required one to publicly proclaim that one was on the side of the federal armies during the war, something that no sane southerner who valued his life would do.”

Today, a well-known problem is gerrymandering, or creating odd borders for districts to sway elections based on known voter demographics. This stuff is common. Plus, as Robert Epstein showed in a brilliant essay, big tech companies like Google and Facebook have the power to sway elections by changing what we are exposed to, and we would never know. Do you think these big companies are looking out for the “public interest” or their bottom lines? Research shows that big business and special interests are the real factor that influences government policy, as I’ve stated in the past:

“…the most robust of modern research on the topic has concluded that even mass groups of voters have a minimal effect on public policy. Rather, it is interest groups and powerful business interests that control policy outcomes. How else would incumbents win in Congressional elections over 90% of the time, even in a year like 2010 where people were particularly unsatisfied with their representatives?”

no difference between democrats and republicans

Whoever wins the election – even in the off chance that they are truly public spirited, Leslie Knope-esque individuals – will be forced by their position to adjust their policies to conform to the whims of those powerful interests. Perhaps this is part of the reason why the two major candidates are nearly identical on most major issues, making the whole election an absurd political circus. As Jesse Ventura said of our two-party system,

“[W]hat you have today is like walking into the grocery store and you go to the soft drink department, and there is only Pepsi and Coke. Those are the two you get to choose from. There is no Mountain Dew, no Root Beer, no Orange. They’re both Colas; one is slightly sweeter than the other, depending on which side of the aisle you are on.”

 

Why Politicians Act Like Scumbags

“What is any political campaign save a concerted effort to turn out a set of politicians who are admittedly bad and put in a set who are thought to be better. The former assumption, I believe is always sound; the latter is just as certainly false. For if experience teaches us anything at all it teaches us this: that a good politician, under democracy, is quite as unthinkable as an honest burglar.” – H.L. Mencken

Your vote is meaningless, and politicians know this. And voting is a fundamentally different process than that of market forces, which leads to predictable behavior on the part of politicians, as documented by Mark Brandly.

Consider how the free market works: in the market, consumers decide exactly what they want to buy. Each consumer can buy completely different things and there is no reason for conflict, because my buying a blue shirt doesn’t impose the blue shirt on you, and you buying a red shirt doesn’t impose that red shirt on me. Each consumer can get whatever he wants, and doesn’t get anything he would prefer not to have. Each consumer has an incentive to be informed about the products he is buying, because he is spending his own money on them. Researching the possible items, particularly big ticket items, makes an actual difference in a consumer’s life. None of this is true in the political “market”.

“Choosing between two candidates is analogous going to Walmart and being presented with two shopping carts already filled with items. Everyone will leave the store with the same cart of goods. Each cart contains products that a person may want and products that one wouldn’t choose to have, but the voter is not able to take anything out of either cart.”

Also…the two carts are very similar. They contain many of the same items, the items that are different are still similar (e.g., both carts contain a shirt — one red and one blue), and the two carts cost about the same amount. In addition, each taxpayer will end up paying for one of the carts even though he wouldn’t voluntarily purchase this basket of items.

…when you are presented with the two carts, you are allowed to vote on which cart you want. However, you vote infrequently, say, once every four years, and your vote doesn’t matter. You will end up with the same cart regardless of your vote. In fact, even if you don’t vote, this will not affect the bundle that you receive in your cart.”

Democracy is even worse than this analogy suggests. A candidate can promise certain policies and completely renege on them when elected. With the shopping cart, you at least know that if something is in there, it’s in there. So how does the structure of political democracy encourage politicians to misbehave?

“The point, so far, is that in an election voters are faced with bundled choices, they vote infrequently, no individual’s vote will affect the election, voters have little incentive to be highly informed about the candidates’ policy positions, and the winning candidate is not obliged to deliver on his promises. Candidates who understand these simple facts about an election will have an advantage over political opponents who do not understand the nature of elections.

Realizing this, candidates need to make two important decisions. First, a candidate must consider which bundle of policies will give him the best chance of winning the election, and second, a candidate must devise a strategy that will give his supporters an incentive to vote in spite of the fact that no individual vote matters.”

First, candidates will tend to pick positions that are more centrist in order to appeal to the bulk of voters, who cluster around less “extreme” views. This means that both candidates will have very similar policies.

“The last two presidential administrations demonstrate this point. Even though they represent different political parties, many of the foreign-policy and financial advisors of the Bush administration would be comfortable in the Obama administration and in some cases the same individuals are in both administrations. Bush and Obama both support the welfare state and the military empire. They both have proposed budgets greatly expanding the budgetary size and legal reach of our federal government.”

This means that candidates are inclined to deceive the public about their positions in order to appeal to this median voter. But it’s a little bit more complicated than that.

“In order to gain political power in our system, a candidate must win two elections, the primary election and the general election. The difficulty for a candidate is that he needs to appeal to a different set of voters in each election. In order to win the primary election, a candidate must attract the median voter of his party’s primary voters. Then the candidate must change his position to gain the support of the median voter in the general election.”

This is tricky, but there are some strategies that politicians can employ to make this easier. Two keys to winning include being the first to accuse your opponent of flip-flopping, and buying favors with government power. These favors should have the costs dispersed among as many people as possible, but the benefits accruing to smaller groups of rent seekers who are more likely to organize on your behalf. You can also hide the costs, as in the Social Security system, where half of the tax is paid by the employer, even though that cost is ultimately borne by the employee anyways. Basically, candidates have strong incentives to lie to the voters. Candidates who are averse to being deceitful are at a huge disadvantage in an election.

“…a candidate will never claim that his main goal is to acquire political power so that he can enrich himself. He will use pet phrases that hide the true nature of his policies. No matter what policy he is defending, he may claim that the program is “for the children,” or that it will “strengthen the family.” Other possibilities include asserting that the policies will “grow the economy” or “help the environment.” In the current political atmosphere, saying that you are “fighting terrorism” will blind many people to your actual intent. The point is that simple platitudes will fool many people.

Another lie we hear is candidates’ assertion that (even though they would take similar positions when in office) there are major differences between them. Each will claim that their policies will lead to prosperity and security, and that their opponent’s positions will result in impoverishment and ruin. Convincing supporters that there is a major difference between the candidates will make it more likely that they will vote. A candidate needs to continually push his supporters to go to the polls.

A common tactic for gaining support is fear mongering. Fear often trumps logic. Voters can be scared into believing that there will be dire consequences if their candidate loses the election. A candidate can appeal to his followers by claiming that if the other candidate wins the election we will be attacked by terrorists, or our taxes will be raised, or we may lose our jobs, or our children will not get a good education, or we will run out of oil, or we may not get adequate health care, or the environment will be destroyed. While some of these claims may be correct, they are true regardless of which candidate wins the election, because either winning candidate will implement policies that will do us much harm. In making such claims, candidates rely on the fact that voters will not recognize that the candidates largely agree on the major issues regarding government policy.”

This also explains why politics tends to be so negative, and attack ads are used so frequently despite people generally being “against” them. Ultimately, this just leads to divisiveness and conflict.

“Selling your product in the private sector requires a customer to cast an affirmative vote to buy it. Just convincing a potential customer that a rival product should not be purchased does not mean a sale for you.

This is because a sales prospect can choose from among several sellers, or he can choose to not buy at all. But those options are unavailable in an election with only two major parties, where customers are effectively forced to “buy” from one of them.

In an essentially two-party election, convincing an uncommitted voter to vote against the “other guy” by tearing the opponent’s position down is as valuable to a candidate as convincing that voter of positive reasons to vote for him; either brings him a vote closer to a majority. That is not true in the private sector, as only votes for you–purchases–help you.

Similarly, talking a voter committed to a rival to switch to your side is worth two votes, since it adds one to your vote column and subtracts one from your rival’s. But you would only benefit from the single additional purchase/vote for you in the private sector. Further, in an election, finding a way to get someone who would have voted for your rival to not vote at all is as valuable as getting one more voter to vote for you.

This is why negative campaigns that turn voters off from political participation altogether are acceptable in politics, as long as a candidate thinks he will keep more of his competitor’s voters away from the polls than he will his own. In the private sector, such an approach would not be taken, as it would reduce, rather than increase, sales.“

I suspect that most people intuitively understand how messed up this all is, but have resigned that this is simply the way things are.

““Well, that’s the way the game is played,” I sometimes hear. “If you don’t fight dirty, you aren’t going to win, so even the good ones have to fight dirty. An honest candidate couldn’t win.” But if you have accidentally (let us hope) established a political system that excels at elevating psychopaths to positions of power and authority, maybe the answer is not to hope for a flock of honorable people who can impersonate psychopaths long enough to climb into power, but to stop propping up a process that installs psychopaths as your rulers, and, once these psychopaths have been successfully identified by their success in the electoral process, to stop giving them so much power to do evil.” – David Gross

 

The Ethics of Voting

“The state — or, to make the matter more concrete, the government — consists of a gang of men exactly like you and me. They have, taking one with another, no special talent for the business of government; they have only a talent for getting and holding office. Their principal device to that end is to search out groups who pant and pine for something they can’t get and to promise to give it to them. Nine times out of ten that promise is worth nothing. The tenth time is made good by looting A to satisfy B. In other words, government is a broker in pillage, and every election is sort of an advance auction sale of stolen goods.” – H.L. Mencken

You may or may not believe that voting is a decision in the realm of ethics, but there are serious moral considerations involved with the decision to vote or not. Most people do not fully consider the moral ramifications of the act of voting.

It helps to first consider what government is in the first place. A commonly accepted definition offered by famed sociologist Max Weber is that government is an institution that holds a monopoly on the legitimated use of force in a geographic area. While I would dispute the notion that governments’ use of force is in fact morally legitimate, I cannot deny that the force of government at least seems legitimate to most people. What this means is that, while you or I are not allowed to steal from each other, the government can steal from us (“taxation”). And while you and I are not allowed to kidnap people for behaving in ways that we don’t agree with, the government can imprison people for engaging in officially prohibited behaviors.

This is important. When a new law is created, that means a new instance of institutionalized violence has been born. Real people will be stolen from (“fined”, “taxed”) or sent to jail because of it. Even if nobody is directly stolen from or imprisoned, the law creates a threat of violence, which isn’t that much better.

When seen in this light – whether you view the law or government as legitimate or not – the moral implications of voting become somewhat more clear. If you vote for a political candidate and that person then helps to create or enforce laws, then you are in part responsible for the violence that ensues. Stated differently (emphasis mine):

“Voting is an act of consent…When you vote you agree to abide by the rules of the game and accept the outcome. By voting, the voter endorses the governmental system under which he or she lives and those in control of it. Each voter is saying: It is right and proper for some people, acting in the name of the State, to pass laws and to use violence to compel obedience to those laws if they are not obeyed regardless of the morality of those laws.

Note the crucially important clause “regardless of the morality of those laws.” If you vote, and then your government starts aggressive foreign wars, kills people without due process in drone strikes, imprisons nonviolent drug users, etc., then you have consented to and encouraged this needless violence. You are in part morally responsible for acts of violence done by an agent operating on your behalf (government) despite almost certainly never being willing to commit comparable acts of violence directly.

In this way, and many others, politics turns us into worse human beings.

“…politics doesn’t just make the world around us worse. It makes us worse, as well. When we participate in politics—by seeking office, by voting—we take part in a system where we attempt to decide for others while they attempt to decide for us, and where those decisions, whoever makes them, are backed by violence or, at the very least, the threat of violence. It’s a system where the participants say to each other, “I know what’s best for you, you need to do what I say, and if you don’t, these men with guns will threaten you or take your money or lock you in a cage or kill you.” Such a system encourages us to deal with each other in ways beneath the standards of behavior we ought to reach for, and it encourages us to see each other not as friends and companions and fellow seekers of the good life, but as enemies and rivals and obstacles in the way of finding happiness.

Politics inculcates pettiness, short-sightedness, Manichean thinking, tribal feuds, selfishness, and rage. It discourages reason and respect and a basic appreciation of the dignity of others, especially those who seek lives different from our own. It makes us less likely to find virtuous mentors or learn from the virtuous actions of others, because everyone we encounter will themselves suffer from its corrosive influence. Politics encourages extreme reactions instead of careful seeking of the proper, measured response. Politics distances decisions from local knowledge and so limits moral wisdom by making it less likely we will act to bring about virtuous outcomes even when motivated by virtuous impulses.”

The violence of government and the nature of democracy do bring up an interesting question though: can we vote in self-defense? After all, while we don’t normally condone shooting innocents, most people agree that it is okay to shoot someone who is shooting at you. In the same way, can we vote in order to counteract people who are voting “at” us?

Reasonable people can disagree on this question. For specific referendums on political questions, I believe the answer is yes, you can vote in self-defense. Usually, this means voting “no” to prevent some sort of aggression, but in rare circumstances, you may be able to vote “yes” to remove an existing aggression. For instance, I believe that you can vote to decriminalize drugs, prostitution, or other victimless crimes.

But what about elections for politicians? Is it self-defense to vote for “the lesser of two evils”? Libertarian Wendy McElroy tackles this question:

“But a libertarian senator would be a lesser evil, it is argued. He would be a good politician. Nonsense. It is not the particular man that is objectionable; it is the position of power itself. Moreover, a successful libertarian politician would take an oath to uphold massively unjust laws. Either he would be lying then or he would have been lying beforehand when he claimed to be libertarian. In either case, he is another lying politician.”

More theoretically,

“Voters defend themselves against a politician who would be more draconian than the candidate they favor. Instead of firing a bullet in self-defense, they fire a ballot to knock out worst alternatives. The problem is that a defensive bullet can be narrowly aimed at a deserving target. A ballot attacks innocent third parties who must endure the consequences of whichever politician is assisted into a position of unjust power. Innocent people will bear the brunt not only of government actions but also of being robbed to pay for them. Every voter bears moral responsibility for this injustice.”

Voting, therefore, is not analogous to other instances of self-defense. If someone were shooting at you, voting would be like shooting back at them – and all of the other people in the room. Obviously, voting does not have the same moral intensity as shooting people, but it is still immoral.

 

Reasons To Vote, Debunked

Despite the moral and practical reasons not to vote, countless platitudes are trotted out each election season in order to encourage people to vote. Most are just ridiculous appeals to “patriotism”. Some are mentioned so frequently and yet are so patently absurd that they need to be addressed individually.

 “If you don’t vote, you have no right to complain.”

This is one of the stupidest things I’ve ever heard, and it should only take a moment of thought to understand why. George Carlin does a great job of explaining it at around 2:10 into this video:

I hope that when people use this excuse for voting, they do not quite mean it literally – after all, everyone has a right to complain. That’s freedom of speech. Perhaps they mean that those who participate in some enterprise have a more legitimate grievance when things aren’t going well.

“In his 1851 book Social Statics, the English radical Herbert Spencer neatly describes the rhetorical jujitsu surrounding voting, consent, and complaint, then demolishes the argument. Say a man votes and his candidate wins. The voter is then “understood to have assented” to the acts of his representative. But what if he voted for the other guy? Well, then, the argument goes, “by taking part in such an election, he tacitly agreed to abide by the decision of the majority.” And what if he abstained? “Why then he cannot justly complain…seeing that he made no protest.” Spencer tidily sums up: “Curiously enough, it seems that he gave his consent in whatever way he acted—whether he said yes, whether he said no, or whether he remained neuter! A rather awkward doctrine this.””

By making the argument that not voting waives your right to complain, you essentially argue that nobody has a right to complain in the political realm! If anything, it is far more intuitive to assert that the act of voting forfeits your right to complain in the way that both George Carlin and Herbert Spencer mentioned above – you have provided consent to the system by voting. Don’t get me wrong though, everyone has a right to complain and should complain about politicians at every available opportunity. But the act of voting makes your opinion matter just a little bit less.

“People have sacrificed their lives for your right to vote!”

This is another curious one, considering how no major war was ever fought defending your right to vote. America has even lost some wars, but this hasn’t stopped voters. After Saigon fell in 1975, how have we managed to elect politicians since?

It’s even sillier to make this claim in light of the defeats during the 1930s of the Ludlow Amendment, a proposed constitutional amendment that would have required a national referendum in order to declare war, except when attacked first. Despite massive public support (75% of the population supported it), it was unable to gain traction in Congress and died in committee. I suspect that if enacted, this amendment would have made little difference (for instance, the US would still have entered Vietnam despite the Gulf of Tonkin incident being completely fabricated). That being said, how can we say that people have fought for our right to vote when we don’t even have a right to vote on the wars that they fight in?

And surely, even if people had died defending the right to vote, they would have supported the right to abstain as well. Especially if all of the options for who to support are evil.

 “Vote for the lesser of two evils.”

There is so much that is wrong with this “advice” that it makes me recoil a little bit when people recommend to “vote for the lesser of the two evils.” Imagine you are confronted with the following choice:

  • Endorse murder
  • Endorse rape
  • Abstain from endorsing either.

Clearly, we ought to abstain. But the person who suggests voting for the lesser evil may respond in this absurd, self-righteous way: “Oh, you don’t vote? Well I guess that means you would let murder win! I, on the other hand, support rape, the lesser of the two evils!”

When you vote for any evil, you are in part responsible for the evils that are then committed on your behalf. And if being evil doesn’t stop politicians from being elected by voters, then the quality of candidates will continuously degrade as they realize that they can get away with whatever they want.

I love the way Frank Chodorov frames this in his book Out of Step.

“Particularly was I impressed by the candidates’ evaluations of one another. Neither one had a good word to say of his opponent, and each was of the opinion that the other fellow was not the kind of man to whom the affairs of state could be safely entrusted. Now, I reasoned, these fellows were politicians, and as such should be better acquainted with their respective qualifications for office than I could be; it was their business to know such things. Therefore, I had to believe candidate A when he said that candidate B was untrustworthy, as I had to believe candidate B when he said the same of candidate A. In the circumstances, how could I vote for either? Judging by their respective evaluations of each other’s qualifications I was bound to make the wrong decision whichever way I voted.

Admitting that there is no difference in the political philosophies of the contending candidates, should I not choose the “lesser of two evils?” But, which of the two qualifies? If my man prevails, then those who voted against him are loaded down with the “greater evil,” while if my man loses, then it is they who have chosen the “lesser evil.” Voting for the “lesser of two evils” makes no sense, for it is only a matter of opinion as to which is the lesser. Usually, such a decision is based on prejudice, not on principle. Besides, why should I compromise with evil?

If I were to vote for the “lesser of two evils” I would in fact be subscribing to whatever that “evil” does in office. He could claim a mandate for his official acts, a sort of blank check, with my signature, into which he could enter his performances. My vote is indeed a moral sanction, upon which the official depends for support of his acts, and without which he would feel rather naked.”

Again, voting has ethical ramifications. When you vote for a candidate, you are not voting for a reduction of evil, but rather a continuation of it.

“Vote! It’s your civic duty.”

To be honest, I’m not exactly sure what this means. I suspect that most people who use this platitude do not understand what they are saying either. Presumably, we must vote in order to be considered a “good citizen.” Unfortunately, elevating the importance of elections in this way tends to encourage people to conceive of these elected offices as ones that ought to hold great power.

“Those who exaggerate the importance of elections (usually as part of their campaign pitch about how important it is for you to vote, and in a particular way) also tend to exaggerate the power of office-holders and the abilities (and propensities) of the politicians who hold office. This has the unfortunate effect of getting people accustomed to the idea that these offices ought to have great powers concentrated in them, and ought to be looked on to solve our problems, create miracles, provide for our needs, and so forth. This in turn makes the psychopaths in power more dangerous.”

It not only makes those in power more dangerous, but it also makes your fellow citizens into dangerous enemies to be vanquished, rather than merely individuals with whom we have a difference of opinion. Politics and voting are not your “civic duty” – rather, they are an institutionalized mechanism which causes social chaos and divisiveness among good people.

“It’s not difficult to understand why politics plays such a central role in our lives: political decision-making increasingly determines so much of what we do and how we’re permitted to do it. We vote on what our children will learn in school and how they will be taught. We vote on what people are allowed to drink, smoke, and eat. We vote on which people are allowed to marry those they love. In such crucial life decisions, as well as countless others, we have given politics a substantial impact on the direction of our lives. No wonder it’s so important to so many people.

Politics takes a continuum of possibilities and turns it into a small group of discrete outcomes, often just two. Either this guy gets elected, or that guy does. Either a given policy becomes law or it doesn’t. As a result, political choices matter greatly to those most affected. An electoral loss is the loss of a possibility. These black and white choices mean politics will often manufacture problems that previously didn’t exist, such as the “problem” of whether we—as a community, as a nation—will teach children creation or evolution.”

These disagreements are a waste of time, and could easily be resolved by allowing voluntary communities to determine their own rules on such matters. Instead, these disagreements are elevated to a battle between Good and Evil, Virtue and Vice.

“What’s troubling about politics from a moral perspective is not that it encourages group mentalities, for a great many other activities encourage similar group thinking without raising significant moral concerns. Rather, it’s the way politics interacts with group mentalities, creating negative feedback leading directly to viciousness. Politics, all too often, makes us hate each other. Politics encourages us to behave toward each other in ways that, were they to occur in a different context, would repel us. No truly virtuous person ought to behave as politics so often makes us act.”

So no, voting is not your civic duty. No reasonable definition of a civic duty can require us to engage in behaviors that create a social war of all against all. If anything, you have a duty to abstain from voting in order to avoid fostering additional conflict.

“Voting is a way to speak your mind and let your voice be heard!”

“Democracy is the theory that the common people know what they want, and deserve to get it good and hard.” – H.L. Mencken

“When a candidate for public office faces the voters he does not face men of sense; he faces a mob of men whose chief distinguishing mark is the fact that they are quite incapable of weighing ideas, or even of comprehending any save the most elemental — men whose whole thinking is done in terms of emotion, and whose dominant emotion is dread of what they cannot understand. So confronted, the candidate must either bark with the pack or be lost… All the odds are on the man who is, intrinsically, the most devious and mediocre — the man who can most adeptly disperse the notion that his mind is a virtual vacuum. The Presidency tends, year by year, to go to such men. As democracy is perfected, the office represents, more and more closely, the inner soul of the people. We move toward a lofty ideal. On some great and glorious day the plain folks of the land will reach their heart’s desire at last, and the White House will be adorned by a downright moron.” – H.L. Mencken

Or, a closely related slogan: “vote for change!” For some reason, this last one seems to work best on the young and ignorant; I recall the 2008 election where the majority of this demographic almost religiously got in line behind Obama, leading to creepy things like this song, “I believe in Barack Obama” by the Hush Sound.

