Recent and Other Relevant Writing

In the past week or so, I've written a few pieces. Also, recent events have made past writing relevant again. So, instead of starting a newsletter like a lot of writers I know and admire, I thought I'd just bring them all together in one place and you can read as you like.

A recurring theme is American ignorance of history writ large. Over at Rare, I wrote about why Black History is important. (Hint: because it's American history.)

Generally speaking, the way America teaches history is deplorable. The watered-down fairy-tale version of our history can be found in our folklore, grade school textbooks, and throughout our media. Race aside for a moment, how we think about war, government, technology, religion, and nearly everything else tends to be framed in false dichotomies and trivial facts without contextualizing how and why events happened, let alone how events were perceived by those who lived through them.
 But in America, despite the best efforts of many, we cannot put race aside. Racism has been omnipresent in American history, but it has been far from static. Slavery and its justifications spawned a particularly awful strain of anti-black racism in America. Racism evolved to seek selfish economic ends and justify punitive unconstitutional laws. It has justified social and economic benefits to some while depriving them to others. It has allowed a tolerance of abuse by both government and private citizens. Racism has broken apart families and even the nation itself.

Relatedly, I wrote here at TBS about FBI director Comey's attempt to view the relationship between law enforcement and black communities historically. (He failed.)

Director Comey, trying to appear magnanimous, said

 “A tragedy of American life…is that young people in “those neighborhoods” too often inherit a legacy of crime and prison. And with that inheritance, they become part of a police officer’s life, and shape the way that officer—whether white or black—sees the world.”

This is circular logic at its most odious. Law enforcement, in its zeal to fight its war on drugs and crime, extracted scores of men from communities and put them into the criminal justice system. This deprived children of fathers and robbed the communities of economic resources. This,in turn, created the young black men that engender cynicism from today’s officers who “often can’t help” it.

While there is much to be said for back-end reforms that help former inmates return to society, the law enforcement executives who go around preaching about how to fix the men and communities they helped break in the first place tests the patience of anyone who recognizes the grotesque unfairness of our so-called justice system. It’s not all law enforcement’s fault, but they are reticent to acknowledge the role they have and continue to play in “those neighborhoods.”

Reclaiming Malcolm X

This weekend marks the 50^th Anniversary of Malcolm X’s assassination. Malcolm has always had a deep influence on my writing, beliefs, and intellectual life. His unflinching commitment to justice and dignity are the hallmarks of his legacy.

Oh, and scaring the hell out of white people.

But seriously, there’s nothing I’ve ever read or seen attributed to Malcolm that would put him anywhere near the Progressive Left, who tend to embrace him. The late author of his most recent major biography, professor Manning Marable, attempted to rationalize his placement in the Progressive pantheon. But there was no real link in his well-researched and well-written biography. At best, he mentioned some “anti-capitalist” rhetoric  in speeches to colleges (text by Damon Root):

In a 1992 speech at Colorado's Metro State College, Columbia University historian Manning Marable praised the black minister and activist Malcolm X for pushing an "uncompromising program which was both antiracist and anticapitalist." As Marable favorably quoted from the former Nation of Islam leader: "You can't have racism without capitalism. If you find antiracists, usually they're socialists or their political philosophy is that of socialism."

In historical context, Malcolm was living in the Cold War political dichotomy. The Soviet Union and other communist nations were pitted squarely against the United States and the capitalist countries. If United States capitalism permitted Jim Crow, backed assassinations in Africa, and supported South African Apartheid, I’d be against it too. But where politics and economics converged to the detriment of American minorities, the culprits were the American government and its tolerance and furtherance of American racism, not a system of free exchange and entrepreneurship.

Indeed, many of Malcolm’s most famous and impassioned speeches dealt with American hypocrisy and the national inability to respect the laws of the Constitution that supposedly guaranteed equal rights. He wasn’t judging America for its ideals or its promise of freedom, rather than its utter and undeniable failure to secure rights for black people.  

I write this not to claim Malcolm for libertarians or, least of all, the American Right. His legacy belongs to black people and America writ large, if they bother to embrace it.