Despite Obama doing things just about the same as Bush did, this same demographic has overwhelmingly been supporting Bernie Sanders with the same vigor. I suspect that if Bernie is elected, we’ll have about the same amount of “change”.

But by far the “best” variant on the “let your voice be heard!” argument is one that I read on this handout from an organization called the Partnership for Safety and Justice (emphasis in original):

“Last but not least, because it gives you credibility! Often times, we voice our concerns to elected officials, but if we aren’t voting, our concerns may not matter at all to them. Voting can actually give you the credibility to make your concerns a top priority for legislators.”

Read that again. Apparently, your vote captures your opinions about how the country should be run and the politicians are listening to you! Oh, come on now. As discussed above, your vote is meaningless, your concerns actually don’t matter at all to politicians – not when there are special interests to please.

In the market, there are ways to “let your voice be heard” that do not involve forcing your opinions on others. Voting can even be a decent method for this, such as members of an organization voting on proposed rules, or a group of friends voting on where to go for dinner. Voting in political elections is nothing like this.

“So what do I mean by “politics?” I mean the act of deciding for others via the mechanisms of the state. Choosing for others, and then getting government to make them go along with our choices. Granted, when we make decisions via those mechanisms—by, say, voting—we expect the outcome will apply to ourselves and not just to other people. But it’s misleading to say we are “deciding for ourselves” when we vote, because if what we vote for is something we would’ve done anyway, we could always choose to do it independent of a vote. If I think contributing money to a cause is worthwhile, I don’t need the state to make me do it. I can cut a check any time. By voting, by shifting from the personal and voluntary to the political and compulsory, we call for the application of force. A vote is the majority compelling the minority to comply with the majority’s wishes. Thus politics is a method of decision-making where choices are moved from individuals choosing privately to groups choosing collectively, and where the decisions those groups arrive at are backed by law and regulation. It’s this last aspect—the backing by the force of law—that distinguishes politics from, say, five friends voting on where to go for dinner.”

Contrary to what many say, voting is not a way to voice your opinion. It is a way to legitimize the rule of others. Two brief stories will help drive this point home. First, consider Wendy McElroy’s recitation of a parable by Larken Rose:

“The anarchist Larken Rose presented a realistic view of slaves voting in his parable, “The Jones Plantation.” Slave-owner Jones laments to slave-owner Smith about risking the disobedience of his slaves by pressing them to work harder. Smith offers a solution. He gathers the slaves and declares them to be free men who will work for themselves henceforth. He advises them to stay on the plantation, however, as slave-owning neighbors would recapture them immediately. He adds: Since only Jones has experience in running a plantation, Jones will remain as administrator. The ‘former’ slaves go to work in the cotton fields with the renewed vigor of free men.

The next day, a handful of ‘former’ slaves become supervisors to ensure the rules are followed in order “to benefit all equally.” The rest work with renewed vigor.

On day three, a man named Samuel is whipped for holding back some cotton for his own use; this is called “stealing” from everyone else. When Samuel complains there is no difference between freedom and slavery as long as Jones makes all the rules, Smith gathers the ‘former’ slaves and tells them there will be an election every three months in which either Jones or Jones’s cousin will be voted administrator; the ‘former’ slaves are in control. Moreover, everyone now has two minutes in which to speak out at each gathering.

Eventually, Samuel uses his two minutes to say that nothing has changed. Jones and his cousin are exactly the same; they take the wealth and leave next to nothing for the ‘former’ slaves. The other workers turn against Samuel.

Rose presents some of the key elements of voting, especially in the context of slavery. Voting provides an illusion of freedom, a delusion of control to which the slaves cling. It turns them against each other both as supervisors and as workers who are either pro-Jones or pro-cousin. It turns the slaves against the one man who speaks the truth in protest. And nothing, nothing about the conditions of slavery change…except the words describing it. Voting is called “freedom,” “democracy,” “civic responsibility,” or “self-defense.”“

Voting gives the masses a sense as though they have some control or freedom, but this is just an illusion.

A similar parable is Robert Nozick’s “Tale of the Slave”, from his award winning book Anarchy, State, and Utopia.

“Consider the following sequence of cases… and imagine it is about you.

  1. There is a slave completely at the mercy of his brutal master’s whims. He often is cruelly beaten, called out in the middle of the night, and so on.
  2. The master is kindlier and beats the slave only for stated infractions of his rules (not fulfilling the work quota, and so on). He gives the slave some free time.
  3. The master has a group of slaves, and he decides how things are to be allocated among them on nice grounds, taking into account their needs, merit, and so on.
  4. The master allows his slaves four days on their own and requires them to work only three days a week on his land. The rest of the time is their own.
  5. The master allows his slaves to go off and work in the city (or anywhere they wish) for wages. He requires only that they send back to him three-sevenths of their wages. He also retains the power to recall them to the plantation if some emergency threatens his land; and to raise or lower the three-sevenths amount required to be turned over to him. He further retains the right to restrict the slaves from participating in certain dangerous activities that threaten his financial return, for example, mountain climbing, cigarette smoking.
  6. The master allows all of his 10,000 slaves, except you, to vote, and the joint decision is made by all of them. There is open discussion, and so forth, among them, and they have the power to determine to what uses to put whatever percentage of your (and their) earnings they decide to take; what activities legitimately may be forbidden to you, and so on.
  7. Though still not having the vote, you are at liberty (and are given the right) to enter into the discussions of the 10,000, to try to persuade them to adopt various policies and to treat you and themselves in a certain way. They then go off to vote to decide upon policies covering the vast range of their powers.
  8. In appreciation of your useful contributions to discussion, the 10,000 allow you to vote if they are deadlocked; they commit themselves to this procedure. After the discussion you mark your vote on a slip of paper, and they go off and vote. In the eventuality that they divide evenly on some issue, 5,000 for and 5,000 against, they look at your ballot and count it in. This has never yet happened; they have never yet had occasion to open your ballot. (A single master also might commit himself to letting his slave decide any issue concerning him about which he, the master, was absolutely indifferent.)
  9. They throw your vote in with theirs. If they are exactly tied your vote carries the issue. Otherwise it makes no difference to the electoral outcome.

The question is: which transition from case 1 to case 9 made it no longer the tale of a slave?”

 

Conclusion

I don’t expect this essay to convince many. Those who believe that one “should” vote are unlikely to be pursuaded by reason. But hopefully I have at least planted the seed of understanding in some readers, such that one day, upon becoming fed up with the political process, they will awaken to the idea that perhaps participating in this charade is a waste of time.

The politicians and the democratic process that legitimizes their power will chug along just fine without you. As Frank Chodorov remarked,

“All in all, I see no good reason for voting and have refrained from doing so for about a half-century. During that time, my more conscientious compatriots (including, principally, the professional politicians and their ward heelers) have conveniently provided me with presidents and with governments, all of whom have run the political affairs of the country as they should be run — that is, for the benefit of the politicians.

Why should any self-respecting citizen endorse an institution grounded on thievery? For that is what one does when one votes. If it be argued that we must let bygones be bygones, see what can be done toward cleaning up the institution of the State so that it might be useful in the maintenance of orderly existence, the answer is that it cannot be done; you cannot clean up a brothel and yet leave the business intact. We have been voting for one “good government” after another, and what have we got?”

For those of you who vote despite this, I agree with George Carlin’s sarcastic quip: I’m sure that the country will improve dramatically after your guy gets elected.

Political Obligations: Are We Morally Obligated To Obey Our Governments?

A man without a government is like a fish without a bicycle

Imagine you live in a town, and there is a problem.

Perhaps the problem is crime – some people do bad things like steal, murder, and rape. Or maybe you think that the moral fabric of your town is being corrupted by homosexuals, drug users, prostitutes, payday lenders, unscrupulous merchants, or people who look at you funny.

One day, you decide to do something about it. Sick of all the criminals in town, you begin to investigate crimes yourself, apprehend the criminals, and then lock them up in your basement. Then you walk over to your neighbor’s house and say “Hey there! I’ve been locking away the criminals in our town, and this is a mighty costly endeavor. Since I’ve provided this service to you, it’s time for you to pay your fair share. Please provide me with a check for $500.”

How do you think people would react to you? I’d venture a guess and say that people would slam the door in your face and laugh.

Having just been rejected, you knock on their door again. When they answer, you say “Hey now. I’m locking up the criminals in our town, and if you don’t pay up, I will consider you a criminal. Give me my money, or you’ll spend the next five years living in a cage in my basement.”

Morally speaking, is this justified? Of course not! What you are doing is robbing someone and threatening to kidnap them – actions that we can agree are morally wrong.

Nearly anyone would recognize this. And yet, when the government does exactly the same thing, it is almost universally considered “taxation” and “criminal justice,” things that most believe are morally legitimate actions for a government to take. And that very well may be true – but since our moral intuitions about the actions a private individual can do and what the government can do reveal a double-standard, it is necessary for the state to have some kind of moral authority that enables it to legitimately do things that you and I cannot. To justify a law, one must justify the use of physical coercion against those who violate the law. Causing harm to others is prima facie wrong, so some account must be given to why governments are allowed to violate our common sense moral intuitions.

This is the problem of political obligation, which is the moral property that gives governments the right to coerce people in a way that these people cannot themselves, and in which the subjects of a government are obligated to obey its dictates despite individuals not normally being required to obey other people. In other words, what makes a state morally unique and differentiated from the individuals who comprise it (and everyone else)?

For centuries, political philosophers have discussed this problem and have proposed theories justifying political obligations. My intention in this essay is to show why the most prominent of these theories of political obligation fail. The arguments presented here are drawn from two wonderful books, and if you are curious to see them fleshed out in more detail, you can do no better than to check them out:

Alright, let’s get started!

 

The Problem of Political Obligation

When you have an obligation to do something, that obligation is not an absolute moral claim on your actions. If you have an obligation or duty to do something, that is a very good reason for acting in a particular way, but not a conclusive reason for doing so. In other words, obligations don’t override other moral considerations for acting.

Let’s say we agree to meet for lunch. I now have an obligation to go to lunch at the agreed upon time and location. But if on my way to lunch I come across a child drowning in a pond, my obligation does not mean that I ought to let the child die and continue to lunch. Clearly, other moral considerations dominate the obligation to meet for lunch.

What this means is that even if it can be established that political obligations exist and bind us to our governments, that does not mean that we are morally required to obey the government in all cases. It would provide a very strong prima facie reason to do so – but if obeying the law meant that some significantly greater harm would occur, the morally correct action is to disobey. This is an important bound to what I am attempting to prove in this article: the existence of political obligations does not automatically entail counterintuitive results such as “supporting the Nazis was morally correct for Germans.” What it would mean is that there was a good reason to support the Nazis (or any government), but it was (heavily) outweighed by other moral considerations.

With that out of the way, let’s define obligations with more precision. An obligation is a moral requirement satisfying the following conditions:

  1. An obligation is a requirement generated by the performance of some voluntary act or omission. This is contrasted with duties, which can exist without performing some special action.
  2. An obligation is owed by a specific person to a specific person or persons. Duties, by contrast, are owed by all people to everyone else. That’s why you can “fulfill” your obligations, but cannot ever discharge of a moral duty.
  3. Every obligation that is generated establishes a corresponding right that is generated at the same time. If person A has an obligation to do X for person B, then person B has a right to the performance of X by A.
  4. It is not the nature of the required act that generates the obligation, but rather the nature of the relationship between the obligor and the obligee. Just because an act is moral or praiseworthy does not make the act obligatory.

These conditions help separate the concept of “obligations” from the very similar concept of “duties”. Most of this post will focus on obligations, but John Rawls proposed a “natural duty of justice” which will also be discussed in a later section.

An important concept is that of a “positional duty” – a duty that arises due to the nature of a position itself. For instance, a part of a soldier’s positional duties would be to shoot at an advancing enemy when the commander says so. Positional duties of this sort do not have moral weight. To say that someone has a positional duty is to say that, because of some position that the agent is in, the agent is required to do something specified by that position. But this says nothing about the nature of that position, which could be a Nazi guard who has a positional duty to aid in the extermination of Jews. If a positional duty is in fact morally binding, it is because of some other grounds for morality that is not related to the position. Therefore, we do not have a duty to obey the government simply in virtue of the fact that we are citizens of that government; something else must explain this duty. What most people would call “legal obligations” are thus morally neutral. Just because the legal obligation of a Nazi guard is to help exterminate Jews, this does not make murdering Jews morally justified.

slavery and government

Similarly, just because a particular institution exists and its rules apply to someone does not mean that they are morally bound to that institution. Tyrannical governments are not morally entitled to the support of those who live under them.

In this essay, I will not assume any particular moral theories are correct. But before moving on, let’s consider utilitarianism, which offers a different approach to generating obligations than that outlined in this article. Utilitarianism, very roughly, is the doctrine that the morally correct action is always the one that maximizes “utility” or “happiness”. Utilitarian deliberations can at times lead us to conclude that we are obligated to obey the government, but just as easily in other cases that we are not obligated to obey. As such, there is no utilitarian approach to creating a moral requirement to support or comply with a given political institution. Since utilitarianism bases the moral rightness of something on a single condition, it doesn’t seem that it is capable of leading to a theory of obligation in general. Any potential obligation is immediately superseded by concerns about utility. Any obligations generated from utilitarian calculations is due to the amount of utility that results from one’s actions, not due to the nature of political institutions themselves.

A common concern that many people have with this result can be phrased as the question: what if everyone disobeyed the law? This brings us to rule-utilitarianism, which stipulates that we ought to act in accordance with rules that, if generally adopted, would lead to the greatest utility. But our decisions are somewhat independent of each other. For instance, if I decide to become a math teacher, this seems fine. But what if everyone became a math teacher? Everyone would starve. That doesn’t make becoming a math teacher morally wrong. To phrase it all as a rule: “I can break the law when the content of the law isn’t independently morally required (don’t murder, for example), provided that there are not too many people breaking the law.” Therefore, rule-utilitarianism, like act-utilitarianism, is unable to generate an account of political obligation.

Furthermore, as Huemer points out,

“Presumably, if individuals are obligated to maintain social order, the state is similarly obligated. If disobedience to any law risks causing a collapse of social order, then the state, in making laws that are not necessary to maintaining social order and that are likely to be widely disobeyed, is itself threatening social order far more than a single individual who disobeys one of these laws. Furthermore, asking the state to renounce its desire to make such unnecessary laws is more reasonable and less onerous than asking an individual to renounce his personal liberties.”

So, what would a successful account of political obligations look like? According to Huemer, it must satisfy the following five conditions:

  1. The state’s authority applies to citizens generally. The great majority of individuals should have political obligations, and the state must be justified in using coercion against the majority of its citizens.
  2. The state’s authority is limited to those citizens and residents within its territory.
  3. The state’s authority is not tied to the content of its laws or other commands. Even if a law is “bad”, citizens must have obligations to obey. An account of political obligation should explain why citizens ought not to jaywalk because the state says so. Of course, as discussed earlier, citizens might be morally required not to act in accordance with this law, if other moral considerations outweigh it.
  4. The state is entitled to regulate a broad range of human activities, and individuals must obey the state’s directives within this range.
  5. Within the sphere of action that the state is entitled to regulate, it is the final and highest human authority.

Let’s explore condition (2) for a moment. This is what Simmons dubbed the “particularity requirement”. We are only interested in moral requirements that make an individual bound to a particular political community or institution in order to create obligations based upon citizenship. Let’s say we had an obligation to support just governments (however defined). While living under a just government, I would be obliged to support it. I would be equally obliged to support every other just government to the same degree. But political authority is supposed to explain why we are bound to “our” particular government, not governments in general.

With this in mind, let’s tackle the most important theories of political obligation.

 

Consent Theories And The Social Contract

Consent theories of political obligation are those that argue that no man is obligated to support or comply with any political power unless he has personally consented to its authority over him. In other words, political obligations are grounded in the citizen performing some voluntary act in order to deliberately undertake the obligation.

This is a very popular theory, and is supported by philosophical heavyweights such as John Locke. Consent theory is attractive because it prevents man from being bound to a government which he does not choose. It respects our belief that men should determine the course of their own life as much as possible. It protects an individual’s freedom to determine which particular institution will get his political allegiance.

The major assumptions behind consent theories are:

  1. Man is naturally free. The “state of nature”, therefore, is discussing men during a time prior to them having voluntarily acted in a way that morally binds them.
  2. Man gives up his natural freedom only by voluntarily providing a clear sign that he intends to do so.
  3. The method of consent protects man from injury by the state. Only a government which has been “chosen” by the individual has any legitimate power over them.
  4. The state is an instrument for serving the interests of its citizens. Neither the state nor another individual can determine what is in the interests of another; one must provide consent that would indicate that the individual considers his interests served by the government.

Prior to the existence of governments, man lives in the state of nature, where he can do whatever he wants. But then he performs some kind of act which binds him to a government by signaling his consent. If he does not consent to the government, than that government does not have legitimate authority over him. However, he may choose to become bound to a state if he believes it would serve his interests.

A consent theory would hold that only unanimous consent by the citizens would make that government a legitimate political authority. This is clearly implausible. The solution to this problem that many political philosophers have provided is “tacit consent”, primarily via residence. This seems problematic as well, since it would suggest that all governments are legitimate. Consent theorists need to find some kind of “sign of consent” that we can reasonably assume most men have undertaken.

This sign of consent must be given knowingly, intentionally, and voluntarily. If “consent” is given because of a direct threat or while under duress, it isn’t really consent now, is it? Nor is it consent if the actor didn’t know that he was providing “consent”. The fact is, most of us have never been in a position to express consent to a government authority, let alone actually performed such an act. Here’s where the importance of tacit consent comes into play, where the consent is signaled by remaining silent or inactive.

Under what conditions can silence be taken as a sign of consent, and thus justify political obligations for the consent theorist?

  1. It must be clear in the situation that consenting is appropriate and the individual is aware of this.
  2. There must be a definite period of reasonable duration where objecting is appropriate, and the methods to object must be known to a potential dissenter. The method to object must pertain to goods that people have rights over.
  3. The point at which dissent is no longer possible must be made obvious.
  4. The means acceptable for signaling dissent must be reasonable.
  5. The consequences to a potential dissenter mustn’t be extremely detrimental to the dissenter.

Consider a board meeting, where the chairman says that he will change the time of the meeting unless anyone has any objection. If the meeting attendees remain silent, then they have tacitly consented to the time change. If the chairman does not make clear that he is seeking consent, then this violates condition (1); since the attendees don’t realize that this is a situation where they can provide consent (or not), then they have not even had the opportunity to tacitly consent. Clearly, there is no deliberate and voluntary aspect to this “consent”.

By changing the example slightly, we can show why the above conditions are necessary. Let’s say the chairman says “If you do not support the time change, you can let us know by paying $5.” Because the chairman does not have a preexisting right to this money, then failing to pay cannot signal genuine tacit consent, because it violates condition (2).

Condition (3) guarantees that the attendees’ silence is not simply a reflection of a misunderstanding regarding how much time they have to dissent. The chairman cannot consider the attendees to have consented by claiming that whatever dissent that has occurred past the deadline doesn’t count, when no explicit deadline was provided.

Now, let’s say that the chairman says “If you don’t accept the time change, you can let me know by playing a round of Russian roulette.” This violates condition (4) – clearly, one cannot be considered to have provided tacit consent when the means to do would be so unreasonable. The vagueness in the term “unreasonable” should not impact the strength of the arguments in this section.

Finally, the chairman might say “If you do not accept the time change, I will lock you in a cage in my office.” This violates condition (5). “Consent” that is given due to coercion isn’t really consent, and cannot generate obligations.

Huemer adds several other conditions that must be satisfied for an agreement, or contract, to be considered valid. Explicitly dissenting from an agreement trumps any implicit acceptance. If I go into a restaurant and tell the waitress that I will not pay for my meal but want it anyways (and then she brings it to me), I am not obligated to pay. Normally, ordering at a restaurant would make you obligated to pay, but by explicitly stating that you will not, the waitress could (and should) have simply not served you. Additionally, an action can only be taken to signal consent if the actor can assume that, without performing that act, the scheme would not be forced upon them anyways. If the chairman says “I want to switch the meeting time, and will do so regardless of whether you disagree or not,” then it is not a valid agreement. Finally, a contractual obligation is mutual and conditional; if one side fails to live up to the agreement, then the obligations stemming from it are considered void.

Any possible “social contract” must fulfill these conditions, but it appears to fail on all of them. Explicit dissent doesn’t seem to trump implicit consent, as every anarchist knows. As Huemer puts it:

“…the state’s well-known refusal to recognize explicit dissent calls into question the validity of any tacit consent allegedly given by even those who have not explicitly expressed dissent. Even for those who would not in fact wish to dissent, it remains true that they were not given the option of explicitly turning down the social contract.”

The state will apply the same laws and taxes to you even if you object to government, use its roads, vote, etc. Therefore, failing to object, or agreeing to take part in the political process or accept benefits from government cannot be said to signal consent.

Social contract

A social contract would imply that the state has some obligations toward its citizens (or else the contract isn’t mutual). Presumably, one of these is that the state protects citizens from crime. Suppose you are the victim of a crime that the state could have prevented had it made a reasonable effort to do so. In this case, isn’t the state failing in its mutual obligation? This is exactly the situation we have in the US, where police have no obligation to protect citizens from crime.

Clearly, the social contract would violate our common sense intuitions about contracts and agreements in general.

But let’s return to the idea of tacit consent. Can we even say that most individuals have tacitly consented to their government’s rule? For Locke and many others, tacit consent can be signaled by voting, residing in a state, using public roads, etc. But this means that living within a tyrannical society would still result in individuals being bound to that government. North Koreans perform these actions just as readily as Americans do, but we don’t consider North Koreans to be morally bound to their government.

Here it is important to draw a distinction between an act being a “sign of consent” and an act “implying consent.” When an act “implies consent” it does not necessarily mean that the actor intended to consent or that the act would normally be taken as an attempt to signal consent. Here are ways to imply consent:

  1. An act can lead us to conclude that the actor would consent if the right conditions arose. If he had been asked to, he would have consented.
  2. An act might commit an actor to consenting. Spending hours going on a rant about how anyone who doesn’t consent to their government is an idiot would under normal conditions imply that this individual consents to be governed.
  3. An act might morally bind the actor to the same performance to which he would be bound if he in fact did consent. Joining a baseball game would imply consent to abide by the rules and dictates of the umpires.

These kinds of acts were not necessarily performed as deliberate or intentional acts of consent, and thus we cannot merely assume that they were intended as acts of consent. Remember: an act of consent must be a deliberate undertaking, otherwise any benefits that consent theory has for political obligations no longer exist.

People like Locke would argue that things like using public roads or voting, which imply consent, can be grounds for political obligations. But these instances of implied consent are not typically deliberate undertakings. Although participating in the political process might imply consent, under current arrangements, it is not a sign of consent. The average man votes with minimal awareness and no intention of having it be an act of consent to anything. If these types of actions could ground political obligations, then this would be within the realm of some other theory, not consent theory.

Let’s also note that an attitude of approval does not signal consent and is irrelevant to political obligations. Merely approving or having a positive attitude towards government is not a sign of consent; again, a sign of consent must be a deliberate undertaking. When a man consents to something, he is morally bound, regardless of his attitudes.

It is clear that very few individuals today have signaled (tacit) consent to governmental authority (even if that is only because most people have not had the opportunity to do so), which makes it unsuitable as a general grounds for political obligations. It would show that in most modern states, a trivial fraction of the citizens of any state would be morally bound.

Finally, let’s turn our attention to the argument that continued residence within a specific territory qualifies as providing consent. “Love it or leave it,” as they say. For continued residence to qualify as consent, there would need to be some kind of choice presented which allowed people to voice their dissent, otherwise conditions (1)-(3) above would be violated. For instance, at a particular age, every citizen can be asked whether they agree to be bound by political obligations, and would be allowed to leave without punishment if they do not. In general, residence as a potential signal of consent violates condition (5), that the consequences of dissent must not be too extreme. Man’s most valuable possessions, such as family and friends, would need to be left behind to leave a state, placing a very significant weight in favor of continued residence. As Simmons asks:

“Does a man choose freely to remain in prison because he has a knife with which he can wound himself seriously enough to be removed to a hospital?”

Surely not! The choice procedure specified in order to make continued residence a signal of consent may never be able to overcome condition (5), though theoretically there is room for it to do so. But the onus is on the consent theorist to propose a choice procedure that can be designed to fulfill the above conditions. In addition, the “love it or leave it” argument presupposes that the government has a valid property right over the property within its borders, or else the request to leave involves demanding of someone to sacrifice something they have rights over (like the chairman who insists people pay $5 to dissent).

At this point, we can see that consent theories ultimately come up short.

 

Hypothetical Social Contracts

Another strand of justifications for political obligation would be appealing to a hypothetical social contract. Proponents of these theories argue that people would consent to the state’s authority under certain hypothetical conditions.

In order for this line of argument to succeed, these theorists must show that not only would people consent, but that the hypothetical consent has moral significance that generates obligations. For instance, an unconscious patient is rushed to the hospital and cannot give explicit consent to treatment, but it is reasonable to believe that the patient would consent if he were conscious. Is our consenting to be bound to our governments analogous to this situation?

For hypothetical consent to apply, obtaining actual consent must be infeasible (for reasons other than peoples’ unwillingness to consent in the first place). If a patient is conscious, then the doctors must get their actual (not assumed) consent. Also, the parties’ hypothetical consent must be consistent with their relevant pre-existing values and beliefs. If an unconscious patient had a religious objection to some kind of surgery (that the doctor knew about), we cannot say they have hypothetically consented to surgery just because they are unconscious and cannot make it explicit.

It is possible for the state to get explicit consent to its rule, since (most) of the people that it rules over are not unconscious or otherwise incapable. In addition, there are individuals who have values that are against certain types of government (or government in general), so hypothetical consent cannot be assumed for these individuals. For instance, some people might only consent to a government that is a direct democracy, but if living in a representative democracy, they would not.

One might argue that a hypothetical social contract is valid if all “reasonable” people would consent to it. This consent need not apply to every detail of the state, but it should at least include consent to the basic forms and structures of that government. But there is no reason to think that all reasonable people will reach agreement on the basic principles of government any more than all reasonable people agreeing to the same religion or ethical theory.

The hypothetical social contract theorist must hold that one may coercively impose an arrangement on individuals when they would be “unreasonable” to reject the arrangement. If someone offered you a job that was better in every way than your current job, you might be “unreasonable” to reject it; nevertheless, most people wouldn’t say that this gives the employer the right to coerce you into accepting the job. The unreasonableness of rejecting an offer in the private sphere clearly does not generate a license to coerce, and yet the unreasonableness of rejecting the social contract is enough for many theorists to (inconsistently and incorrectly) claim that the terms of a social contract can be forced on its citizens.

Rawls’s Natural Duty of Justice

John Rawls is without question the most influential political philosopher of the 20th century, so it is worth investigating his arguments more explicitly.

Rawls imagines a hypothetical “original position,” where individuals select the basic social structure that they would like to live under. They do this from behind the “veil of ignorance” – nobody in the original position is aware of their characteristics in the real world. The parties negotiating the principles are unaware of their race, sex, religion, social status, talents, and so on. Rawls says that all reasonable people behind the veil of ignorance would agree to certain principles of government. The cause of disagreements, according to Rawls, are the influence of irrationality, personal biases, and ignorance – all factors that disappear under the veil of ignorance.

anarchy frightens people

But given that reasonable people disagree over many philosophical issues for intellectual reasons, why should we assume that disagreements would be explained away in political philosophy? There is no reason to think that (reasonable and rational) anarchists disagree with Rawls’s principles because of their knowledge of their position in society. While Rawls may have identified certain necessary conditions (people should be rational, free from personal biases, etc.), it is not clear that these conditions are sufficient. But even if one could identify all of the conditions necessary for persuasive moral reasoning, it is possible that the conclusions that Rawls draws are not accurate. For that to be the case, it would be necessary for everyone in the original position to have the complete and correct values – but the correct moral values are highly contentious in philosophy. Therefore, it becomes difficult or impossible for Rawls or any other theorist to determine what principles people would actually agree to.

That is enough to render Rawls’s theory inadequate, but let’s assume away those problems for a moment. Rawls claims that the natural duty of justice binds each member “irrespective of his voluntary acts, performative or otherwise.” (Note that it is this factor that makes it a duty rather than an obligation, but I digress).This duty of justice has two parts:

“First, we are to comply with and do our share in just institutions when they exist and apply to us; and second, we are to assist in the establishment of just arrangements when they do not exist, at least when this can be done at little cost to ourselves.”

But what does it mean for an institution to “apply to us”? We shouldn’t be required to go along with just any institution that forces itself upon us, or which applies to us because of descriptions that we happen to meet. The NAACP doesn’t “apply to” all black people. The Writer’s Guild doesn’t “apply to” me merely because I am a writer. Birth is not an act that I perform or am responsible for, so being born in an area shouldn’t make that institution “apply to” me in a morally significant way.

One must consent or accept benefits or something along those lines in order for the institution to “apply to” me in a morally significant way. The acts that a citizen must perform in order to have the institution “apply” to him in this stronger sense are ones which would generate obligations anyways (under consent or fair play theories, coming up next). What if we tried to get rid of the “application” clause in Rawls’s natural duty of justice? Then we would be obligated to comply with and support every just institution, wherever it exists – an implausible demand, to be sure, and one which violates the particularity principle.

 

The Principle of Fair Play

The principle of fair play suggests that the beneficiary of some kind of scheme has a moral obligation to do his “fair share” to shoulder the burden of the scheme. Others who have cooperated in this scheme have a right to the beneficiary’s submission to the rules.

Obligations stemming from this principle can arise when the following conditions hold (Simmons):

  1. There must be an active scheme of social cooperation.
  2. Cooperation under the scheme involves at least a restriction of one’s liberty.
  3. The benefits yielded from the scheme can be, at least in some cases, enjoyed by someone who does not cooperate (related to public goods/free rider problem).

Under this conception of obligations, citizens are considered to stand in a cooperative relationship with their fellow citizens rather than in an adversarial relationship with their government (as consent theories seem to suggest). This sentiment might be reflected in some common statements that people will make, such as “we are the government.”

In order to assess this argument, we must draw a distinction between merely receiving benefits and accepting benefits. To accept a benefit, one must have wanted it when it was received, or have made an effort to get the benefit, or at least not have actively attempted to avoid getting it. This is the difference between you sneaking onto my lawn while I’m away and mowing it (I receive a benefit), or asking me if you could come by to mow my lawn (I accept a benefit). It would be silly to claim that I “accept” the benefit of you mowing my lawn if you did it while I was completely unaware. And it would also fly against our intuitions to say that we owe this phantom lawn-mower for their services provided. What if I were growing it out for some reason?

With this distinction in mind, we have the choice of saying that the principle of fair play applies to either all beneficiaries of a scheme, or merely all of those who have accepted the benefits of that scheme. Is it enough for someone to have merely received the benefit? Robert Nozick, in “Anarchy, State, and Utopia” provides a thought experiment that convincingly demonstrates that receiving a benefit is not sufficient to bind someone under considerations of fair play.

“Suppose some of the people in your neighborhood (there are 364 other adults) have found a public address system and decide to institute a system of public entertainment. They post a list of names, one for each day, yours among them. On his assigned day (one can easily switch days) a person is to run the public address system, play records over it, give news bulletins, tell amusing stories he has heard, and so on. After 138 days on which each person has done his part, your day arrives. Are you obligated to take your turn? You have benefited from it, occasionally opening your window to listen, enjoying some music or chuckling at someone’s funny story. The other people have put themselves out. But must you answer the call when it is your turn to do so? As it stands, surely not. Though you benefit from the arrangement, you may know all along that 364 days of entertainment supplied by others will not be worth your giving up one day. You would rather not have any of it and not give up a day than have it all and spend one of your days at it. Given these preferences, how can it be that you are required to participate when your scheduled time comes? It would be nice to have philosophy readings on the radio to which one could tune in at any time, perhaps late at night when tired. But it may not be nice enough for you to want to give up one whole day of your own as a reader on the program. Whatever you want, can others create an obligation for you to do so by going ahead and starting the program themselves? In this case you can choose to forgo the benefit by not turning on the radio; in other cases the benefits may be unavoidable. If each day a different person on your street sweeps the entire street, must you do so when your time comes? Even if you don’t care that much about a clean street? Must you imagine dirt as you traverse the street, so as not to benefit as a free rider? Must you refrain from turning on the radio to hear the philosophy readings? Must you mow your front lawn as often as your neighbors mow theirs?”

We conclude that in order to have obligations derived from fair play, one must accept the benefits of the scheme, and not merely receive the benefits. I’ll come back to this in a moment.

It also appears that considerations of fair play would only arise if the beneficiary is also a participant in the cooperative scheme (for instance, Canadians benefit from the rule of law that the American government provides, but they are not obligated to pay US taxes). To be a participant, one must a) pledge support or tacitly agree to be governed by the scheme’s rules, or b) play an active role in the scheme after it is instituted.

In other words, fair play would only bind “insiders” of the scheme. This means that it would only bind those who have already become bound to do their part as “insiders,” leading the principle of fair play to collapse into a theory of consent. But this critique no longer holds once we define a participant as someone who has agreed to accept benefits. One can accept benefits from a scheme without signaling consent, and this would still make that person a participant (“Yes, I’m accepting the benefits of government, but I will NOT pay for it! It is a terrible idea!”). Thus, the theory no longer collapses into consent theory. Bummer.

Let’s return to the idea of accepting benefits. Benefits that we actively resist getting, we get unknowingly, or in ways in which we had no control, appear to be benefits that we did not accept. To accept the benefit, we must have tried (and succeeded) to get the benefit or taken the benefit willingly and knowingly. We cannot regard the benefits as having been forced upon us against our will or think that they were not worth the price we must pay for them. Let us define an “open” benefit as one that cannot be avoided without a change in lifestyle, such as the PA system example that Nozick provides (we can contrast this with “readily available” benefits that can be obtained easily, but require some kind of action to benefit from). In the case of open benefits in a cooperative scheme, in order to be considered to have “accepted” the benefits, one must have understood that the benefits were provided by the scheme itself (as opposed to just being free for the taking, entitlements, etc.).

Most benefits of government are “open,” and thus it is difficult to see how anyone has really accepted them. Many citizens likely don’t believe that the benefits that they receive are worth the price they must pay. Most people don’t think it is worth it to buy loads of bombs and get involved in wars, to pay for police to fight the “drug war,” or otherwise spend money interfering in peoples’ personal lives. And most people regard these benefits not as something arising from the cooperative effort of their fellow citizens, but rather as something that they have “purchased” from the government with their taxes. As Simmons says,

“Even among the thoughtful and “morally aware”, it must be a rare individual who regards himself as engaged in an ongoing cooperative venture, obeying the law because fair play demands it, and with all of the citizens of his state as fellow participants.”

As such, the principle of fair play cannot generate political obligations for the majority of individuals, and is thus not a sufficiently general principle of political obligation. But before moving on to the next theory, we should take a moment to reflect on our intuitions regarding fair play.

As a thought experiment (Simmons provides this example), imagine that homeowners in a given area create a scheme to have everyone maintain their own yards during the week and do some yard work in the communal areas on weekends. Two individuals, Oscar and Willie, refuse to partake in this scheme. Oscar hates clean yards, so he isn’t really benefiting from the scheme. The residents in that area don’t feel like he is freeloading (though they would prefer he leave the community), because he is not benefitting from the arrangement at all.

Willie, on the other hand, does like well-kept yards. But he would prefer to live in an ugly neighborhood than to spend his weekend cleaning. The rest of the residents feel that Willie is obligated to help and that he is not fulfilling these obligations.

scared of those who believe in authority

But then there is Sam, a businessman who comes into the neighborhood for much of the week and benefits just as much from the scheme as Willie does, but also does not contribute. Anyone who would accuse Sam of avoiding obligations would be laughed at. But neither Willie nor Sam has accepted the benefits or made any sort of commitment to the yard-cleaning scheme – they appear to be in largely the same position relative to the scheme. So why is Willie accused of failing to discharge his obligations while Sam is not?

The answer is that peoples’ intuitions about Willie are wrong. Sorry guys. We are born into our political communities (or schemes, as I’ve been calling them), which seems qualitatively the same as having the scheme built up around you, as in the examples of Willie and the PA system.

 

The Principle of Gratitude

Perhaps political obligations are generated from the receipt (and not necessarily acceptance) of benefits of government due to the principle of gratitude, which stipulates that we repay our benefactors. This principle might apply, for instance, to say that we owe our parents because of the benefits they have provided us.

For starters, it is an open question whether or not considerations of gratitude are relevant to moral theory at all. The triviality of most potential debts of gratitude makes it seem as though it would fall under etiquette rather than morality. Nevertheless, let us consider the possibility that debts of gratitude could be morally significant.

There are at least five necessary conditions for an obligation of gratitude to be generated. These conditions are necessary, but likely not sufficient.

  1. The benefit must be granted by means of some effort or sacrifice. If someone benefits us by merely going about their business-as-usual, it is difficult to see how any kind of special debt would be generated.
  2. The benefit must not be given unintentionally, involuntarily, or for any other disqualifying reasons (selfishness, for instance).
  3. The benefit must not be forced (unjustifiably) against the beneficiary’s will.
  4. The beneficiary must want the benefit, or the beneficiary would want the benefit if certain impairing conditions were corrected (for instance, if the person were not drunk).
  5. The beneficiary must not want the benefit not to be provided by the benefactor (they would want the benefits to come from someone else), or the beneficiary wouldn’t feel this way if impairing conditions were corrected.

Let’s say that all of these conditions (and any other necessary conditions) were satisfied with respect to the benefits we receive from government. Even in the case where we are bound by a debt of gratitude to our government, this would not imply that we ought to obey the government, since other countervailing considerations could predominate in that moral deliberation.

Darth Vader not guilty

But political obligation requires a very specific kind of “payment” to the government. Namely, it requires obedience. But while obedience to the law and support for government institutions are one way of discharging a debt of gratitude, they are not the only way. And even if a debt of gratitude required fulfilling a particular need of the benefactor (obedience is something the state needs to exist), this does not mean we must do everything in our power to fulfill this need. Obeying the law most of the time would fulfill this need, so we don’t need to obey the law all the time. But it also isn’t clear why a benefactor having a particular need implies that the beneficiary must fulfill this need in the first place. Therefore, the best that the principle of gratitude can do is to require that citizens do something for their governments, but that something is not the same as a political obligation. It could just mean that we are morally required to say “thank you” to politicians.

But it is also clear that the necessary conditions above are not met by our relationship with our government. For starters, a citizen who honestly claims that he did not want the benefits that government provided, or that he didn’t want to receive them from his government, would have no political obligations under the gratitude account.

Furthermore, condition (1) fails because the government is hardly making any sacrifice or effort on my behalf. The marginal cost of providing me benefits must be negligible. And the state’s money comes from tax revenue (other citizens), so it is not really sacrificing at all. Additionally, condition (2) fails because government rarely if ever has the proper motivations that a debt of gratitude would require. Even in the best states, so much of the benefit that is received is about vote-buying, dispensing political favors, and so on.

We are forced to conclude that the principle of gratitude is unable to generate political obligations.

 

Conclusion

The arguments presented in this essay demonstrate that the most significant accounts of political obligations ultimately fail to accomplish what their proponents want. How can we reconcile this with the clear empirical fact that the majority of people seem to believe that political obligations do in fact exist? Popular opinion would seem to provide at least prima facie evidence that political obligations exist. For the majority of people to be wrong, a cognitive malfunction with the same end result must occur in a large percentage of people. Can we identify a systemic bias that would lead to the vast majority of individuals to draw the wrong conclusions about political obligations?

It seems to me that we can. Numerous psychological principles would tend to steer many individuals in this direction. For instance, the Milgram experiment showed that people are far more likely to obey perceived authority figures than they would have thought, and certainly more than could be thought justified. Obedient subjects rationalized their behavior as “just following orders.” In this experiment, psychologically healthy individuals administered fake electric shocks to someone, despite that person complaining of a heart condition, crying out in pain, and eventually becoming nonresponsive. All it took was for someone in a lab coat to tell them that they should continue administering shocks. Despite showing signs of anxiety and resistance, a full 65% of subjects completed the experiment, thinking they were sending 450 volts of electricity through a presumably lifeless or unconscious body.

People also tend to adjust their beliefs and values in order to make their own choices appear better and deal with the “cognitive dissonance” that arises from acting in ways that are inconsistent with their beliefs. And since we generally obey governments, pay taxes, etc., we may rationalize this action by appealing to political authority. It is nicer to imagine that we are caring and conscientious people who are just doing our duty in society than it is to imagine we are authorizing coercion on our behalf.

There is also the “status quo bias”, where individuals tend to consider any change from a baseline state (the status quo) to be a loss. This creates a tendency to imagine that what our society practices must be true and good.

Finally, a citizen’s relationship with his state fulfills the conditions that psychologists have shown to cause Stockholm Syndrome, where captives develop an attachment or even love for their captors. This is a defensive mechanism that may have survival value in extreme situations, and it might partly explain our acceptance of state power or even generate a certain love and attachment to the state. This issue deserves further exploration, but as I have written about it before, I will leave it at that for now.

Your confidence in your beliefs is too damn high!

Together, these systemic biases can explain the popular support for the idea of political authority, and this support does not provide additional evidence that political authority exists. Even if all governments are illegitimate and political obligations don’t exist, it is quite likely that we would still feel as though they were and do.

A lack of political authority means that we are not obligated to obey the law merely because it is the law (we have other moral reasons not to murder or steal, though), and that agents of the state are not morally entitled to coerce citizens in ways that private citizens are morally prohibited from doing. I’ll close with a great summary from Huemer:

“For any coercive act by the state, we should first ask what reason the state has for exercising coercion in this way. We should then consider whether a private individual or organization would be justified in exercising a similar kind and degree of coercion, with similar effects on the victims, for similar reasons. If the answer is no, then coercion by the state is not justified either.”

Japanese Internment: The Constitution Will Not Protect Americans From Their Government

Japanese Internment

The term “concentration camp” is generally associated with Nazi Germany, but it was actually popularized during the Second Boer War at the turn of the 20th century. While this was not the first time civilians were interned during war (for instance, the United States had an extensive system of concentration camps during the war with the Philippines), it was the first time that the entirety of a nation was systematically targeted and depopulated.

A concentration camp is a compound for noncombatants in a war zone. Auschwitz and the other infamous sites under Nazi control would more accurately be called death camps.

Whatever the term, rounding up innocent civilians and forcing them from their homes is clearly a heinous crime. It is the kind of thing that tyrants do. It is certainly not the kind of thing that happens in America, land of the free and home of the brave.

Of course, this isn’t true. By Executive Order 9066 on February 19th, 1942 (just 74 days after the attack on Pearl Harbor), more than 110,000 Japanese-Americans, primarily US citizens, were sent to concentration camps, where they were forced to live for an average of 3 years. And yes, concentration camp is the correct term here; even FDR and other government officials called them concentration camps.

It is of the utmost importance that we remember what happened to the Japanese living in America during World War 2, because many naïve Americans either forget that it happened or refuse to believe that something similar could happen again. People place entirely too much faith in their government, and the constitution that is supposed to constrain it.

In this post, I will discuss some of the history of Japanese internment, the constitutional issues and failures surrounding it, and how these issues have only grown stronger in the post-9/11 world.

 

Japanese Internment

The vast majority of the 130,000 Japanese in the US during the early 1940s were living on the west coast in California, Oregon, and Washington. Nearly all of them were incarcerated. The majority of those incarcerated were US citizens who had committed no crime whatsoever. According to history professor Roger Daniels,

More than two-thirds of them were native-born American citizens. Their parents, most of whom had immigrated to the United States between 1890 and 1924 (when Congress barred further immigration of Japanese), were “aliens ineligible to citizenship” because of their race. Like all persons of color in the United States, both generations of Japanese Americans experienced systematic discrimination. The immigrant Issei generation, in addition to being barred from citizenship, were legally forbidden to enter a number of professions and trades and, even more importantly for a farming people, were forbidden to own agricultural land in the states where most of them lived. The second or Nisei generation, although legally citizens, were not accorded equal rights. In California, for example, they were segregated in theaters, barred from swimming pools, and limited in employment.”