People should remember Malcolm for what he was and what he stood for, not just as a symbol of scaring white people. He believed in the absolute right to self-defense and personal responsibility. He believed in small business and black empowerment.  He wanted jobs and dignity for black people, and he didn’t believe the government as instituted in the United States could provide it.

Similar to what I wrote in my lengthy response to Ta-Nehisi Coates’ remarkable article on reparations, the fundamental divide in civil rights today shouldn’t be about desert or what America should do. Rather, the argument should be about what America could reasonably be expected to do. Just because we elected a black president does not mean the government has gotten remarkably better at delivering on the failed promises of the past two and a half centuries.

We’re still trying to get past the very same phenomenon Malcolm was talking about in this short speech excerpt:

More than 50 years later, so much has not changed.

I don’t know what Malcolm’s macroeconomic prescriptions would be if he were alive today, and I don’t care. But Malcolm was right to be skeptical of government action. Active government aimed at bettering black lives gave us the ’94 Crime Bill,  the 100:1 crack to powder sentencing disparity, Broken Windows, and Stop-and-Frisk. It will take years to repair the damage they caused in black communities, on top of the preexisting problems of poverty, ghettoization, and crumbling infrastructure.

And we simply cannot undo the catastrophe they’ve inflicted on countless black lives. 

Before we ask the government to do anything else, it must recognize the fundamental civil rights of black Americans. Just as Malcolm recognized, whatever the laws say doesn't mean anything if the police can abuse black people and get away with it. And it is undeniable that the police violence against blacks and others continues today through hostile day-to-day interactions, militarization, and wanton brutality.

As Ossie Davis eulogized him, Malcolm was our champion, and we should continue to honor him. We do this by fighting police brutality. We do this by demanding equal rights and human dignity now. And we should do this by any means necessary.

Malcolm X, RIP

bellum medicamenti delenda est

**I don’t know the source for this video, and it has clearly been edited.  But the segments seem to all come from the same speech and thus retain their relevance as individual parts or taken together.

James Comey Can't Handle the Truth

Yesterday, FBI Director James Comey gave an impassioned speech about the “disconnect” between many minority communities in America and the police officers charged with keeping them safe. He listed four “hard truths” that the police and the public need to come to terms with in order to fix the current system.

The first “hard truth” was that “at many points in American history,” law enforcement has been used to oppress ethnic and other minorities through violence, intimidation, and brutality. Well, rather, Comey said, “law enforcement enforced the status quo…that was brutally unfair.”

This is less a hard truth than it is a watered-down history lesson. Convict-lease systems, in many respects, extended slavery well into the 20^th century by using vagrancy and other charges to incarcerate black men and sell them into dangerous industrial slavery. Police were used to enforce segregation and violently break up peaceful marches throughout the Civil Rights Era. And, throughout our history, blacks have been the victims of wanton police violence for any number of reasons from John Lewis to Rodney King to Michael Brown to Eric Garner and countless others in between. Since Emancipation, when they lost the protection as a master’s property, black people—particularly young black men—have had an antagonistic relationship with the police, effectively without interruption.

The second “hard truth” concerned the research that indicated “widespread…unconscious [racial] bias.” (I never thought I’d see the day when the head of the FBI quote a ribald Broadway puppet show to explain “Everyone’s a Little Bit Racist.”)

Again, there’s nothing very hard about this truth. We live in a society in which much of our population can remember Segregation, racial-political assassinations, and other forms of white racial terrorism. Racism isn’t just the uncle who tells nigger jokes after a couple beers. We live in a society that had racism built-in to its foundation—indeed, its founding documents—and killed more than half a million of its own citizens for the right to keep a portion of them in bondage in perpetuity. These same portion of people, mind you, have had the federal government recognize their full panoply of constitutionally guaranteed rights for just over 50 years.

Of course Americans still have racial hang-ups! That a man with such power and gravitas couches the utterly obvious with vulgar puppets and “unsettling research” speaks to the mind-numbing power of American denial.

Director Comey continues, attempting to soften the blow,

“But racial bias isn’t epidemic in those who join law enforcement any more than it is in academia or the arts. In fact, I believe law enforcement overwhelmingly attracts people who want to do good for living[.]”

I’ve had my share of bad professors, but I don’t remember any of them ever choking any of their students to death for writing exam answers on their forearm or shooting them to death for in-class sarcasm.