Immediately after Pearl Harbor, a smaller subset of the Japanese were rounded up based on prior suspicion. Reasonable people could debate whether or not this was justified, but at least it was legal (though regular readers of this blog should understand that “legal” does not equal “moral”).

“The outbreak of war put the Issei generation at peril—they were “alien enemies” and, as such, some eight thousand, mostly men, were interned beginning on the night of 7-8 December 1941…While it is clear that some of those interned did not receive “justice,” their confinement did conform to the law of the land, which had provided for wartime internment since the War of 1812.What happened to the rest of the West Coast Japanese Americans was without precedent in American law…”

We will go over the legal aspects of setting up concentration camps for US citizens later. For now, I’d like to point out a truism about government action and its perceived authority: it’s quite common for people to accept highly questionable directives without resistance. Large segments of the population will even support such measures, be it out of fear or ignorance. There’s no reason to think that, if America begins going down the road towards concentration camps again, it won’t be a popular decision and that there won’t be similar collaborators. Even the victims themselves are likely to go along with it.

“The reaction of the Japanese American people to all of this was remarkable. The vast majority accepted the various government decisions with what appeared to be patient resignation. The leading national organization of the citizen generation, the Japanese American Citizens League (JACL), advocated a policy of acquiescence and even collaboration with the government’s plans hoping by such behavior to “earn” a better place for Japanese Americans in the postwar world. This kind of accommodation is not unknown among other American minority groups.”

A little known fact is that the American government also kidnapped and interned Japanese in Latin America. As described by Natsu Taylor Saito,

“The plaintiffs lost homes and possessions; some were forced to clear jungle in the Canal Zone; and men, women and children were transported under armed guard to prison camps in the Texas desert where they were incarcerated indefinitely without charge or hearing. Families were torn apart and scattered across the globe. Held as hostages, some Japanese Latin Americans were exchanged for U.S. citizens, and others were imprisoned past the end of the war, when the U.S. Immigration and Naturalization Service (“INS”) declared them to be “illegal aliens” and deported them, against their will, to Japan.”

While some of the Japanese were deported at the end of the war, others refused to leave the camps.

“Ironically, in 1945, as the war was ending, the WRA [War Relocation Authority] had great difficulty in getting some Japanese Americans—mostly older members of the Issei generation—to leave the camps. Many had lost their means of livelihood and even though they had once been willing to take the great risk of emigration to a strange land, they were now afraid to return to the places where they had lived for decades.”

This is despite the deplorable living conditions in the camps. Summarized by Brian Masaru Hayashi,

“…they endured four years of cramped living quarters, inadequate facilities, low wages, and a general lack of freedom and privacy. The majority–approximately five out of every six–pledged their allegiance to the United States or promised obedience to its laws over Japan’s when confronted with questions regarding which country the aliens would support and concerning the U.S. citizens’ willingness to serve in the American armed forces during the infamous Loyalty Registration of 1943.

What is this about a “loyalty registration”? The WRA attempted to divide the prisoners into “loyal” and “disloyal” groups and separate them, based on a simple questionnaire. How American! Again, remember that these are US citizens who were not charged with any crimes.

While being rounded up, the Japanese exiles weren’t told where they were going or how long they’d be gone for. They were given a very short period of time to sell their possessions before being interned, so property was usually sold for significantly below market value. In addition, having been forced out of the labor market for several years, Japanese had significantly reduced earnings upon leaving the camps, according to research by Aimee Chin.

“Using individual-level data from the 1970 Census, I find that the labor market withdrawal induced by the internment reduced the annual earnings of males by as much as nine to thirteen percent twenty-five years afterwards. Additionally, internment increased the probability of self-employment, and reduced the probability of holding high-status professional and technical occupations. These findings are consistent with the predictions of an economic model that equates the labor market withdrawal induced by the internment with a loss of civilian labor market experience or a loss of advantageous job matches.”

This study used the youngest birth cohort whose labor would have been affected by internment.

“Older cohorts were probably even more adversely impacted, since they were more likely to be foreign-born, to have held an agricultural occupation prior to internment, and to have owned a farm or small business prior to internment (and therefore possessing more firm-specific human capital).”

All in all, the internment resulted in considerable losses in both property and income for Japanese-Americans.

The experience of life in the camps didn’t help. Families were often split up, and then people were forced to live communally with strangers, including communal latrines without partitions, and communal showers in open areas. There were partitions dividing the rooms most of the time, but they did not extend from the floor to the ceiling. You can easily imagine the privacy issues this would create. Some were housed in animal stables with the stench of manure, and many had no roof. Attempted escape or disobeying orders were punishable by death – and Roger Daniels claims that in at least three separate camps, armed soldiers shot and killed unarmed, incarcerated American citizens.

In the rush to incarcerate such a large number of people, the camps were hastily and shoddily built. Most camps were located in areas with wild temperature changes from day to night and winter to summer. They were located in barren, desolate locations, hardly suitable for the people who were forced to inhabit them.

“In May officials tried to put the best face on the construction of housing and other buildings at the camps. One description called the initial housing “basic”: “That is, the structures are soundly constructed and provide minimum essentials for decent living. As evacuees move in, they will have an opportunity to improve their quarters by their own work.” But feeling pressure from the WRA, civilian construction contractors built the centers very quickly during the spring and summer of 1942. Camp designs were based on military barracks, making them ill suited for family living. And along with the speed came shoddy construction and other deficiencies. A 1943 WRA report described “tar paper-covered barracks of simple frame construction without plumbing or cooking facilities of any kind.” While the spartan buildings may have satisfied international laws, they left much to be desired.

The less than ideal design and construction quality of the housing was magnified by the desert location of the camps. The heat was blistering in the summer and generally came with dust. One internee recalled: “Inside of our houses, in the laundry, in the latrines, in the mess halls, dust and more dust, dust everywhere.” Winters could be equally difficult. For example, at Heart Mountain in northern Wyoming, internees endured temperatures of 30 degrees below zero in the winter. Residents there resorted to banking the earth against their barracks to block the icy winds. The situation was made worse by the hasty evacuation process to the assembly center. Evacuees leaving the milder coastal climate had not been told of their ultimate destinations, and as a result, many failed to pack clothing that would have been appropriate for the bitter desert winters.”

An independent report by someone working in the camps presents a gloomy picture of camp conditions.

“Ralph Smeltzer, a member of the Brethren Church, worked within the camps and produced his own reports documenting the condition of the internees.  His reports present a group of people confined to almost unbearable situations.  Within the April 21, 1942 report, Smeltzer describes how “bathing facilities were quite inadequate, running water was late in being made available and two weeks elapsed before hot water was available.”  In the second report, dated May 5, 1942, a lack of plumbing supplies creates a “serious lack of sanitary facilities” leading to widespread dysentery.  In a third report, dated June 8, 1942, Smeltzer describes a story wherein “some Caucasians set up tables outside the barb-wire fences and handed their Japanese friends additional food over and through the fence.”  None of these conditions are to be found in any War Relocation Authority reports.

In his sixth report, dated November 6, 1942, a full seven and a half months after the camps had opened, Smeltzer describes what continues to provide the internees with low morale and high discontent.  He details how “The rooms are too small.  Two or more families live in many rooms.  An average room is 20 feet by 24 feet” allowing each person in the room a personal space of “4 feet by 20 feet;” the living facilities have “poorly fitting windows and gaping barn-like doors;” “the poorest lumbar is used throughout,” and the “rooms are nearly always cold.”  In essence, living conditions are abhorrent.”

Naturally, this was all done for the sake of “national security.” America was at war, and Japan was the enemy. Of course the Japanese-Americans would be spies, attempting to subvert the war effort! But according to Roger Daniels,

There was not one case of espionage or sabotage by a Japanese person in the United States during the entire war. One West Coast law enforcement officer, California Attorney General Earl Warren, admitted to a congressional committee on 21 February 1942 that there had been no such acts in California, but found that fact “most ominous.” It convinced him that “we are just being lulled into a false sense of security and that the only reason we haven’t had a disaster in California is because it is timed for a different date.” “Our day of reckoning is bound to come,” he testified in arguing for incarceration. Of course, if there had been sabotage by Japanese Americans in California, Warren would have used that to argue for the same thing. As far as Japanese Americans were concerned, it was a no-win situation.”

 

Was It Constitutional?

Those Americans who have a special faith in government because the precious constitution will keep the government honest should study the Japanese internment. It should be obvious to even the most dimwitted American boob that the constitution provided no protection to a huge group of individuals who needed it the most.

Eugene Rostow, an influential legal scholar and former Dean of Yale Law School, wrote a scathing critique of the Supreme Court cases relevant to the Japanese internment. I will draw on his argument heavily here, and I would encourage you to read it yourself if you are into that kind of thing. The emphasis in any quotations included here is mine.

Of fundamental importance to the legal structure of a supposedly democratic society is the relationship between civil and military authority.

“What the Supreme Court has done in these cases, and especially in Korematsu v. United States, is to increase the strength of the military in relation to civil government. It has upheld an act of military power without a factual record in which the justification for the act was analyzed. Thus it has created doubt as to the standards of responsibility to which the military power will be held. For the first time in American legal history, the Court has seriously weakened the protection of our basic civil right, the writ of habeas corpus. It has established a precedent which may well be used to encourage attacks on the civil rights of citizens and aliens, and may make it possible for some of those attacks to succeed. It will give aid to reactionary political programs which use social division and racial prejudice as tools for conquering power.”

As mentioned previously, the internment of the Japanese was justified as a matter of military necessity. Allegedly, spies and saboteurs would be common among the Japanese population. But there was no evidence of Japanese sabotage, and certainly not enough to justify the suspension of habeas corpus, the right to challenge unlawful imprisonment before a court.

“Apart from the members of the group known to be under suspicion, there was no evidence beyond the vaguest fear to connect the Japanese on the West Coast with the unfavorable military events of 1941 and 1942. Both at Pearl Harbor and in sporadic attacks on the West Coast the enemy had shown that he had knowledge of our dispositions. There was some signaling to enemy ships at sea, both by radio and by lights, along the West Coast. It was said to be difficult to trace such signals because of limitations on the power of search without warrant. There had been several episodes of shelling the coast by submarine, although two of the three such episodes mentioned by General DeWitt as tending to create suspicion of the Japanese Americans had taken place after their removal from the Coast. These were the only such items in the Final Report which were not identified by date.” And it was positively known that no suspicions attached to the Japanese residents for sabotage at Pearl Harbor before, during or after the raid. Those subsequently arrested as Japanese agents were all white men. “To focus attention on local residents of Japanese descent, actually diverted attention from those who were busily engaged in espionage activity.””

Even in Hawaii, a far more militarily significant location than the west coast of the mainland US, and even under the martial law that was imposed there, those Japanese who were arrested or interned were done so on an individual basis rather than as a part of a group defined by race. The same was true in France and Great Britain (with respect to their German populations), despite being much closer to the action than America was.

“During the period of three and a half years after Pearl Harbor, military power was installed in Hawaii, constitutionally or not, and the normal controls against arrest on suspicion were not available. The population of Hawaii is 500,000, of whom some 160,000, or 32%, were of Japanese descent. Despite the confusions of the moment in Hawaii, only 700 to 800 Japanese aliens were arrested and sent to the mainland for internment. In addition, fewer than 1,100 persons of Japanese ancestry were transferred to the mainland to relocation centers. These Japanese were arrested on the basis of individual suspicion, resting on previous examination or observed behavior, or they were families of interned aliens, transferred voluntarily. Of those transferred from Hawaii to the mainland, 912 were citizens, the rest aliens. Even under a regime of martial law, men were arrested as individuals, and safety was assured without mass arrests.

In the period immediately after Pearl Harbor there was no special security program on the West Coast for persons of Japanese extraction, and no general conviction that a special program was needed. Known enemy sympathizers among the Japanese, like white traitors and enemy agents, were arrested. There was no sabotage on the part of persons of Japanese ancestry, either in Hawaii or on the West Coast. There was no reason to suppose that the 112,000 persons of Japanese descent on the West Coast, 1.2% of the population, constituted a greater menace to safety than such persons in Hawaii, 32% of the Territory’s population. Their access to military installations was not substantially different in the two areas; their status in society was quite similar; their proved record of loyalty in the war has been the same. Although many white persons were arrested, and convicted, as Japanese agents, no resident Japanese American has so far been convicted of sabotage or espionage as an agent of Japan.

But the courts alleged that it was impossible to investigate individual loyalty in the case of the Japanese – a claim that is clearly wrong. In fact, a major reason the Japanese were targeted was because they were a small enough group to target, unlike the Germans or Italians. You know, the other major Axis powers.

“The second part of the Court’s basic premise of fact was that it was impossible to investigate the question of loyalty individually. As to the validity of this proposition there was neither evidence in the record nor even discussion by the Court to indicate a basis for the conclusion which might appeal to a reasonable man, or even to a choleric and harassed general, faced with the danger of invasion and the specter of his own court martial. The issue was dismissed in a sentence. “We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.” In view of the history of security measures during the war, it would not have been easy to establish strong grounds for such a belief. There were about 110,000 persons subject to the exclusion orders, 43% of them being over 50 or under 15. At the time of the exclusion orders, they had lived in California without committing sabotage for five months after Pearl Harbor. The number of persons to be examined was not beyond the capacities of individual examination processes, in the light of experience with such security measures, both in the United States and abroad…Actually, the exclusion program was undertaken not because the Japanese were too numerous to be examined individually, but because they were a small enough group to be punished by confinement. It would have- been physically impossible to confine the Japanese and Japanese Americans in Hawaii, and it would have been both physically and politically impossible to undertake comparable measures against the 690,000 Italians or the 314,000 Germans living in the United States. The Japanese were being attacked because for some they provided the only possible outlet and expression for sentiments of group hostility.

By the time any cases actually made it to the Supreme Court, the tide of battle had changed and the Allies were winning against the Japanese. The military reality did not justify paranoia against the Japanese. The Supreme Court was tasked not just with seeing whether the concentration camps were allowed when they were made, but also whether they continued to be justified. This makes the failure to strike indefinite detention as unconstitutional all the more bewildering and, dare I say, evil. Instead, the courts basically just abdicated their authority to rule on these kinds of issues.

“In a bewildering and unimpressive series of opinions, relieved only by the dissents of Mr. Justice Roberts and of Mr. Justice ‘Murphy in Korematsu v. United States,”‘ the Court chose to assume that the main issue of the cases – the scope and method of judicial review of military decisions – did not exist. In the political process of American life, these decisions were a negative and reactionary act. The Court avoided the risks of overruling the Government on an issue of war policy. But it weakened society’s control over military authority-one of the polarizing forces on which the organization of our society depends. And it solemnly accepted and gave the prestige of its support to dangerous racial myths about a minority group, in arguments which can be applied easily to any other minority in our society.”

It should be clear that Justice Murphy’s dissent makes far more sense than this. Here it is, so you can judge for yourself:

Being an obvious racial discrimination, the order deprives all those within its scope of’ the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating, them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an ‘immediate, imminent, and impending’ public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law.”

Instead, it was held that people with the same race as the enemy constituted a more significant threat than other people (although as discussed before, this was applied inconsistently).

“The “facts” which were thus held to “afford a rational basis for decision” were that in time of war “residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of different ancestry,” and that in time of war such persons could not readily be isolated and dealt with individually…Imagine applying an ethnic presumption of disloyalty in the circumstances of the Revolution or the Civil War! In the World War and in the present war, soldiers who had ethnic affiliations with the enemy-German, Austrian, Hungarian, Finnish, Romanian, Bulgarian, Japanese and Italian-fought uniformly as Americans in our armed forces, without any suggestion of group disloyalty.”

The justification for Japanese internment is all the more awkward considering the precedent set in the Ex parte Milligan case, which determined that the military did not have the constitutional authority to arrest or try civilians when civil courts were available – as they most certainly were in 1942.

“In Ex parte Milligan the Court said that the military could not constitutionally arrest, nor could a military tribunal constitutionally try, civilians charged with treason and conspiracy to destroy the state by force, at a time when the civil courts were open and functioning. Under the plan considered in the Japanese American cases, people not charged with crime are imprisoned for several years without even a military trial, on the ground that they have the taint of Japanese blood. Why doesn’t the Milligan case apply a fortiori? If it is illegal to arrest and confine people after an unwarranted military trial, it is surely even more illegal to arrest and confine them without any trial at all. The Supreme Court says that the issues of the Milligan case are not involved because the evacuees were committed to camps by military orders, not by military tribunals, and because their jailers did not wear uniforms. It is hard to see any sequence in the sentences. The Japanese Americans were ordered detained by a general, purporting to act on military grounds. The military order was enforceable, on pain of imprisonment. While a United States marshal, rather than a military policeman, assured obedience to the order, the ultimate sanction behind the marshal’s writ is the same as that of the military police: the bayonets of United States troops. It is hardly a ground for distinction that the general’s command was backed by the penalty of civil imprisonment, or that he obtained civilian aid in running the relocation camps.

There are then two basic constitutional problems concealed in the Court’s easy dismissal of Ex parte Milligan: the arrest, removal and confinement of persons without trial, pending examination of their loyalty; and the indefinite confinement of persons found to be disloyal. On both counts, at least as to citizens, the moral of Ex parte Milligan is plain. The Milligan case says little about the propriety of a curfew, or perhaps even of the exclusion orders as such. The military necessity of such steps are to be tested independently in the light of all the relevant circumstances. The Milligan case does say, however, that arrest and confinement are forms of action which cannot be taken as military necessities while courts are open. For such punitive measures it proposes a clear and forceful rule of thumb: the protection of the individual by normal trial does not under such circumstances interfere with the conduct of war.

The various Supreme Court cases (Hirabayashi, Korematsu, and Endo, if you’d like to look up these cases on your own) consider military officials as immune from the normal rules of public responsibility. If a General says something was militarily necessary, even though there is no obvious justification – that’s totally cool! The Justices will simply take their word for it, rather than burdening themselves with such silly things as the factual record.

Rostow summarizes fantastically what the Supreme Court decided in these cases. Take a moment to think about the precedent that was set, and how safe it makes you feel.

“The Japanese exclusion program thus rests on five propositions of the utmost potential menace: (1) protective custody, extending over three or four years, is a permitted form of imprisonment in the United States; (2) political opinions, not criminal acts, may contain enough clear and present danger to justify such imprisonment; (3) men, women and children of a given ethnic group, both Americans and resident aliens, can be presumed to possess the kind of dangerous ideas which require their imprisonment; (4) in time of war or emergency the military, perhaps without even the concurrence of the legislature, can decide what political opinions require imprisonment, and which ethnic groups are infected with them; and (5) the decision of the military can be carried out without indictment, trial, examination, jury, the confrontation of witnesses, counsel for the defense, the privilege against self-incrimination, or any of the other safeguards of the Bill of Rights.

We believe that the German people bear a common political responsibility for outrages secretly committed by the Gestapo and the SS. What are we to think of our own part in a program which violates every democratic social value, yet has been approved by the Congress, the President and the Supreme Court?”

The constitution means nothing.

 

Legal Changes Since 9/11

After September 11th, the US government gained broad new powers, such as mass surveillance of American citizens, in order to wage the so-called Global War on Terror. There is some irony to this, of course, with America being the world’s largest state sponsor of terrorism. But what about the power to detain American citizens?

There have been a handful of Supreme Court cases regarding this issue. In a lengthy but fascinating paper from 2006, Aya Gruber provided some analysis into these cases and how they are tied to those made during the Japanese internment (again, the emphasis in quotations is mine).

First of all, there is the issue of race. It is quite clear that Arabs have been singled out in post-9/11 America. And there has been popular support for race-based measures, even by other minorities.

“After 9/11, the government embraced an overt and extensive policy of racial decision making. The government began to use its broad immigration powers to selectively detain immigrants of Arab nationality and ethnicity. In addition, ethnic Arabs were systematically singled out for police investigation and detention…after 9/11, the public generally accepted the propriety of race-based measures in the name of terrorism prevention. Even African Americans and Latinas tended to favor ethnic and racial profiling so long as directed against “terrorists.”

I mention this not to say it is unjustified (one could make an argument that profiling works, but I am not attempting to investigate the accuracy or moral significance of that claim), but to point out that, yet again, the American public is not particularly concerned about peoples’ legal (and moral) rights when they are scared – and fear is a pretty easy emotion to cultivate. It is quite convenient to blame “outsiders” for problems; this has been the case time and again throughout history.

In any case, since 9/11, Arabs have been subject to incarceration without due process and without any compelling reasons to deny them due process.

“Scholars draw upon similar arguments to criticize the detentions of citizen Yaser Hamdi, citizen Jose Padilla, and the Guantanamo prisoners. Experts maintain that, like the Japanese, these individuals have been subject to incarceration with little or no process, without compelling reasons for denying process. Critics reject the government’s contentions that civilian criminal courts are ill equipped to handle terrorism cases and that detainees are not entitled to the protections of the Geneva Convention. Furthermore, scholars are highly critical of the process afforded to individuals who wish to challenge the detention. Although the Supreme Court ruled that Yaser Hamdi was entitled to a low-level evidentiary hearing to contest his status as an unlawful combatant, that process falls far short of even a pretrial detention hearing in criminal court. In addition, while Supreme Court has stated that U.S. courts have jurisdiction over Guantanamo detainees’ habeas corpus claims, the government continues to urge district courts to abstain from hearing such petitions. Moreover, the D.C. Circuit recently ruled that President Bush’s treatment of the Guantanamo detainees was perfectly legal. Internment invocations are accordingly used to emphasize grave harm of process-less incarceration in the name of national security. Critics warn that “some in government are seeking to resurrect . . . Korematsu to justify the Bush Administration’s present day national security curtailment of civil liberties.””

In the case of the Japanese during WW2, military necessity at least seems like a far more reasonable excuse for the curtailment of civil liberties than modern terrorism, though as discussed earlier, it still was not justified then. But at the very least, it is clear that WW2 was a significantly more dire situation, militarily speaking, than we currently face from terrorism.

“Even assuming that current deprivations are not as bad as in World War II, which is not necessarily true, the current security situation is also not as dire as in World War II, which involved an imminent invasion during a world war. The Roosevelt Administration thus set racist and extremely harmful policy in the face of a massive threat. The Bush Administration set racist and harmful, albeit less sweeping, policy in the face of a much less severe threat. In the wake of 9/11, a single attack carried out by a terrorist group, not a nation, the Bush Administration has initiated two wars and detained thousands of individuals.

With that context, let’s turn our attention to what the more recent Supreme Court rulings mean for civil liberties and detention in America. Hamdi vs. Rumsfeld gives the military the latitude to do anything in the name of terrorism that they could if there were a congressionally declared war. And given the extreme ambiguities in the word terrorism, this basically gives the military war authority from here on out. The Authorization for Use of Military Force (AUMF) issued the week after 9/11 basically counts as a general declaration of war until “the terrorists” are defeated.

“…even interpreting the case in the most restrictive manner as requiring both the AUMF (or a legislative equivalent) and factual war-like conditions to trigger war powers, those requirements still fall well short of a formal declaration of war, as contemplated in Hirabayashi, Korematsu, and Quirin. A formal declaration of war requires specificity on the part of Congress, such that congressional intent to engage in combat with a particular country is easily established. The AUMF, by contrast, generally authorizes “necessary” action against those parties responsible for the 9/11 attacks. Construing the AUMF as the functional equivalent of a declaration of war allows the President to exercise war power pursuant to a vague approval of military force against parties yet unknown. Under this approach, any military action in the name of terrorism prevention triggers the same powers as a declared war.

Moreover, a declaration of war contemplates a finite length of conflict, such that when a peace treaty is executed with the particular enemy country, the war power authority generally ends. In contrast, the AUMF is incredibly broad, allowing for the existence of war powers in perpetuity so long as the executive engages in military actions directed against Al Qaeda or related terrorist groups. As a result, the executive can assert, as the Fourth Circuit did, that any military detention in the name of terrorism prevention is an exercise of a war power…The problem is that in the absence of a formal declaration of war, the issue of the conditions triggering war power becomes more open to interpretation and expansion. Hamdi leaves open the possibility that the AUMF allows for military detention power, even when there is little indication of war-like conditions, for example, during continued military occupation, engagement in isolated skirmishes, ongoing police actions, or deployment as peacekeepers…In the end, the Hamdi case leaves open the possibility that war powers can be invoked absent a declaration of war, or even any congressional approval of military action, and/or in the absence of paradigmatic war-like conditions. This is a far more broad construction of “wartime” than in Hirabayashi, Korematsu, and Quirin…By elevating the current terrorism risk to the level of exigency facing the nation during The Prize Cases, the court endorsed the notion that the government may freely ignore the Constitution in any prosecution of alleged terrorists.

The Hamdi case also allows for the detention of US citizens by the military, even if there are civilian courts that are functioning.

“Unlike the internment cases, Hamdi answered the question of whether war power includes the power to detain U.S. citizens militarily in the affirmative, announcing concretely that the government can detain citizens as enemy combatants. The Court unequivocally stated, “There is no bar to this Nation’s holding one of its own citizens as an enemy combatant.” The Court reasoned that a U.S. citizen, just like a foreign soldier, could be detained during hostilities because “such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.” This reasoning, however, completely ignores the contention, accepted in Milligan, that alternate detention procedures exist for citizens who consort with the enemy. The situation of a U.S. citizen combatant is extremely different from that of a foreign combatant who has not otherwise violated U.S. law and cannot be held except militarily… Consequently, the Supreme Court implicitly sanctioned the view that war powers include the ability to detain citizens for aiding the enemy domestically or abroad. This is a far more direct empowerment of the government, and hence a greater restriction of civil liberties, than the position represented in the internment cases.

So long as the vaguely defined “war on terror” continues, the US military has the authority to detain citizens as enemy combatants so long as they accuse that citizen of being a terrorist. It is very easy to be considered a terrorist in America – disliking the government can be enough. I’ll get into this more later.

The Supreme Court’s decision that the AUMF was sufficient congressional authority for the President to act and for war powers to be invoked is absurd.

“Turning to the language of the AUMF, the legislation is silent on military detention. The legislative history also fails to indicate that by passing the AUMF, Congress intended to authorize any military detention, much less the detention of U.S. civilians. In fact, some legislative history suggests that Congress was keenly aware of the differences between the AUMF and a declaration of war, which triggers presidential war powers. House Representative Conyers, for example, stated, “By not declaring war, the resolution preserves our precious civil liberties. This is important because declarations of war trigger broad statutes that not only criminalize interference with troops and recruitment but also authorize the President to apprehend ‘alien enemies.’”…As a result, the Supreme Court was forced to engage in an incredible feat of interpretive grasping to find that the AUMF authorized Hamdi’s detention. Bypassing both plain language and history, the Court asserted that given the background of the law of war, any authorization of military force must necessarily include endorsement of military detention, even citizen detention.

Thus, like the internment cases, Hamdi did not grant unilateral authority to the President to detain citizens militarily. Unlike the internment cases, however, it expanded the President’s ability to act without specific congressional approval. In the internment cases, the Court was careful to make sure that Congress did actually consent, not just to the war in general, but to the specific policies at issue in the cases. The Court in Hamdi did nearly the opposite. Rather than trying to ascertain the true intent of Congress, the Court was determined to find congressional assent by hook or crook so as to avoid addressing the problematic issue of executive unilateralism. In attempting to avoid the issue, however, the Court generously bolstered the executive’s power. The Court set up a precedent whereby the President may unilaterally initiate a program of citizen detention, which is constitutional so long as there has at some point been congressional authorization of military force against those with whom the citizen is alleged to be a sympathizer.

On the bright side, the process by which detained citizens can challenge their status has arguably improved, at least on the basis of race. But practically speaking, it is still nearly impossible to challenge the status of “enemy combatant.”

“If the government were to use the enemy combatant category to sweep thousands of Arab Americans into military detention asserting that they aided Al Qaeda, Hezbollah, the Taliban, insurgents in Iraq, or other disfavored groups, at least those detainees would have some ability to challenge their statuses as enemy combatants. Remember, however, that internment policies technically allowed the Japanese to demonstrate their loyalty and apply for release. For the Japanese, this was an option, but largely an unexercisable option. Likewise, for potential terrorism detainees, it is a near impossible hurdle for a military detainee (especially if there are thousands) to overcome a presumption of enemy status and disprove conclusory hearsay statements, particularly if such statements involve purportedly sensitive terrorism intelligence.

And, notably, the conditions of detainees in the War on Terror are vastly worse than those of the Japanese who were interned, as deplorable as those conditions may have been. For instance, rectal feeding, waterboarding, sleep deprivation, and other torture tactics you’d expect to see in North Korean prisons. Of course, the extent of the torture wasn’t known when this legal argument was written, but the detention conditions were still clearly terrible.

“Hamdi and Padilla, perhaps as a product of the nonparadigmatic nature of their capture, were separated from members of the forces with whom they were alleged to have associated, stripped of their customs, and held in jail. While such incarceration might be justified if Hamdi and Padilla were dangerous criminal defendants who posed a risk of flight, the government has insisted that the nature of the detentions is not criminal, and the Court expressly ruled that Hamdi’s detention was justified solely by military necessity. The Court, however, did not state that Hamdi’s military detention must accord with the dictates of the Geneva Convention. Obviously, the Court was not unaware that Hamdi had been detained in a jail, in lockdown condition, without any access to family. By endorsing such detention, without qualification, the Court implicitly adopted the more conservative view that military detention could be as, or more, severe than criminal incarceration.

Not only that, but the terrorism cases also allow for much lengthier duration of detention. At least during the Japanese internment, the war was clearly defined and the internment could not continue after the cessation of hostilities.

“Consequently, to avoid sanctioning indefinite detention, it was imperative for the Court to set up a viable proxy for a peace treaty that would signify the termination of war for the purpose of ending the war power. A logical route might have been to deem the regime change as the triggering factor, given that the enemy fighter could not rejoin an army that no longer existed. The Court, however, instead used the presence of troops engaged in fighting to deny that hostilities had ended sufficiently to release military prisoners. Although the Court formally justified Hamdi’s detention by the need to prevent him from rejoining the enemy army, by the time the Court reviewed Hamdi’s case the enemy army had already fallen to U.S. forces. Thus, upon closer examination, the logic of detaining Hamdi was not the stated reason of preventing him from rejoining an enemy army, but rather preventing him from acting on any decision he might make in the future to participate in insurgent activity…The concept that wartime detentions may continue after the fall of the enemy government and installation of a U.S.-friendly government goes beyond the scope of even the Ludecke opinion and certainly beyond the time frame contemplated in the internment cases. The Ludecke opinion approved of limited exercise of war-related police powers in the months following termination of the shooting war. The Hamdi case greatly expands this principle to full detention years after the enemy government has fallen. This broad definition of the length of military detention has precedent neither in domestic law nor customary international law….Had the Court adopted a similar approach after World War II, the United States could have detained “security threats”—for example, unhappy Japanese internees—for many years after the shooting war, so long as the United States continued to maintain troops in Japan. As a result, the Hamdi decision greatly extended the duration of wartime and allowed for the possibility of prolonged, if not indefinite, detention, even if the military to which the detainee belonged had been dismantled.”

To summarize,

“The Court made it much easier for the political branches to exercise war power and detain individuals outside normal criminal processes. It definitively approved of military detention of U.S. citizens, resolving the conflict between Quirin and Milligan in the least progressive way, and cementing the precedential value of the oft-criticized Quirin opinion. While not going so far as granting the executive unilateral authority to exercise wartime detention powers, the Court greatly reduced the role of Congress in authorizing detentions. Relying on the sparse AUMF and the “clear” law of war, the Court required neither explicit nor implicit congressional approval for citizen detention. The Court moreover approved of military detention that was carried out, not according to the dictates of the Geneva Convention, but rather in jails, solitary confinement, and criminal conditions. Finally, the Court’s “troops on the ground” analysis allowed military detention to be prolonged beyond what was contemplated in the World War II cases and possibly indefinitely.”

 

The Constitution: Basically Worthless

People might look back at the internment of the Japanese in concentration camps and write it off as a piece of history that could never be repeated in a Free CountryTM such as America, certainly not in days like these, where the public is more progressive and enlightened. But the legal situation today is actually far worse than it was during WW2, and it would be trivially easy for a return of concentration camps – or worse, under the right conditions.

Now, I’m not the kind of person who is going to claim that there will be FEMA death camps in America in the next few years or anything like that. But those who do believe this are hardly the crackpot conspiracy theorists that your average American makes them out to be. The fact is, mass indefinite detention of American citizens without charge by the military is something that would be completely legal for the US government to do. The National Defense Authorization Act has made it clear that the US government has the “right” to indefinitely detain American citizens without charge.

Woodrow Wilson imprisoned Socialist Party leader Eugene V. Debs simply because Debs had been making speeches against the war. Abraham Lincoln imprisoned Confederate sympathizers without trial. Those Presidents who have done this are some of the most celebrated ones in US history! Former Chief Justice William Rehnquist, in his 1998 book, stated that “There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently than their predecessors.” And current Supreme Court Justice Antonin Scalia remarked that you are “kidding yourself” if you don’t believe that internment camps will one day return to America.

This shouldn’t be all that surprising to anyone at this point. Obama, a scholar on constitutional law from Harvard University, has ordered the murder of multiple American citizens without trial. And other than a handful of anti-drone activists, Americans have accepted this uncritically and even supported it. And why wouldn’t they? Anything to stop The Terrorists!

Of course, it’s pretty easy to be considered suspicious of being a terrorist these days. I’ll quote myself here:

“…it is very easy to be considered an “extremist” or a “suspicious” person by the US government. For instance, the FBI considers people who care about online privacy to be potentially suspicious of terrorist activity, and even likened pro-privacy supporters of Edward Snowden to a “digital al-Qaeda.” And here is a list of 72 ways the government can consider you an “extremist” in America, including talking about individual liberties, wanting to make the world a better place, being a returning veteran, and believing in a right to bear arms.”

Remember the precedent that the internment cases set: political opinions, not just overt criminal acts, are enough to justify a citizen being detained during wartime – which, nowadays, is all the time. Given the powers of mass surveillance that the government has now that were completely unavailable in the 1940s, this should be a terrifying prospect for every American. And consider this: the Department of Defense Law of War manual states that journalists can be considered “unprivileged belligerents,” giving them even fewer protections than enemy combatants!

In 2012, there was a leaked military document called “Army Field Manual 3-39.40: Internment and Resettlement Operations” which provides specific guidance for interning Americans on US soil – including how to silence political activists.

Clearly, the constitution of the United States does not offer the protection that so many people assume. No constitution can. For a constitution to work, there would need to be an adequate mechanism in place to ensure compliance with it, but this is not and cannot be the case. No other organization has the power to coerce the government itself, so the government is responsible for enforcing its own compliance with the words on a piece of paper. The Supreme Court cases regarding Japanese internment and detaining “terrorists” have clearly demonstrated that this simply isn’t going to happen.

Democracy in general is a utopian myth, but that is particularly evident in the United States.

Environmental Issues: An Anarchist Perspective, Part 1

We humans live on planet Earth (for the time being), and utilize resources that have existed long before we came around. Many of these resources are scarce – due to their finite supply and importance to our well-being, the way these resources are managed is of highly related to our ability to survive and thrive.

As such, there is a very strong prima facie case for protecting the environment. The modern environmentalist movement considers itself the vanguard attempting to save the environment from greedy, ruthless capitalists, who are more than happy to destroy the environment in the pursuit of profit. To do so, they suggest assorted government policies, ranging from simple regulations to the intentional extermination of billions of humans.

No doubt, the institutional structure that we live under today, with giant corporations protected by big government, has led to significant environmental distress. Nevertheless, the effect of capitalism and market-based economies has been among the greatest boons for environmental protection.

This may at first seem like a contradiction, but in this article, I intend to argue that it is in fact private property rights that, as an institutional structure, are necessary for the protection of our environment. The political system that fully embodies a respect for private property is called “anarchy,” “anarcho-capitalism,” or “voluntaryism.”

As an anarchist, I often hear people object to my beliefs on the basis that pollution would run rampant and the environment would be destroyed if anarchy were put into practice. This is the most common concern people have, second only to how security and law would work in an anarchist society. For some reason, it is very difficult for most people to envision how the environment might survive without the protection of the government. In reality, however, the government is the greatest enemy of the environment, and markets are the most effective way of preventing environmental devastation largely caused by the state and its crony-capitalist cronies.

Since this is an extremely long post (over 22,000 words), I will present a brief outline of the content to follow, which is divided into two separate posts. First, I describe the modern environmentalist movement and the fallacies underlying their dogma, particularly the idea that nature has some kind of “intrinsic value.” Next, I document how governments are far and away the worst polluters on the planet. I then walk through multiple cases in the US where government policies have led to environmental catastrophe, and thoroughly document the extreme environmental destruction that socialism has caused in the world. Then I will present an alternative paradigm: respect for private property rights. I provide some historical background on how the legal climate for environmental issues has changed, and then describe the way that issues surrounding environmental damage ought to be handled. Using this private property paradigm, I discuss numerous environmental issues that could be more easily resolved under anarchy as opposed to resorting to state coercion. In the second post, I describe what is generally considered the biggest and most challenging environmental issue of our time: global warming. I discuss why the narrative surrounding global warming is heavily warped and politicized, why it is valid to be skeptical of the mainstream position, and how global warming could be addressed far more adequately under anarchy than via government.

 

Environmentalism: How Much Does “The Environment” Really Matter?

remember to shower

As alluded to before, environmentalists differ in terms of how extreme their proposals and intentions are. The majority of people who consider themselves environmentalists are moderate – they are outdoorsy-types who want to ensure that there are still green spaces for their children, for instance. But then there are environmental extremists, who think that humanity is a great scourge on this world, and that the planet would be better off without us. They go as far as to recommend the intentional extinction of humanity. In fact, Australian government-funded environmentalist propaganda is telling children that they should die at the age of 9 so that they don’t use more than their “fair share” of resources!

Surely, most of the people reading this are not in the latter category. That being said, both rely on the same fallacy to arrive at their policy conclusions – it’s just that the more extreme take this fallacy further. Modern environmentalists all believe that nature has intrinsic value, a notion that I will soon demonstrate is absurd.

But the alleged intrinsic value of nature is just one tenet of the environmentalist religion. Consider the narrative of environmentalism, which claims that there was an initial Eden, a sacred environment that was pure until humanity destroyed it in a fall from grace. Supposedly, native people lived happy lives in perfect peace with the environment before capitalism came along. Of course, this ignores the terrible record of indigenous people as stewards of the environment, and the horrid conditions in which most of them lived. As the late author Michael Crichton said:

“In short, the romantic view of the natural world as a blissful Eden is only held by people who have no actual experience of nature. People who live in nature are not romantic about it at all. They may hold spiritual beliefs about the world around them, they may have a sense of the unity of nature or the aliveness of all things, but they still kill the animals and uproot the plants in order to eat, to live. If they don’t, they will die.”

And then there are the doomsday predictions that are repeatedly proven wrong. This happens time and again, but like a religious cultist whose doomsday date passed without incident, the environmentalist will just pick a new date and push their prediction further down the line. Consider the mass starvation that was predicted due to population pressures, the resource depletion that always seems right around the corner, and global cooling in the 1970s which has now morphed into global warming. Another example:

“Near the end of the 19th Century…city planners warned of the impending danger of the streets being covered with dozens of feet of horse manure as the population of humans and animals would surely grow in those imperiled cities. The reviled automobile, it turns out, saved us from that horrible fate.”

Ironic, right? But the most important of the tenets of environmentalism is the sacredness of nature, the value that nature possesses in and of itself. But if nature has intrinsic value, what does this imply? It isn’t only humans who act in some way to “harm” nature or the environment, yet it seems only humans are held responsible. As George Reisman argues (emphasis mine):

“The doctrine of intrinsic value is itself only a rationalization for a preexisting hatred of man. It is invoked not because one attaches any actual value to what is alleged to have intrinsic value, but simply to serve as a pretext for denying values to man. For example, caribou feed upon vegetation, wolves eat caribou, and microbes attack wolves. Each of these, the vegetation, the caribou, the wolves, and the microbes, is alleged by the environmentalists to possess intrinsic value. Yet absolutely no course of action is indicated for man. Should man act to protect the intrinsic value of the vegetation from destruction by the caribou? Should he act to protect the intrinsic value of the caribou from destruction by the wolves? Should he act to protect the intrinsic value of the wolves from destruction by the microbes? Even though each of these alleged intrinsic values is at stake, man is not called upon to do anything. When does the doctrine of intrinsic value serve as a guide to what man should do? Only when man comes to attach value to something. Then it is invoked to deny him the value he seeks. For example, the intrinsic value of the vegetation et al. is invoked as a guide to man’s action only when there is something man wants, such as oil, and then, as in the case of Northern Alaska, its invocation serves to stop him from having it. In other words, the doctrine of intrinsic value is nothing but a doctrine of the negation of human values. It is pure nihilism.”

It is often held that man is an agent of destruction of nature, but isn’t man a part of nature? If a beaver is allowed to chop down trees, why should I not be allowed to?

Beyond the nonsense inherent in this doctrine, considering nature to have intrinsic value makes it impossible to rationally guide ourselves with respect to how to treat the environment. How are we supposed to behave if we cannot use nature for our own ends? And if we are allowed to use nature to further goals of man, then – if nature has intrinsic value and we can’t discriminate between various elements of nature – how are we to determine which environment-altering behaviors are kosher and which are not? We live in a world of scarcity, so some means of determining priorities is necessary.

Nature does not have intrinsic value. This doesn’t imply that the natural world doesn’t have value, of course, but rather that its value is related to the ends that nature can be used to achieve. I don’t intend to belabor this point philosophically; I just mean to point out that there is nothing immoral about man manipulating his natural environment to achieve his goals.

In fact, it seems that this is an inevitable result of existing. Humans act in order to achieve desired aims, and we use existing means, including that of the surrounding environment, in order to do so.

Despite this, an environmentalist might argue, it is still in man’s best interest to preserve the natural environment and avoid depleting the resources that we need in order to improve our lives. It’s certainly true that wasting resources is, well, wasteful. At any given moment, it is no doubt the case that there are only so many resources available for human use. But this static view ignores the fact that as human knowledge of the physical world increases (and as capital accumulates, allowing us to take advantage of this knowledge), the amount of resources available for our use increases….arguably, without a practical limit. George Reisman spells this out explicitly:

“And this brings me to what I consider to be the revolutionary view of natural resources that is implied in Menger’s theory of goods. Namely, not only does man create the goods-character of natural resources—by obtaining knowledge of their useful properties and then creating their useability and accessibility by virtue of establishing the necessary command over them—but he also has the ability to go on indefinitely increasing the supply of natural resources possessing goods-character. He enlarges the supply of useable, accessible natural resources—that is, natural resources possessing goods-character—as he expands his knowledge of and physical power over nature.

The prevailing view, that dominates the thinking of the environmentalists and the conservationists, that there is a scarce, precious stock of natural resources that man’s productive activity serves merely to deplete is wrong. Seen in its full context, man’s productive activity serves to enlarge the supply of useable, accessible natural resources by converting a larger, though still tiny, fraction of nature into natural resources possessing goods-character. The essential question concerning natural resources is what fraction of the virtual infinity that is nature does man possess sufficient knowledge concerning and sufficient physical command over to be able to direct it to the satisfaction of his needs. This fraction will always be very small indeed and will always be capable of vastly greater further enlargement.

“Nature presents the earth as an immense solidly packed ball of chemical elements. It has also provided comparably incredible amounts of energy in connection with this mass of chemical elements. If, over and against this massive contribution from nature stands motivated human intelligence—the kind of motivated human intelligence that a free, capitalist society so greatly encourages, with its prospect of earning a substantial personal fortune as the result of almost every significant advance, there can be little doubt as to the outcome: Man will succeed in progressively enlarging the fraction of nature’s contribution that constitutes goods; that is, he will succeed in progressively enlarging the supply of useable, accessible natural resources.”

Consider the many resources we use today that wouldn’t have necessarily been considered resources many years ago. Petroleum wasn’t a natural resource until humanity made it one. The same is true of iron, aluminum, copper, bronze, zinc, gold, silver, and uranium. But even after discovering the goods-character of these resources, advances in technology have allowed us to mine with less effort or at greater depth, find more of the resource where it wasn’t previously visible, access the resource from previously inaccessible locations (offshore oil drilling, for instance), and so on.

The solution to the “problem” of limited resources is to increase the amount of resources, by improving the state of human knowledge and through capital accumulation to allow us to take advantage of this knowledge. Contrast this with the “solution” presented by environmentalists: use less stuff. How about instead of impoverishing us all, we invent ways to adapt to environmental change and the use of resources?