The monopoly on the use of force held by police officers makes them unlike everyone else in society. If all black Americans had to deal with were clutched purses and off-color jokes from art teachers, we wouldn’t be having this absurd excuse for a “national conversation.” The fear and loathing of young black men costs too many of them their lives at the hands of police officers. That is the hard truth.

The third hard truth actually would be useful, if Director Comey didn’t immediately undermine himself trying to explain it. “Something happens to people in law enforcement….After years of police work, officers often can’t help but be influenced by the cynicism they feel.”

That police work often involves repeated encounters in minority neighborhoods using heavy handed tactics that can’t help but affect how that community views them. The community of Ferguson, Missouri—a mostly black suburb of St. Louis—had nearly 33,000 arrest warrants issued for non-violent offenses in 2013, many of which stem from traffic tickets and related court fees. The town population is 21,135. In the wake of recent protests, arrestees too poor to make bail found themselves in a Dickensian debtors prison, unable to pay for their release.

Let’s ask them about their cynicism.

Director Comey builds a straw-man to set up his fourth and final “hard truth”: officers aren’t racist because they don’t arrest enough “white robbers and drug dealers,” because if they were, it would be easy to fix. It’s because black people do drugs and don’t have jobs so they “become part of [an] officer’s life.” You see, repeated interaction with black people makes police officers cynical and if the black people just had jobs, we wouldn’t be in this situation.

As the Ferguson arrest warrants show, it doesn’t seem to matter whether black people are doing the things that would normally necessitate them becoming part of an officer’s life. Being black and poor puts them in communities that experience frequent and often less-than-cordial contact with police officers.

Director Comey, trying to appear magnanimous, said

“A tragedy of American life…is that young people in “those neighborhoods” too often inherit a legacy of crime and prison. And with that inheritance, they become part of a police officer’s life, and shape the way that officer—whether white or black—sees the world.”

This is circular logic at its most odious. Law enforcement, in its zeal to fight its war on drugs and crime, extracted scores of men from communities and put them into the criminal justice system. This deprived children of fathers and robbed the communities of economic resources. This,in turn, created the young black men that engender cynicism from today’s officers who “often can’t help” it.

While there is much to be said for back-end reforms that help former inmates return to society, the law enforcement executives who go around preaching about how to fix the men and communities they helped break in the first place tests the patience of anyone who recognizes the grotesque unfairness of our so-called justice system. It’s not all law enforcement’s fault, but they are reticent to acknowledge the role they have and continue to play in “those neighborhoods.”

Even in Director Comey’s singular moment of policy sanity, when he recognized that the voluntarily reported data from state and local law enforcement on use-of-force cases is so inadequate it’s virtually useless, he said such deficiencies create space for ““ideological thunderbolts”.…that spark arrest and distrust.”

There were no ideologues or demagogues at the scene of Michael Brown’s body as it lay in a Ferguson street for four hours in August. The protests and outrage were immediate and visceral because of the repeated, well-understood maltreatment the public received from the Ferguson police officers. Law enforcement’s reaction to those protests reaffirmed the animosity that was present well before the national media could find Ferguson on a map.

Director Comey’s pleas for officers to “see” the people they encounter belies his assertion that it’s not about racism in law enforcement:

“Those of us in law enforcement must redouble our efforts to resist bias and prejudice. We must better understand the people we serve and protect—by trying to know, deep in our gut, what it feels like to be a law-abiding young black man walking on the street and encountering law enforcement. We must understand how that young man may see us. We must resist the lazy shortcuts of cynicism and approach him with respect and decency.”  

“Lazy shortcuts of cynicism” is a euphemism for “ignoring the constitutional rights of young black men.” This isn’t a small problem rectified by a gut check imagining how a black boy might see a police officer.  Abuse ignores the limits placed on officers by the Constitution’s equal protection clause and the Bill of Rights. Being young, black, and male is not enough to satisfy “reasonable suspicion” and police officers have an affirmative duty to respect that. Director Comey’s “ideological thunderbolt” boogeymen aside, such unconstitutional behavior is a widespread problem in law enforcement with or without Al Sharpton’s presence. Black and minority communities know this all too well.