“If we destroy the energy base needed to produce and operate the construction equipment required to build strong, well-made, comfortable houses for hundreds of millions of people, we shall be safer from the wind and rain, the environmental movement alleges, than if we retain and enlarge that energy base. If we destroy our capacity to produce and operate refrigerators and air conditioners, we shall be better protected from hot weather than if we retain and enlarge that capacity, the environmental movement claims. If we destroy our capacity to produce and operate tractors and harvesters, to can and freeze food, to build and operate hospitals and produce medicines, we shall secure our food supply and our health better than if we retain and enlarge that capacity, the environmental movement asserts.”

If global warming is happening, we should develop more and better air conditioners. Instead, the environmentalists would have us destroying industrial civilization, condemning millions or billions to starvation and death.

As alluded to earlier, environmentalists have a habit of catastrophizing the impact of environmental issues, and of ignoring the consequences of their proposed policy fixes.

“Consider, for example, the recent case of Alar, a chemical spray used for many years on apples in order to preserve their color and freshness. Here, it turned out that even if the environmentalists’ claims had actually been true, and the use of Alar would result in 4.2 deaths per million over a seventy-year lifetime, all that would have been signified was that eating apples sprayed with Alar would then have been less dangerous than driving to the supermarket to buy the apples! (Consider: 4.2 deaths per million over a seventy year period means that in any one year in the United States, with its population of roughly two hundred and fifty million people, approximately fifteen deaths would be attributable to Alar! This is the result obtained by multiplying 4.2 per million times 250 million and then dividing by 70. In the same one-year period of time, approximately fifty thousand deaths occur in motor vehicle accidents in the United States, most of them within a few miles of the victims’ homes, and undoubtedly far more than fifteen of them on trips to or from supermarkets.) Nevertheless, a panic ensued, followed by a plunge in the sale of apples, the financial ruin of an untold number of apple growers, and the virtual disappearance of Alar.”

Contrast this with the miracle of the market.

“Famine has been ended, because the industrial civilization so hated by the environmentalists has produced the greatest abundance and variety of food in the history of the world, and created the transportation system required to bring it to everyone. This same hated civilization has produced the iron and steel pipe, and the chemical purification and pumping systems that enable everyone to have instant access to safe drinking water, hot or cold, every minute of the day. It has produced the sewage systems and the automobiles that have removed the filth of human and animal waste from the streets of cities and towns.”

 

Governments Are The Largest Polluters

One of the great ironies of environmentalism is that its proponents’ solutions always seem to involve government action. And yet they routinely ignore the god-awful record that governments have as stewards of the environment.

In fact, the US federal government is the largest polluter on the planet, but state governments are pretty bad too. The US Department of Defense is the largest contributor to this pollution. Military bases, of which there are a gazillion, pollute their locations heavily, which causes serious health issues among soldiers and their families. During wars, the government has leveled forests using chemicals and big machines. The US government is also the 4th largest greenhouse gas emitter in America, trailing only behind energy companies. But the environmental impact of the government goes beyond directly polluting:

“The federal government provides subsidies to many activities through direct transfers as well as through the provision of free or below-cost access. For example, recreational activities in the national forests and parks are heavily subsidized; most users pay low (or no) fees. Such subsidies encourage people to “consume” more of those public resources than they would be likely to in a market system. In addition, subsidies for favored providers of environmental amenities tend to squeeze out private alternatives. Other well-known subsidies that can unintentionally degrade the environment include agricultural subsidies, grazing subsidies, and water and hydropower project subsidies, among others. Unfortunately, the political process finds it almost impossible to deal honestly with the issue of subsidies. Only free markets are able to assess the full costs of resource use. Until property rights-based policies are instituted, environmental issues – from waste disposal to wetlands protection – will be poorly managed.”

There are also massive subsidies to Confined Animal Feeding Operations (CAFOs), which leads to environmental issues with excess manure. The government botches the management of forest fires by letting deadwood accumulate, leading to massive blazes.

Just recently, the EPA, which is supposed to be protecting the environment, dumped millions of gallons of toxic waste into the Animus River in Colorado, which may have been done intentionally for money! Predictably, leading environmentalist groups have been covering for the EPA on this one, even though they vehemently attack private companies for far less.

Some additional examples would be instructive. Take Seattle’s Ravenna Park. It was once privately owned and well-preserved. But the local government was afraid that it wouldn’t continue to be preserved, so they took over and then proceeded to let it fall into disrepair.

“At the turn of the twentieth century it [Ravenna Park] was a privately owned park that contained magnificent Douglas firs. A husband and wife, Mr. and Mrs. W. W. Beck, had developed it into a family recreation area that, in good weather, brought in thousands of people a day. Concern that a future owner might not take proper care of it, however, caused the local government to “preserve” this beautiful place. The owners did not want to part with it, but the city initiated condemnation proceedings and bought the park.

But since they had no personal property or income at stake, local officials allowed the park to deteriorate. In fact, the tall trees began to disappear soon after the city bought it in 1911. A group of concerned citizens brought the theft of the trees to officials’ attention, but the logging continued. Gradually, the park became unattractive. By 1972 it was an ugly, dangerous hangout for drug users. The Becks, operating privately at no cost to taxpayers, but supported instead by user fees, had done a far better job of managing the park they had created.”

The BP Gulf Oil Spill

In April 2010, the Deepwater Horizon oil rig in the Gulf of Mexico began gushing oil into the ocean, and wasn’t successfully capped for 87 days, with about 5 million barrels of oil discharged in total. The company that owned this rig, BP, was trashed by environmentalists and the media in the aftermath of this tragedy. What they ignore is the crucial role of government regulations that made this spill so much more likely. Of course, much of this legislation was likely the result of oil industry lobbying, so the corporate-state nexus is really the blameworthy institution here, not merely the government.

How did regulation help lead to the worst accidental oil spill in history? The Oil Pollution Act of 1990 established a measly $75 million liability cap on oil spills, which created an immense moral hazard by reducing the risk to oil companies while drilling, and reducing their incentive to ensure the safety of their actions. Without a cap like this, oil companies would be responsible for the full cost of the damages that they cause, which would make them far more cautious and safety-prone.

It gets worse. Why was BP drilling in such a deep area to begin with? Wouldn’t it be far safer to drill closer to the surface? Unfortunately, oil companies are often barred from exploring less risky oil-rich areas.

“Because most private lands have been explored, public lands offer the most potential for oil and gas development. However, the NIMBY [“not in my back yard”] principle has significantly restricted development on those lands. According to 2008 Energy Department figures, nearly 80% of potentially oil-rich offshore lands are off limits to oil and gas development, and 60% of onshore lands are.”

You see, politicians don’t like those unsightly oil rigs near their territory, so they explicitly disallow it.

“I’ve seen the total number of platforms estimated at around 4,000, with up to 100 drilling rigs operating at a time. One of the interesting things to me about this map is that it shows no rigs in the eastern part of the Gulf of Mexico. It turns out this is due to a moratorium on drilling first put in place by President Bush in 1990. In 1998, President Clinton extended the moratorium until 2012. So, one government intervention has resulted in a situation in which drilling operations are constrained west of the border between Alabama and Mississippi, with a concentration of drilling off the coast of Louisiana.”

And then there are the federal subsidies (“royalty relief”) for drilling in deep waters rather than water closer to shore. These subsidies result in a five-fold increase in the incentive for companies to drill in deep water rather than shallow water.

It’s not just in America where mismanagement of land and regulation causes issues with oil spills. In Nigeria, for instance, state ownership of oil assets has led to repeated spills.

Love Canal

My favorite example that demonstrates the ineptitude of governments with respect to the environment is the infamous Love Canal fiasco. Investigative reporter Eric Zuesse documented the whole story here, but I’ll provide a summary.

The Love Canal was a site in upstate New York that was owned by Hooker Chemical Co., which they used as a dumping site for toxic chemicals (the Army was also dumping toxic waste at Love Canal, but for some reason people only blame Hooker). The Niagara Falls Board of Education desperately wanted to own this land to build a school on, but Hooker did not want to sell it. Nevertheless, the BoE used their power of eminent domain to threaten Hooker with seizing the land, so it was ultimately sold to the government for one dollar. The sell was done specifically so that there would be a contractual record where Hooker could spell out the dangers of building on this land for all future owners (if the land were seized by eminent domain, Hooker would have been free of liability for the chemicals anyways, so it was with the public good in mind that they sold instead). Hooker made it very clear to the BoE that there were chemicals underground and that no building should take place on that site beyond mere surface construction (like a park). When the BoE tried to sell the site to real estate developers in 1957, Hooker came to those meetings and forcefully advised against it. Ultimately, Niagara Falls ended up building a school on this land anyways, disturbing the chemicals and letting the seep into the community that was soon built there.

“Practically every level of government has been involved over the years in violating either the Canal’s walls or the protective clay cover that Hooker says it had laid four feet thick on top of its wastes. Even the New York State Department of Transportation, which now shares major responsibility for remedial work on the Canal with New York’s Department of Health and the federal Environmental Protection Agency, ripped into the Canal in 1968, at the southern end where Hooker had done most of its dumping. In the construction of an expressway and the moving of Frontier Boulevard northward, chemicals were contacted, and Hooker was requested to, and did, cart away 40 truckloads of chemical wastes. Just as Hooker had worried in 1957, as time passed the possible hazards of construction on the property had been put totally out of mind.”

Such ineptitude! But the narrative about what occurred at Love Canal was that a greedy corporation took advantage of and poisoned a community.

“Despite the popular myth that Love Canal is the result of a single corporation’s greed and heartlessness, the actual explanation is far more complex. It’s clear to anyone who digs into this matter that Hooker may well have been the only party to the affair to behave responsibly. Hooker chose an exceptionally fine chemical dumpsite; it ceded the dump to the School Board under circumstances in which the threat of condemnation was real and the reality of condemnation was already under way for adjoining properties; it warned the School Board that the chemicals could kill and insisted that the Board pass this warning on to any subsequent owner of the property; it urged the Board not to construct the school or any other buildings directly over the Canal; it protested the prospect of any subsurface construction on the Canal.

These warnings were repeatedly ignored, however, by the governmental bodies involved in desecrating this chemical tomb: the School Board itself, the City Planning Board, the city engineer, and the state Department of Transportation. In addition, other governmental agencies have been busy spreading misinformation about the Canal: the Niagara County Health Department, the state Department of Health, the US Environmental Protection Agency, and the US Department of Justice.”

And the icing on the cake is that the EPA has since then positioned private industry as blameworthy and the government as the savior. They need to justify their existence somehow.

Socialism And The Environment

Environmentalists, as I said before, always seem to think that environmental protection requires an expansion of government. If this were true, one might expect that socialist countries would have a sterling record of environmental stewardship, right? Luckily, since the fall of the Soviet Union, we have plenty of case studies to verify that this is not the case.

Before diving into these examples, let’s reflect for a moment on why socialism might prove to be a poor economic system from an environmental perspective. In the Soviet Union and other socialist countries, there were explicit protections for the environment both at the legal and ideological level. However, without a profit motive operating, industrial managers were not sensitive to economic incentives to protect the environment. Ed Dolan describes several ways in which the socialist system leads to economic harm:

“Where there are property rights, there is always an owner to resist trespass, whether by people on foot or noxious chemicals wafting through the air. True, the legal system doesn’t work perfectly. Sometimes owners can’t adequately protect their rights, but the rights are there. Furthermore, where there is widespread ownership of at least small scraps of property, respect for the property rights of others also becomes widespread, although, alas, not universal.”

Private property is central to the reason why markets protect the environment better than government, but there are also political realities that make socialist countries ignore environmental concerns.

“In a socialist system, producers have a stronger grip on the levers of political power. After all, as state enterprises, they are not mere lobbyists—they are themselves a part of the government structure. For example…there were protests in the Soviet Union when paper mills first started dumping waste into Lake Baikal. However, the protesters themselves were always one government institution, say, the Limnological Institute of the Academy of Sciences, working against another, in that case the Ministry of Timber, Paper, and Woodworking. Sometimes the protesters were able to exploit personal rivalries within the government in order to plant articles in government newspapers, but in the end, they always lost. The whole incentive system of the Soviet economy, from the Politburo down to the local plant manager, was focused on just one thing: meeting the impossibly demanding production targets of the Five Year Plan. The environment always lost.”

For a thorough account of why socialism tends to destroy the environment, I recommend reading this paper by Peter Hill (1992). Under socialism, there is no incentive to prevent waste, which leads to excess consumption of resources.

“The general inefficiency of production under socialism is another indicator of the lack of incentives to prevent waste. Czechoslovakia consumes about three times the energy of the average western nation per unit of output. In the former Soviet Republics manufacturing uses four times as much energy per unit of GNP as in the United States. Chemical plants in the Soviet Union for many years emitted large amounts of a potent pollutant, fluorine, into the atmosphere. Despite numerous studies by engineers that showed that the fluorine could be recovered at a profit and sold to other enterprises, the plant managers found it easier to continue to pollute. There was no effective system in place whereby a manager was rewarded for taking such cost reducing and environment improving actions.”

While free markets certainly would not have a perfect record with respect to preventing waste and protecting the environment, they would be far superior to socialist incentives. If the theoretical account of socialism’s environment failings is damning, the real life experience is catastrophic. Thomas DiLorenzo (1992) has done research on this, which I will now draw upon.

Soviet Union

In the Soviet Union (which, again, had extensive legal protections for the environment), central planning proved devastating for the natural world. The Aral and Caspian seas were destroyed, as Soviet authorities diverted water away from them for other projects, and hundreds of factories dumped untreated chemical wastes into them. This sort of industrial prioritization was common.

“A typical example of the environmental damage caused by the Soviet economic system is the exploitation of the Black Sea. To comply with five-year plans for housing and building construction, gravel, sand, and trees around the beaches were used for decades as construction materials. Because there is no private property, “no value is attached to the gravel along the seashore. Since, in effect, it is free, the contractors haul it away. This practice caused massive beach erosion which reduced the Black Sea coast by 50 percent between 1920 and 1960. Eventually, hotels, hospitals, and of all things, a military sanitarium collapsed into the sea as the shoreline gave way. Frequent landslides–as many as 300 per year–have been reported.”

Toxic waste was dumped into rivers and destroyed these ecosystems because there was no private property.

“Effluent from a chemical plant killed almost all the fish in the Oka River in 1965, and similar fish kills have occurred in the Volga, Ob, Yenesei, Ural, and Northern Dvina rivers. Most Russian factories discharge their waste without cleaning it at all. Mines, oil wells, and ships freely dump waste and ballast into any available body of water, since it is all one big (and tragic) “commons.”

“Islands of alkaline sewage have been observed floating on the lake, including one that was 18 miles long and three miles wide. These “islands” have polluted the air around the lake as well as the water in it. Thousands of acres of forest surrounding the lake have been denuded, causing such erosion that dust storms have been reported. So much forest land in the Lake Baikal region has been destroyed that some observers reported shifting sands that link up with the Gobi Desert; there are fears that the desert may sweep into Siberia and destroy the lake.”

Arguably the worst of these cases was the Volga River. So much oil was dumped into this river that smoking had to be banned for sailors on ships traversing it – not for paternalistic health reasons, as in the West, but because throwing spent cigarette butts overboard would cause raging fires.

Of course, let’s not forget the Chernobyl disaster.

“The 1986 Chernobyl nuclear disaster, the world’s worst, caused not just by operating errors but by a reckless design that provided no containment vessel in case of accident. The nuclear accident that had been considered the world’s worst up to that time also occurred in the Soviet Union, the 1957 explosion of a waste storage pond at the Mayak nuclear weapons complex.”

The Soviets also killed at least 45,000 humpback whales between 1946 and 1986. Why? To satisfy obscure line items in five year plans. Barely 30% of these whales were actually used, and the remainder were left to rot.

China

Chinese cities are well-known to have a thick layer of smog covering them.

“The Chinese state’s arrogation of all pollution litigation to its own courts is a clear collectivization of environmental property rights — most notably rights to air and property surfaces, most of which are covered in soot after a few years of operation.

The state’s subsequent, systematic refusal to enforce property owners’ claims against pollution damages to the serviceability of their air and the appearances of their structures’ outward surfaces, then, constitutes a redistribution of these collectivized rights to “dirty” industries and other heavy polluters.”

Massive industrial projects initiated by the socialist government in China also led to serious environmental issues.

“China’s current Three Gorges Dam has displaced over a million people and flooded 13 cities, 140 towns and 1,350 villages. There’s no way the capitalists of Wall Street could compete with that flooding.”

Water pollution is another serious issue:

“An official report showed that 90% of all environmental protests in 2012 were linked to water pollution. It found that 57.3% of the groundwater in 198 cities in 2012 was ‘bad’ or ‘extremely bad’. One third of rivers and 75% of lakes are seriously polluted, and around 1,000 lakes have disappeared. Unsafe drinking water is being used by 320 million people, and 190 million are sick every year due to water pollution.”

Central planning has led to massive environmental destruction of forests and waterways in China.

“According to the Worldwatch Institute, more than 90 percent of the trees in the pine forests in China’s Sichuan province have died because of air pollution. In Chungking, the biggest city in southwest China, a 4, 500-acre forest has been reduced by half. Acid rain has reportedly caused massive crop losses.

There also have been reports of waterworks and landfill projects severely hampering fish migration. Fish breeding was so seriously neglected that fish has largely vanished from the national diet. Depletion of government-owned forests has turned them into deserts, and millions of acres of grazing and farm land in the northern Chinese plains were made alkaline and unproductive during the “Great Leap Forward.””

Poland

The Polish people under communism did not fare much better.

“According to the Polish Academy of Sciences, “a third of the nation’s 38 million people live in areas of ecological disaster.” In the heavily industrialized Katowice region of Poland, the people suffer 15 percent more circulatory disease, 30 percent more tumors, and 47 percent more respiratory disease than other Poles. Physicians and scientists believe pollution is a major contributor to these health problems.

“Half of Poland’s cities, including Warsaw, don’t even treat their wastes, and 41 animal species have reportedly become extinct in Poland in recent years. While health statistics are spotty — they were not a priority of the Communist government–available data are alarming. A recent study of the Katowice region found that 21 percent of the children up to 4 years old are sick almost constantly, while 41 percent of the children under 6 have serious health problems.”

Coal mining caused major issues because property rights were not respected, and the health of the land did not need to be taken into account by the socialist planners.

“Continuous pumping of water from coal mines has caused so much land to subside that over 300,000 apartments were destroyed as buildings collapsed. The mine sludge has been pumped into rivers and streams along with untreated sewage which has made 95 percent of the water unfit for human consumption. More than 65 percent of the nation’s water is even unfit for industrial use because it is so toxic that it would destroy heavy metals used by industry.”

Czechoslovakia

Here’s a summary of the environmental devastation that occurred in communist Czechoslovakia:

“Because of the overuse of fertilizers, farmland in some areas of Czechoslovakia is toxic to more than one foot in depth. In Bohemia, in northwestern Czechoslovakia, hills stand bare because their vegetation has died in air so foul it can be tasted. One report describes the Czech countryside as a place where “barren plateaus stretch for miles, studded with the stumps and skeletons of pine trees. Under the snow lie thousands of acres of poisoned ground, where for centuries thick forests had grown.” There is a stretch of over 350 miles where more than 300,000 acres of forest have disappeared and the remaining trees are dying. A thick, brown haze hangs over much of northern Czechoslovakia for about eight months of the year. Sometimes it takes on the sting of tear gas, according to local officials. There are environmental laws, but they aren’t enforced. Sulfur in the air has been reported at 20 times the permissible level. Soil in some regions is so acidic that aluminum trapped in the clay is released. Scientists discovered that the aluminum has poisoned groundwater, killing tree and plant roots and filtering into the drinking water.”

East Germany

East Germany is a classic case of socialism, and particularly, the issues that socialism has wrought for the environment. Note that West Germany did not have nearly so egregious exploitation of the environment.

“Much of the East German landscape has been devastated. Fifteen to 20 percent of its forests are dead, and another 40 percent are said to be dying. Between 1960 and 1980 at least 70 villages were destroyed and their inhabitants uprooted by the government, which wanted to mine high-sulfur brown coal. The countryside is now “pitted with moon-like craters” and “laced with the remains of what were once spruce and pine trees, nestled amid clouds of rancid smog.” The air in some cities is so polluted that residents use their car headlights during the day, and visitors have been known to vomit from breathing the air.

Nearly identical problems exist in Bulgaria, Hungary, Romania, and Yugoslavia.

Visiting scientists have concluded that pollution in Central and Eastern Europe “is more dangerous and widespread than anything they have seen in the Western industrial nations.””

Colin Grabow adds:

“An estimated 44 percent of East German forests were damaged by acid rain — little surprise given that the country produced proportionally more sulphur dioxide, carbon dioxide, and coal dust than any other in the world. In some areas of East Germany the level of air pollution was between eight and twelve times greater than that found in West Germany, and 40 percent of East Germany’s population lived in conditions that would have justified a smog warning across the border. Only one power station in East Germany had the necessary equipment to clean sulphur from emissions.”

Even the greatest excesses of the Western world and capitalism can’t compare with the extreme environmental devastation brought on by socialism. So why do environmentalists continue to promote big government policies? And why are so many environmentalists also socialists?

 

Private Property As A Solution

“[Those] who wonder what all the fuss is about when environmentalists raise alarms about the effects of acid rain on the forests react with outrage when the neighbour’s dog performs squatus smellibus on their own front lawns. It may be said that this is different—after all, the front lawn is private property— but this is precisely the point.

If the same dog-owning neighbour happens to own an industrial plant that dumps a chemical effluent on some remote forest land, we have little reaction, even if we know about it. After all, the forest land isn’t our private property. It’s government land. The question is, how do we ensure that the protective reactions of private property ownership will leap to the aid of the forest in the same way that they protect front lawns? The answer is that as long as we persist in the myth of public ownership, it will be very difficult.” – Walter Block

The United States doesn’t have a great record as an environmental steward, and many environmentalists will seize upon this to argue that privatization and free markets are to blame. Environmental costs of business are externalities – companies that pollute are not required to pay the cost of their pollution, so the pollution is subsidized.

Without a doubt, this is true today. However, it was not always like this in America. There used to be legal ways to internalize those externalities and to make polluters responsible for the damage they caused. This was the case when private property rights were more respected and legally protected in America, a reality that changed in the mid-1800s. Walter Block discusses the old system:

“Up to the 1820s and 1830s, the legal jurisprudence in Great Britain and the U.S. was more or less predicated upon the libertarian vision of non-invasiveness. Typically, a farmer would complain that a railroad engine had emitted sparks which set ablaze his haystacks or other crops. Or a woman would accuse a factory of sending airborne pollutants to her property, which would dirty her clean laundry hanging on a clothesline. Or someone would object to the foreign matter imposed in one’s lungs without permission. Almost invariably, the courts would take cognizance of this violation of plaintiff’s rights. The usual result during this epoch was injunctive relief, plus an award of damages.”

This respect for private property had positive effects from an environmental standpoint. In fact, these positive effects are essentially the flip-side of the negative impact of socialism.

“First of all, there was an incentive to use clean burning, but slightly more expensive anthracite coal rather than the cheaper but dirtier high sulfur content variety; less risk of lawsuits. Second, it paid to install scrubbers, and other techniques for reducing pollution output. Third there was an impetus to engage in research and development of new and better methods for the internalization of externalities: keeping one’s pollutants to oneself. Fourth, there was a movement toward the use better chimneys and other smoke prevention devices. Fifth, an incipient forensic pollution industry was in the process of being developed. Sixth, the locational decisions of manufacturing firms was intimately effected. The law implied that it would be more profitable to establish a plant in an area with very few people, or none at all; setting up shop in a residential area, for example, would subject the firm to debilitating lawsuits.”

Clearly, these incentives would lead to far superior environmental outcomes. Unfortunately, the legal climate in America soon changed.

“But then in the 1840s and 1850s a new legal philosophy took hold. No longer were private property rights upheld. Now, there was an even more important consideration: the public good. And of what did the public good consist in this new dispensation? The growth and progress of the U.S. economy. Toward this end it was decided that the jurisprudence of the 1820s and 1830s was a needless indulgence. Accordingly, when an environmental plaintiff came to court under this new system, he was given short shrift. He was told, in effect, that of course his private property rights were being violated; but that this was entirely proper, since there is something even more important than selfish, individualistic property rights. And this was the “public good” of encouraging manufacturing.”

Since then, America has never turned back. Legal protections for victims of pollution have not been reinstated, and unfortunately, it doesn’t look like they will be anytime soon. Nevertheless, a regime of private property rights that includes consistent enforcement is the solution to the environmental problem. Environmentalists, unfortunately, do not have a good understanding of how private property rights work, as evidenced by their rhetoric surrounding environmental issues:

“Even when the term “rights” is employed by ecologists in what is seemingly its more traditional, negative sense, as, for example, when environmentalists write of “the right to live free from pollutants” it is often so used without any regard to the context in which these rights are situated. When one refers to “the right to a smoke-free environment,” as numerous spokesmen of the anti-smoking campaign often do, surely it makes sense to ask “of just whose environment are we speaking?” While I might indeed have such a right to demand of others that they not smoke on my property, have I the same right when it comes to the property of others? But even put in such bald form, the majority of environmentalists would argue that, in most cases, I would indeed have such a right. Such rights obtain, they argue (and in this they are by no means alone), because most private property is not, in reality, private at all, since members of the public (either all members of the public, as is the case with, say, a department store, or certain specific members of the public, as is the case with a business office) are invited onto the property. By virtue of this fact, nominal private property is transmuted into commonly owned property, the disposal of which can justifiably be determined by political means. Indeed, most environmentalists have extended this notion of public ownership to the whole of the natural world. They write of the “common heritage of all humanity” and of “sharing the world’s resources equitably.” It is as if each of us, when born, inherits our pro rata share of all the wealth of the world, the land and the oceans of the earth, and all that is on, above, or below it, without regard to the prevailing ownership of these resources.”

Because today’s system is so far removed from a system of private property rights, thinking about environmental issues this way requires a paradigm shift. Instead of thinking about pollution as a crime against “the environment,” we need to think of it as a conflict between human beings.

“Pollution is…not about harming the environment but about human conflict over the use of physical resources. Generally formulated, a pollution or environmental problem arises when individual or group A and individual or group B are simultaneously attempting or planning to use resource X for conflicting purposes. Unless emissions into the air, discharge into a river, or the extraction of fish from the ocean give rise to such a conflict then there is no economic, i.e., efficiency problem. Humans cannot harm the environment. Instead, they can change the environment in such a way that it harms others who might be planning to use it for conflicting purposes.”

Conflict, in this sense, is essentially a dispute over the rights to use a given resource. The conflict arises when peoples’ plans regarding the use of resources differ. This requires well-defined property rights in order to determine the proper solution.

“In a setting where rights are clearly defined and strictly enforced, plans may conflict but the resolution to that conflict is embedded in the exchange process. In other words, conflict may arise at the planning stages but is resolved before the actors proceed with implementation of those plans. For example, persons A and B may have conflicting plans with respect to resource X, but if ownership to X is clearly defined as being in the hands of A, B, or a third party C, then there will not be a conflict over the actual use of X. It will be understood by A or B that before proceeding with their plan they must gain rights to X.”

In this paradigm, pollution issues take on a very different character than they do in today’s system. Ray Cordato describes a hypothetical conflict and resolution in this way:

“There is a conflict over the use of a resource. The source of that conflict is the generation of a production byproduct that crosses from property that is owned and controlled by the generator of the byproduct to property that is owned and therefore should be controlled by a nonconsenting party. The responsibility for ending the conflict lies with the polluter who should be responsible for truly internalizing the costs of the conflict generating activity. In this case, internalizing the costs of the pollution does not simply mean facing a new supply curve that has shifted to the left by the right amount. For the polluter it instead means eliminating the costs of his polluting activities to those whose property usage is being curtailed. This might be done by eliminating the emissions, confining them to his own property, or by compensating the victims of the polluting activity by an amount that fully addresses the grievance.”

Obviously, this new paradigm requires some kind of legal system. By far, the best explication of libertarian legal theory with respect to environmental issues comes from Murray Rothbard’s brilliant paper “Law, Property Rights, and Air Pollution.” If you are interested in this, I suggest reading that essay in full, but I will provide the most important insights here. The most fundamental aspect of this legal system is a commitment to nonviolent interaction.

“No action should be considered illicit or illegal unless it invades, or aggresses against, the person or just property of another. Only invasive actions should be declared illegal, and combated with the full power of the law. The invasion must be concrete and physical. There are degrees of seriousness of such invasion, and hence, different proper degrees of restitution or punishment.”

Note that the key thing here is not whether or not someone is “harmed” by a given action, but rather that a physical invasion happened. In other words, I have no legal claim against you if you call me names or offend me, but I would have a claim if you, say, punched me in the face.

“Legal and political theory have committed much mischief by failing to pinpoint physical invasion as the only human action that should be illegal and that justifies the use of physical violence to combat it. The vague concept of “harm” is substituted for the precise one of physical violence…Jim is courting Susan and is just about to win her hand in marriage, when suddenly Bob appears on the scene and wins her away. Surely Bob has done great “harm” to Jim. Once a nonphysical-invasion sense of harm is adopted, almost any outlaw act might be justified. Should Jim be able to “enjoin” Bob’s very existence?”

An obvious prerequisite for determining whether a physical invasion has occurred is to establish who owns what. Rothbard’s solution is the application of Lockean homesteading principles to determine ownership, and the homesteader can establish an easement of pollution rights for the surrounding area. This is best demonstrated through an example.

“Suppose…that an airport is established with a great deal of empty land around it. The airport exudes a noise level of, say, X decibels, with the sound waves traveling over the empty land. A housing development then buys land near the airport. Some time later, the homeowners sue the airport for excessive noise interfering with the use and quiet enjoyment of the houses.

Excessive noise can be considered a form of aggression but in this case the airport has already homesteaded X decibels worth of noise. By its prior claim, the airport now “owns the right” to emit X decibels of noise in the surrounding area. In legal terms, we can then say that the airport, through homesteading, has earned an easement right to creating X decibels of noise. This homesteaded easement is an example of the ancient legal concept of “prescription,” in which a certain activity earns a prescriptive property right to the person engaging in the action.

On the other hand, if the airport starts to increase noise levels, then the homeowners could sue or enjoin the airport from its noise aggression for the extra decibels, which had not been homesteaded. Of course if a new airport is built and begins to send out noise of X decibels onto the existing surrounding homes, the airport becomes fully liable for the noise invasion.”

The next question this leads to is how much of a resource becomes owned when someone is the first user. How would this be determined?

“If A uses a certain amount of a resource, how much of that resource is to accrue to his ownership? Our answer is that he owns the technological unit of the resource. The size of that unit depends on the type of good or resource in question, and must be determined by judges, juries, or arbitrators who are expert in the particular resource or industry in question. If resource X is owned by A, then A must own enough of it so as to include necessary appurtenances. For example, in the courts’ determination of radio frequency ownership in the 1920s, the extent of ownership depended on the technological unit of the radio wave — its width on the electromagnetic spectrum so that another wave would not interfere with the signal, and its length over space. The ownership of the frequency then was determined by width, length, and location.”

In other words, there is no cut and dry answer. This is the kind of thing that needs to be determined by relevant case law and by experts. Expectations set by custom will play an important role here. For specifics regarding the establishment of a legal order under anarchy, see my earlier post on the subject. With or without government, disputes will arise and can be settled via arbitration, and pollution lawsuits (and other environmental damage issues) would be considered torts.

“Air pollution is a private nuisance generated from one person’s landed property onto another and is an invasion of the airspace appurtenant to land and, often, of the person of the landowner. Basic to libertarian theory of property rights is the concept of homesteading, in which the first occupier and user of a resource thereby makes it his property. Therefore, where a “polluter” has come first to the pollution and has preceded the landowner in emitting air pollution or excessive noise onto empty land, he has thereby homesteaded a pollution or excessive noise easement. Such an easement becomes his legitimate property right rather than that of the later, adjacent landowner. Air pollution, then, is not a tort but only the ineluctable right of the polluter if he is simply acting on a homestead easement. But where there is no easement and air pollution is evident to the senses, pollution is a tort per se because it interferes with the possession and use of another’s air. Boundary crossing — say by radio waves or low-level radiation — cannot be considered aggression because it does not interfere with the owner’s use or enjoyment of his person or property. Only if such a boundary crossing commits provable harm — according to principles of strict causality and beyond a reasonable doubt — can it be considered a tort and subject to liability and injunction.”

Rothbard summarizes the conditions necessary for a pollution-related claim to be considered a violation of property rights:

“We have established that everyone may do as he wishes provided he does not initiate an overt act of aggression against the person or property of anyone else. Anyone who initiates such aggression must be strictly liable for damages against the victim, even if the action is “reasonable” or accidental. Finally, such aggression may take the form of pollution of someone else’s air, including his owned effective airspace, injury against his person, or a nuisance interfering with his possession or use of his land.

This is the case, provided that:

  1. the polluter has not previously established a homestead easement;

  2. while visible pollutants or noxious odors are per se aggression, in the case of invisible and insensible pollutants the plaintiff must prove actual harm;

  3. the burden of proof of such aggression rests upon the plaintiff;

  4. the plaintiff must prove strict causality from the actions of the defendant to the victimization of the plaintiff;

  5. the plaintiff must prove such causality and aggression beyond a reasonable doubt; and

  6. there is no vicarious liability, but only liability for those who actually commit the deed.”

 

Environmental Problems and Private Property Solutions

plastic bags are beautiful

This is all actually quite simple and obvious, but is not the way pollution claims work in court today. Polluters are unfairly given legal sanction to harm others. When the law no longer considers private property rights sacrosanct, even public-spirited factory owners have a difficult time protecting the environment. By implementing expensive technologies or processes that would reduce pollution, they create a more expensive product that has a harder time competing on the market.

Consider the issue of waste management. Because the government controls waste management, for instance, it is unclear how to act in the most environmentally friendly way. As Walter Block argues in his essay “Environmental Problems, Private Property Rights Solutions”,

“We cannot calculate the economic cost to society of disposing of a non-biodegradable diaper because government has perverted market signals through its programme of ownership and management of waste disposal. Nor can we calculate the ecological cost of washing dirty cloth diapers or recycling plastic ones. Given the absence of the relevant markets, we certainly cannot compare these costs, whether financial or ecological, but no less is required to determine which of these items, cloth or disposable diapers, is the least harmful to the environment.”

Mark Pennington elaborates on and generalizes this concept.

“Suppose that an individual is altruistically motivated as a concerned citizen to reduce his water consumption to a “socially responsible” amount. In the absence of property rights and market prices for water, the individual has no way to ascertain how much to adjust his consumption to take the interests of others properly into account….even the most altruistically inclined person faced with this situation is likely to consume as much water as he personally requires because at least he knows what that amount is, whereas the “socially responsible” amount of consumption is shrouded in a fog of ignorance. Such problems will be multiplied many times over, of course, when the choice is between the vast array of production and consumption possibilities that make up an advanced economy and the complex environmental consequences of these possibilities. In short, without the information provided by market-generated relative prices, citizens will find it impossible to communicate their values to one another and to adjust their behavior accordingly.”

In order to make sound judgments regarding the use of resources, we need a market-generated price system. With the government controlling environmental policy in a centralized way, solutions to environmental problems are less likely to be found. A decentralized, dispersed system with private property rights and which provides freedom to go against the majority opinion will find solutions that a government simply cannot.

“As Michael Polanyi has shown, the spread of knowledge in markets, the arts, and academia does not proceed by collective deliberation, but rather advances best when individuals and groups have a private sphere that secures the freedom to experiment with projects that do not conform to majority opinions. Then, as a result, the prevailing wisdom changes incrementally over time. With regard to “green” consumption, for example, it is doubtful whether the massive growth in the organic food market that has occurred in recent years would ever have developed if production decisions in the agricultural sector had been subject to collectivist procedures. For years, organic food was viewed as the concern of hapless eccentrics. Precisely because private property affords minorities the space to try out experimental ideas (the merits of which may be indiscernible) rather than simply talking about them, more and more people are now able to emulate such role models as the benefits become more visible.”

The market system may be imperfect, but it provides the best opportunity to resolve those imperfections. Governments suffer from the same kinds of issues with externalities and transaction costs as markets do with respect to environmental protection, but at least the market provides clear-cut incentives to fix or reduce those problems.

“Although proponents of free-market environmentalism recognize that environmental markets have limits owing to the prevalence of transaction costs, they contend that these problems are more likely to be overcome within an institutional framework supportive of private contractual arrangements. In this perspective, all environmental externalities represent potential profit opportunities for entrepreneurs who can devise ways of defining private-property rights and arranging contracts (via technological innovations, for example) so that those currently free riding on collective goods or imposing negative external effects (for example, water pollution) on their neighbors are required to bear the full costs of their actions. A land owner, for example, may introduce fences and install entrance points to the grounds of a park in order to exclude nonpayers from the park’s aesthetic benefits. Likewise, if technologies develop in the future that enable the “fencing” of the atmosphere, then entrepreneurs will have incentives to define property rights to the air and to charge those who are currently polluting without compensating those injured by their action. In the market economy, therefore, if people are imposing costs on others or are benefiting from the provision of certain goods without payment, entrepreneurs have incentives to find ways of eliminating such involuntary transfers over time.”

Let’s consider another example, oil spills, which I briefly discussed in an earlier section on the state’s failure to protect the environment. Changing the regulatory structure (reducing subsidies for deep sea drilling, ending limited liability for oil companies, etc.) would go a long way towards reducing the risk of oil spills. Additionally, privatizing the oceans would create an incentive for owners to use their ocean property responsibly, unlike the unowned state of oceans today. Walter Block explains:

“If people owned various patches of the ocean, they would have an economic incentive to protect their holdings. For example, they might well insist that any ship passing through their property with a cargo of oil be double-hulled. Additionally, they would have more of a selfish interest not only in demanding that inebriated sailors be prohibited access to their property but in actually ensuring that this policy is enforced.”

Of course, there are some difficulties with privatizing the oceans. The technology to implement this effectively might not exist yet. But that’s the thing: until the ocean is privatized, there will be no incentive for entrepreneurs to tackle these problems. Perhaps someone can implement some sort of EZ Pass buoy system to delineate property lines and charge ships passing through.

Now, let’s talk about how pollution might be handled in an anarchist society. Stefan Molyneux has a good discussion of this problem here. In his account, there are companies (“Dispute Resolution Organizations” or DROs) that play the role of crime insurance. I heavily elaborate on the concept here.

Let’s say Sally owns land that she wants to convert into a factory, and there are a group of homeowners downwind, including Ahmed. Naturally, any concerned homeowners will purchase pollution insurance from their DRO. Ahmed takes out a policy that will pay him $2 million if a certain predefined type of and amount of pollution is found on his property.

When Sally begins preparations to build her factory, Ahmed’s DRO takes notice – if this factory is going to cause pollution, they might be on the hook for $2 million in claims! The DRO can spend some amount less than $2 million to either buy up Sally’s land and sell it to a non-polluter or get legal assurances from Sally that she will not pollute. If the DRO succeeds, great! If not, they have a $2 million budget to encourage Sally to install chemical scrubbers or other technologies that may reduce the pollution to a low enough level. Now, if this isn’t good enough to solve the issue, the DRO will pay Ahmed his $2 million, which he can use to move to a less polluted neighborhood if he so chooses. And it likely won’t just be Ahmed; we could be talking about vastly higher sums of money as hundreds or thousands of individuals get pollution insurance.

Similarly, Sally, fearing potential pollution claims against her, will need a DRO to represent her and reduce her risk. Her DRO won’t like her polluting activities, since that opens them up to significant claims payouts from pollution damages downwind. Chances are good that she won’t even be able to contract for services with a reputable DRO unless she can prove that pollution activities will be below a certain threshold. And without a DRO backing her, it is highly doubtful that she’ll be able to get the capital to build and maintain her factory anyways!

What about a situation where the pollution is more complicated?

“Imagine that Sally’s smokestacks are so high that her air pollution sails over Achmed’s house and lands on Reginald’s house, a hundred miles away. Reginald then complains to his DRO that his property is being damaged. His DRO will examine the air contents and wind currents, then trace the pollution back to its source and resolve the dispute with Sally’s DRO. If the air pollution is particularly complicated, then Reginald’s DRO will place non-volatile compounds into Sally’s smokestacks and follow them to where they land. This can be used in a situation where a number of different factories may be contributing pollutants.”

And again, as private property rights are reestablished, the incentive to develop these kinds of compounds and other solutions to problems of this nature increases.

Before moving on to a couple of the larger applications of the private property solution to environmental issues, I’d like to again contrast market solutions with that of government. Consider certain massive government (or government sponsored) projects, including the interstate highways, airports, stadiums, railways, etc. Under a regime of private property and anarchy, then each of these environmentally destructive projects would have required the consent of all landowners in order to be built, making them far less likely. But the state can simply use eminent domain to seize the land, and then subsidize its development. Can you imagine how much less pollution there would be today if the interstate highway system didn’t exist (at least not in its current form)?

Conservation And The Tragedy of The Commons

When governments attempt to solve environmental issues, the solutions are at best temporary. The government can always change its mind, and is particularly likely to do so in the face of moneyed interests. Any pro-conservation bill is liable to be overturned. What the government provides, it can also take away. Private property provides a solution to this problem.

“The environment in the United States does not stand a chance for long term preservation in its current direction. If a group of people can democratically decide what to do with the land you are trying to save, then the land is not protected. The reality is that the land “preserved” is actually just a lease from the government. The earth is “secure” until the whims of rulers find a better use than appeasing a few disgruntled environmentalist voters.

“A simple question for environmentalists using political action: “If the price of gas goes up to $5/gallon, what are you going to do in order to convince a voter making $8/hour at Wal-Mart to vote in favor of preserving caribou over drilling for oil?”

“Environmentalism is based entirely on thinking about the future of the planet. In the present, supporters do the exact opposite. Their policies are temporary patch jobs at best without consideration that the same country that voted for preservation this time can change its mind. Political action conservationists showing the benefits of their lobbying are exercising a performative contradiction. They are attempting to solve the problems of the long term by only considering the short term.”

Political realities are likely to preclude any environmental policy from being truly successful over longer time scales. But private property rights can resolve conservation related issues for the long term. Environmental groups such as the Sierra Club can buy up tracts of land that they believe require some kind of protection, and then can own and administer that land forever. The Land Trust Alliance, for instance, has already been doing this. If you want land (or some endangered species on that land) protected, who would you trust more: a fickle government or a group of dedicated environmentalists?

There is a well-known issue related to land and resource conservation dubbed “the tragedy of the commons.” When a resource is collectively owned, it tends to be depleted much more quickly because there is no incentive to preserve the resource if someone else will simply take advantage of what you fail to harvest. If a forest is collectively owned, everyone has an incentive to log as quickly as possible before everyone else does the same. Quickly, the forest ends up destroyed. If the forest were privately owned, however, the owner would have every incentive to maximize the present value of his property by logging in a sustainable way, which would leave him a source of income for years to come.

Robert Smith studied this issue, and provides examples of the tragedy of the commons. Consider the wild eider, the bird that produces the most valuable down in the world.

“Iceland’s management of the wild eider as a private property resource has been a great success. The private eider farms have benefited both the property owners and the eider population. The farmers have protected the birds from overexploitation, from poachers, and from natural predators. They have also created artificial nesting sites in which the female will nest. The combined provision of protected nesting areas and artificial nesting sites has served to maintain a thriving population.

“If the eider had been treated as a common property resource, the only way the Icelanders could have captured any economic value from the resource would have been to take all they could before other users did the same. It would not have been profitable to wait for the eider to line their nests with down; someone else might have collected it first. The rational course of action for each user would have been to kill the eider and immediately appropriate all of the down. It also would not have been in anyone’s self-interest to invest in conservation programs, such as nest site construction or predator control. All of the other down collectors would have benefited from the actions of the conservationist.”

This principle seems obvious, yet in America, there are a huge number of national parks that continue to fall victim to the tragedy of the commons.

“Many of the most beautiful national parks are suffering from severe overuse and a near destruction of their recreational values, but most private parks are maintained in far better condition. The National Audubon Society does a better job of preserving its wildlife refuges and protecting wildlife than do many federal wildlife refuges. The public grazing lands have been repeatedly over-grazed, while lush private grazing lands are maintained by private ranchers. National forests are carelessly logged and overharvested, but private forests are carefully managed and cut on a sustained-yield basis, and costly nursery tree farms have been developed. In addition, the basic concept of self-interest explains why people don’t litter their own yards but do litter public parks and streets, and why people don’t dump old refrigerators and tires in their own farm ponds or swimming pools, but repeatedly dump them in the unowned streams, rivers, and swamps.” (emphasis mine)

To protect and preserve wildlife would be as easy as privatizing the land that this wildlife lives on. In some cases, environmental groups can purchase the land and leave it exactly as it is, but they can also charge fees for people to go into these parks and view the scenery. Some might do this ideologically as a form of charity, but others may protect the environment because it is good business.

One highly controversial example of conservation-based businesses would be game ranches or hunting preserves. Environmentalists don’t like them because….well, I’m not sure exactly. Something about profits being evil. Nevertheless, they work.

“Another example of how private ownership can successfully preserve wildlife is found on game ranches, hunting preserves, safari parks, and animal and bird farms…Many of the animals they stock are rapidly disappearing in their native countries because of pressures resulting from a rapidly expanding human population. Native habitats are disappearing through the encroachment of agriculture, cattle grazing, timber harvesting, and desertification arising from overexploitation of common property water resources, overgrazing of grasslands, and overutilization of brush, scrub, and trees for firewood and shelter. So serious are these problems and so insoluble under a common property system that there is little hope of saving many species of wildlife in the developing countries. Indeed, some of the more spectacular and most sought-after big-game mammals may now have healthier and more stable populations on some of the game ranches than in their native countries.

“If the profits gained by giving hunters access to exotic game can provide the economic incentive for these landowners to manage the animals on a sustained-yield basis, some species will be saved. The same holds for the profits to be derived from visitors to game parks and preserves. In fact, the protection provided at some of the parks, preserves, and gardens has actually produced a glut of some animals. There have been well-publicized efforts by some preserves to return their surplus animals to Africa, Lions from America have even been taken to Africa to appear in movies that were filmed there. While we read of zoological parks attempting to discover reversible birth control techniques in order to control their tiger populations, we continue to read about the never-ending difficulties of preserving the remaining tigers in the wild.”

In some cases, species were discovered living only on private land and have been rescued because of this. In addition, privately owned animals in captive breeding programs can reduce potential pressures on wild populations.

“The familiar budgerigar, or budgie, is commonly kept as a pet in the United States and is bred in enormous numbers by thousands of breeders. Practically the entire trade is supplied by captive-bred birds. This demonstrates another conservation aspect of extending private property rights to wildlife, as captive breeding can supply the market demand for the birds and reduce or eliminate the demand on wild populations.”

As much as limousine liberals and environmentalists bloviate about the environmental horrors of private property and their moral outrage (outrage!) that animals can be hunted for profit, the system obviously works better than anything they’ve come up with. And it’s not as though private conservation needs to be done out of a desire for profit – surely, in an anarchist society, environmental protection organizations could work together to preserve wildlife for its own sake.

“Under private property ownership, others were prevented from exploiting the resource, and there were incentives for the owners to preserve them. Furthermore, these incentives were not solely motivated by the possibility of economic gain. With the exception of game ranches, economic gain has seldom been the primary motivation behind most captive breeding projects. Many of these examples were fostered for the pleasure of owning and breeding attractive or rare wildlife, as well as for more “altruistic” reasons, such as a deep commitment to the preservation of vanishing wildlife. Private ownership includes not only hunting preserves, commercial bird breeders, parrot jungles, and safari parks, it also includes wildlife sanctuaries, Audubon Society refuges, World Wildlife Fund preserves, and a multitude of private, nonprofit conservation and preservation projects.”

But what is important here is that private conservation efforts could be done without appealing to any particular environmental values – it would just be good business. Surely, people would be willing to pay to go on a safari and watch three lions and a leopard compete over a dead impala. Commercializing trade in certain animals or animal parts (or hunting them) will lead to an increase in animal farms which will breed more and more of these endangered species. And of course, private game reserves do everything they can to stop poachers. Having rare and difficult to replace animals killed does not serve their business interests. Contrast this with national parks, where this incentive no longer exists. In fact, there is a stronger incentive for park rangers to get involved with poaching themselves for personal gain!

Consider the recent uproar over the hunting and killing of the beloved Cecil the Lion. Cecil was a huge attraction to the park he lived in, and was not supposed to be killed – it was an illegal poaching group that set up the hunt. But the outrage over this hunt has led to various airlines disallowing hunting trophies to be flown back to the US or EU, and activists working to ban or restrict hunting. This approach is completely backwards – and can be contrasted with a legitimate hunt.

“American Corey Knowlton paid $350,000 for a permit to hunt a black rhino in Namibia under the auspices of the Dallas Safari Club back in January 2014. Black rhinos are critically endangered, and Knowlton received death threats after the permit auction, but the details of his hunt are likely to win over all but the most ardent hunting opponents.

For starters, the money will go to fight poaching. (That’s right: this pay-to-play hunt will help fund efforts to prevent exactly the kind of crappy practices used by Palmer’s team) The permit from the Namibian government authorized only the killing of one of 18 elderly male black rhinos, which are actually considered a net negative for overall species survival, since they are past their breeding years but remain territorial and are therefore a threat to the younger males. Knowlton and his well-vetted team whittled that list to just four animals and were obsessively carefully about finding the right rhino to kill.”

Clearly, this type of hunt could be a huge boon to conservation efforts. A great example of private property protecting endangered species where government action failed is with the American bison. Originally, the bison lived on territory that white people had not ventured into yet, and the population of Native Americans was too small to reduce their numbers significantly. But as white people started closing in on this land, the bison was subject to the tragedy of the commons, as the property was considered unowned. The US government forced Native Americans off of this land and into “reservations”, slaughtering the bison in the process of waging scorched-earth warfare. Eventually, the government tried to save the species, did a crappy job, and private individuals had to save the bison from extinction with their “greed”.

“Although Idaho, Texas, New Mexico and other states passed laws similar to the Endangered Species Act, they often failed to do so before it was too late and the buffalo were already gone. In 1872 Yellowstone National Park was opened as a safe haven, but poaching still remained a substantial problem. Henry Yount, remembered for his time at Yellowstone as the first national park ranger, resigned after only 14 months on the job because he knew his efforts alone were hopeless.

Thankfully for the bison, Charles Goodnight, James McKay, William and Charles Alloway, as well as a host of other private ranchers began to scoop up wild buffalo throughout the 1860s and 70’s. From 1884 to 1902, the bison population in Yellowstone actually decreased from 25 to 23, but also by 1902, an estimated 700 were privately owned. This trend has continued for more than a century, as by the 1990s the ratio was 25,000 publicly-owned to 250,000 privately-owned bison.”

The principle of private property as a solution to the tragedy of the commons and environmental issues affects not just animals but other kinds of resources as well. Private ownership is why there is no shortage of trees in the American south, and yet there are tree shortages in the west, where the forests are publicly owned. Similarly, a functioning free market in water would solve the shortage that has recently plagued Californians.

Mass Collective Pollution

A slightly trickier problem is that of mass pollution. A classic example of this would be climate change, which will be addressed in the next section. More generally, I define mass pollution as the kind where an individual contributor does not have any appreciable impact on the pollution that is occurring, but there are negative externalities created by the collective pollution of each contributor. For instance, each car driver contributes a negligible amount to the smog in an urban area, but that smog still exists and has a negative effect. How can free market anarchism address this kind of issue?

Let’s start by noting that the most obvious example of this kind of pollution, that which comes from cars, is heavily subsidized by government (publicly owned/built roads, etc.). The government can reduce this kind of pollution via regulation, but markets can provide this kind of regulation in an even more responsive way, which I will demonstrate in a moment.

Legally speaking, collective pollution like this is a different problem from the torts described in other pollution cases. With mass pollution, it is impossible to prove that a specific defendant directly aggressed against a particular plaintiff. This means that a simple appeal to respecting private property does not as clearly resolve this issue.

But that doesn’t mean there are no free market solutions to the problem of mass collective pollution! Mass pollution can lead to specific real risks – risks which can be insured against. For instance, the pollution from cars may increase the risk of asthma. People can insure themselves against the risk of developing asthma, and then insurance companies will have to pay out claims when this occurs. This gives the insurers an incentive to reduce the pollution that increases their liabilities.

Let’s say that insurers that are giving policies to people in a given geographic area expect to pay out $100 million in claims for asthma cases due to pollution (they have the incentive to study issues like this and come to that conclusion). These insurance companies then collectively have an interest in reducing pollution and could spend up to $99 million on these efforts while still coming out ahead. That money can go towards research on exhaust filters, alternative energy sources, etc. They can pay local car dealerships to implement these pollution reducing technologies. They can implement technologies that reduce pollution in an area – maybe there are ways to suck the smog out of the air. And if not, there is certainly a strong incentive to develop them; insurers could invest in companies hoping to solve this problem. Where there are problems to be solved, there is money to be made.

In addition, insurers would be able to charge those directly responsible for pollution – say, car manufacturers, drivers, road owners, etc. – in order to help internalize the externality.

On top of this, there are always social pressures. Stefan Molyneux provides an example of how this could work:

“Let’s say that for some reason DROs didn’t care about the rising costs of air pollution. The first thing I would do is start a Clean Air Company, which would, for a fee, guarantee air quality in certain neighborhoods. How would I achieve this lofty end? Simple: emotional advertising and social pressure. First, I would start running ads showing kids and grandmothers keeling over from asthma. Then I would offer bright yellow “clean air” stickers to anyone who signed up for my program – and for cars which met certain low-pollution guidelines. That way, anyone in a neighborhood who didn’t sign up for my clean air program would be highly visible – all their neighbors would know, and social pressure would do the rest.”

The combination of these incentives would help an anarchist society reach an optimal level of collective pollution. Make no mistake – zero pollution is not optimal, as it would completely destroy industrial civilization. But pollution can be reduced significantly this way, because the incentives in an anarchist system would be properly aligned.

 

For a discussion of global warming, continue on to part 2.

Do You Have Opinions About Things? Then You Should Be An Anarchist

Freedom of Association

Do you have opinions about things?

I am inclined to believe that most people do. I, for example, believe that The Simpsons is a superior TV show than Family Guy. Those who disagree (my girlfriend included) are simply misinformed. The truth of this claim seems so self-evident to me that those who believe otherwise are doing a great disservice to themselves, their families, and the world, by continuing to believe what they believe. As such, it is understandable why I have an impulse to say that they shouldn’t be allowed to prefer Family Guy to The Simpsons.

If everyone were like me, the world would be a better place. But we live in a world with diversity of opinions. No matter how hard I tried, I could never get everyone in the world (or country, or state, or county) to agree with me that The Simpsons is the superior cartoon. Even if I were able to get a law passed which forbade individuals from preferring Family Guy, there would still be people out there who did it anyways. Badasses.

As such, I have only limited means with which to enact my program of changing hearts and minds. But I do have means. For instance, I can point out the not-so-subtle instances where Family Guy recycles a joke that was executed more brilliantly on The Simpsons. I can also encourage more Simpsons-watching; having enough faith in both the correctness of my opinion and my girlfriend’s intelligence, I am confident that some reeducation will successfully convince her of the error of her ways.

What I cannot do is commit acts of aggression against her – for instance, I cannot compel her, “Clockwork Orange” style, to be “re-Neducated”. Anyone can plainly see that this would be both immoral and ineffective.

So why do so many people consider themselves morally superior by advocating acts of aggression against people who believe or behave in a way that they do not approve?

Many conservatives think that they are acting in a morally justified manner when they vote, campaign, or otherwise use political means to make it illegal to use drugs or marry someone of the same gender. Many liberals think they are morally justified to do the same in order to prevent people from engaging in mutually beneficial business arrangements, selling their labor at an agreed upon price, or discriminating against certain groups of individuals.

All of these people have come to devalue the right of free association (banning the use of drugs is not necessarily an example of ignoring freedom of association, but free association is none the less a solution to the problem of drug use – see below). The right to associate with whoever you want is a critical freedom; denied this, you are effectively a slave.

 

In Defense of Walter Block

In January 2014, the New York Times published a libelous article intended to promote the idea that libertarians are a bunch of evil, religious fanatics who would like nothing more than to bring slavery back to America. In this poorly researched and venomous smear campaign masquerading as journalism, several leading libertarians were attacked, including Rand Paul, Lew Rockwell, and most importantly, Walter Block.

According to the NYT, Dr. Block claimed that slavery “wasn’t so bad”, and provided no additional context whatsoever. But context is quite important, as you can see based on what he actually wrote:

“Free association is a very important aspect of liberty. It is crucial. Indeed, its lack was the major problem with slavery. The slaves could not quit. They were forced to ‘associate’ with their masters when they would have vastly preferred not to do so. Otherwise, slavery wasn’t so bad. You could pick cotton, sing songs, be fed nice gruel, etc. The only real problem was that this relationship was compulsory. It violated the law of free association, and that of the slaves’ private property rights in their own persons. The Civil Rights Act of 1964, then, to a much smaller degree of course, made partial slaves of the owners of establishments like Woolworths.”

The steaming pile of shit that Sam Tanenhaus and Jim Rutenberg wrote for the NYT set off a firestorm of controversy, including more attacks against Dr. Block and his good name. I need not go into more detail about the situation, but you can catch up here if you are interested.

The fact remains that Dr. Block is 100% correct. Even the slaves that were treated relatively well were still victims of a serious aggression against their right to associate freely. The conditions don’t matter; the essential characteristic of slavery, what makes it a despicable thing, is that they were forced into the arrangement.

To drive the point home further, imagine the following scenario: you’ve been married ten years to a woman (man) whom you love and are happy to be with. One day, some large men grab you out of your home, drag you to another location 1000 miles away, and force you to marry Kate Upton (Christiano Ronaldo). Your condition has materially improved. None the less, you are still the victim of a heinous crime, and I doubt anyone would disagree with this contention (except, of course, in jest).

And in the case of American chattel slavery, people were not forced to marry Kate Upton – they were forced to do backbreaking labor without pay. Clearly, these are far, far worse conditions, but it is the same moral principle that has been violated in both cases. The violation is to a greater degree in the case of chattel slavery, but it’s substance is the same.

Dr. Block’s critique of the Civil Rights Act is not that black people ought not to have rights. This should be obvious, given the full context included above. On the contrary, Dr. Block, as well as all consistent, committed libertarians are among the staunchest supporters of equal rights for all.

Unfortunately, the Civil Rights Act did not give black people equal rights. Black people already had equal rights, which happened to be consistently violated. What the act did do was to ban (via force) discrimination based on certain arbitrary characteristics, including race, sex and nationality.

A ban on discrimination has very serious implications. To demonstrate, I will quote at length Dr. Block himself:

“The point is that free association, one of the bedrocks of the entire libertarian edifice, is a bulwark against slavery. On the other hand, the so-called Civil Rights Act of 1964 undermines free association. It forces Woolworths to associate with people against their will. Thus, very paradoxically, the Civil Rights Act of 1964 supports slavery. It does so by undermining free association, the violation of which allows slavery. Our friends on the left, amongst whom we must include writers for the New York Times, are thus placed in a bit of a logical quandary. They, of course, as do all men of good will, oppose slavery. But, in their support of the Civil Rights Act of 1964, they attack the law of free association. Logically, they cannot have it both ways. When it comes to slavery, they defend the law of free association, which would allow the slave to quit or not be enslaved in the first place; all well and good. But, when racial discrimination is under discussion, they reject the right of the Woolworths of the world to invoke that self-same right of free association, which would allow discriminators of that ilk to refuse service (decline to associate with) people with whom they do not wish to interact. It would appear that New York Times editors and journalists do not appreciate or even comprehend sarcasm.

But is it not unfair, and harmful, to racial minority groups to allow bigots to discriminate against them in lunch counters, or in employment, or in any other way? No, no and no. Thomas Sowell and Walter Williams have done more than any other two scholars to demonstrate the falsity of this sort of reasoning. If white owned restaurants do not wish to serve black people, the latter will be more desperate, willing to pay more than otherwise, to be able to purchase meals. Thus, profits in doing precisely that will rise, and other entrepreneurs, both white and black, will have more of an incentive to provide such services. If employers discriminate against black workers, this will drive down their wages to lower levels than would otherwise obtain. This, too, sets up enhanced profit opportunities for yet other firms, to hire these people. If some transportation companies insist that African-Americans ride only in the back of the bus, others will spring up to attract such customers; they will earn higher profits, at least initially.  Adam Smith’s “invisible hand” works all throughout the economy. Racial discrimination is impotent to really harm its targets. Why, then, did this aspect of laissez faire capitalism not actually function in the south in the early part of the last century? ‘Twas not due to any “market failure.” Rather, the free enterprise system was not allowed to function, due to Jim Crow laws. For example, in order to set up a competing bus company, one that would allow black people to sit in any section of their vehicles, permission had to be obtained from state(ist) authorities, the very people responsible for the Jim Crow back of the bus law in the first place. Nor must it be thought that initially black people would have to suffer from higher lunch prices, lower salaries, sitting in the back of the bus, etc. These are only theoretical possibilities, if entrepreneurs do not take advantage of profit opportunities. But we have a name for businessmen of that type: bankrupt. For a more detailed explication of the economics of discrimination along these lines see my 2010 book on this topic, herehere or here.” [emphasis in original]

I’m sure that this view is rather controversial. Pointing out the obvious flaws in the Civil Rights Act is a prime violation of the political correctness that has effectively become a religion in the Western world. Hell, I may be making a poor life choice by opening myself up to attack by publicly defending this view. Nevertheless, understanding this point is critical if the world is to move past slavery, racism, and violent aggression, a goal which I, Dr. Block, and most of you out there would agree with.

 

What Can Freedom of Association Do For You?

We have demonstrated that violations of peoples’ right to freely associate is a way to subtly reintroduce a form of (more mild) slavery. You could call this the negative argument for free association. But there is also a positive argument, which is what we will explore next.

Put simply, if the freedom of association were actually respected in modern society, everyone would have the opportunity to live exactly how they want.

If I want my kids to grow up learning the values that are fundamental to me (i.e. having the correct beliefs about cartoons and their quality), I could make that happen. I could, for instance, move to a housing complex where one of the rules is that for every episode of Family Guy that is watched, there must be two episodes of The Simpsons watched to counterbalance it. Similarly, I could enroll my children in a school that embodies values similar to my own. Perhaps their school policy is that teachers are required to show their students The Simpsons whenever they come to school hung over and just want to put on a video.

The example is, of course, absurd. Nevertheless, any violation of my right to do such a thing is morally impermissible. If someone put a gun to my head and said “I will kidnap you and lock you in a cell if you move into that housing complex or enroll your kid in that school,” it would be clear who acted immorally. Similarly, if someone pointed a gun at the owner of that housing complex or school and didn’t allow them to have that policy, this would be equally as immoral. Remember: everyone who lives in that housing complex or goes to that school is there voluntarily.

Unfortunately, all statists advocate for precisely this kind of immoral action.

Consider the conservative who is disgusted by the idea of gay marriage. By supporting a government prohibition on gay marriage, they are using violent force to prevent people from associating freely. As with all violations of the freedom of association, this behavior is despicable.

Conversely, and with exactly the same force of logic, a gay couple cannot morally compel a photographer to work at their wedding, or a baker to make their wedding cake. Forcing another person to work for you in this way merely reintroduces slavery into the picture. The difference between this and chattel slavery is one of degree, not of substance (and yes, for the record, I believe it is a large degree of difference).

But there is a very simple solution to these issues: allow people to associate freely. People who have a moral objection to gay marriage can form their own voluntary community where gay marriage is not recognized. This community would have every right to require some kind of proof of not being gay married in order to get in, and could kick people out for seeking a gay marriage. But the community can NOT prevent gay people from getting married when those people have not already affiliated themselves with said community. Similarly, gay people who are getting married can NOT compel someone else to work at their wedding. They can, however, freely seek out the photography or baking services of anyone they so choose, and no government or individuals can morally prevent them from marrying and seeking out these business owners.

How about another example? People who don’t like drugs can voluntarily join a community of like-minded people, and make it a violation of the community’s rules to possess drugs. To this end, they have every right to require drug tests upon admission to the community and periodically throughout, or to have security guards search through each member’s home for drugs, expelling those members if drugs are found. So long as no one is compelled to join this community and that the community does not forcefully insert itself into the lives of non-members, everything about this arrangement is a-okay! For people who truly abhor the use of drugs, a voluntary community like this would be far more capable of maintaining a drug-free environment than a government that has the same rules, but compels people to associate with it and abide by those rules involuntarily. Good luck trying to stamp out all drug use all across America!

In Israel, there are communities called kibbutzim, which operate on socialist principles. Those who want to live under this kind of economic arrangement are free to do so, and to sever that arrangement at will. Contrast this with the Soviet Union, where everyone in a given geographic area was forced to live by these principles. I don’t need to tell you which of these was the morally sound arrangement, not to mention the more successful one. Even as a die-hard libertarian, I would like to live on a kibbutz for a couple months as a cool life experience – but compelling me to do so would be pure evil.

And so it goes this way for any opinion, economic, social, religious, or otherwise. People ought to be able to form communities with whatever rules they want, and to associate (or not) with whomever they want. There could be communities of all fundamentalist Christians. There could be gay-only communities. There could be drug-free communities and free-drug communities. There could be communities comprised entirely of racists, communities where racial tolerance is mandatory, and communities of only black people, Hispanic people, nudists, women, or midgets. There could be communities where a preference for The Simpsons is strongly enforced, and rival communities (led by heathens such as my girlfriend) where only Family Guy is considered acceptable.

There could just as easily be mixed communities without any of these restrictions, or with any combination of them. Given today’s cultural environment, I would expect that the majority of communities would generally be tolerant and have a minimal number of restrictions. This would cater to the majority of people who aren’t bigots and don’t have any particular interest in restricting the lives of others. And because they would enforce the fewest restrictions, they’d likely be the cheapest as well. Oh, and there’s no reason why these communities need to be geographically separated per se – they can be if they want, but civil associations with different rules could still be interspersed among each other.

The key to all of this is free association, and, more fundamentally, the idea of self-ownership and the protection of property rights. No one may compel anyone to do anything else against their will. The restrictions in any of the examples above would have to be applied only to those who voluntarily agreed to abide by them. Any other arrangement involves committing acts of aggression against innocent people.

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