As far as Director Comey’s direction that the public “give [police] the space and respect to do their work,” I would ask the director to give the police the same admonition. People should be free from interference from the police unless they are committing a crime against person or property. As the recent NYPD slowdown showed, it is possible to keep the peace even in a large city without issuing thousands of criminal summonses.

It is impossible to fix the chasm of distrust between the police and minorities so long as police continue to abuse blacks and other minorities in the communities in which they live. This is the one and only hard truth the police and the government need to face. The rest is just distraction.

bellum medicamenti delenda est

Rethinking Civil Rights as Property Rights

My latest over at Rare is an attempt to couch the importance of race-conscious policing within a libertarian framework:

As we’ve seen over the years, property rights, even more than tax rates, are more important to the development of markets and growing economies. Simply, if a nation-state wants investment—of both capital and effort—people who make those investments must have a reasonable belief that a return on that investment is possible in a successful venture. A state with shaky property rights—whether expropriated by the state, such as Venezuela, or seized and distributed to the kleptocratic oligarchy, like Russia—is much less likely to draw foreign capital because property can be seized at the whim of the elites. Places where investments are protected by the rule of law, on the other hand, attract capital because investments are protected from state-sanctioned theft.

Civil rights are really no different.

If civil rights protections are widely denied, particularly to one group of people, because they are routinely ignored and capriciously violated by police officers, those rights lose all tangible meaning to that population. Mistreatment by authorities—whether official policies like Stop and Frisk, or tolerance of police brutality, corruption, or homicide—corrodes the integrity of a community. The government loses credibility by effectively nullifying its own authority by arbitrary enforcement of laws (government powers) and the protections for citizens (civil rights).

Read the whole thing here.

bellum medicamenti delenda est

States' Rights vs. Individual Rights

I have an essay up over at Libertarianism.org in which I argue that the "States' Rights" argument for the Confederate secession is an argument that sides with the prerogatives of the state over the inalienable rights of the individual. This has ruffled some feathers within the libertarian community, despite its veracity. If a state has a right of exit that individuals in that state do not (through no crime of their own) then clearly the state's "rights" are preferred over those of the individual.

This doesn't sit well with people who claim that the South was somehow fighting for liberty. Southern "liberty" was a false one because, within a rights framework, a man does not have the liberty to enslave another man.

You'd think people who define their politics as one of liberty would understand that.

Read it here.

bellum medicamenti delenda est

Jeff Toobin's History: Scarcely Related to Reality

Jeffery Toobin’s new piece on Justice Clarence Thomas and his wife Ginni leaves one wanting. I was waiting for a “gotcha” moment or perhaps a revelation about the couple that I hadn’t previously known or, at least, anything of interest that would warrant a few thousand words in the New Yorker.

[sad trombone]

Instead, what I read was a bunch of intimation about the Thomases traveling in conservative social circles, the revelation that Justice Thomas is an originalist (!!!), and a smattering of information about his life on the High Court.

One could have gotten as much useful information off of the justice’s Wiki page.

But what got me about the article wasn’t its complete lack of substance—an appalling lack, though it was, given the outlet and the author’s credentials as an astute Court watcher—but its blatant whitewashing of 14^th Amendment history. Toobin writes:

In his jurisprudence, Thomas may be best known for his belief in a “color-blind Constitution”; that is, one that forbids any form of racial preference or affirmative action. But color blind, for Thomas, is not blind to race. Thomas finds a racial angle on a broad array of issues, including those which appear to be scarcely related to traditional civil rights, like campaign finance or gun control.* In Thomas’s view, the Constitution imposes an ideal of racial self-sufficiency, an extreme version of the philosophy associated with Booker T. Washington, whose portrait hangs in his chambers. (This personal gallery also includes Frederick Douglass, Abraham Lincoln, Ronald Reagan, and Margaret Thatcher.) *emphasis mine

I don't want to get into the campaign finance argument, but the gun rights comment was just too patently ignorant to let go.

Apparently looking to emulate his CNN colleague Wolf Blitzer and become the witless wonder of legal journalism, Toobin exhibits no respect for the substance of either the Heller or McDonald amicus briefs or decisions. Beyond that, Toobin should have a reasonable enough grasp of history—and by reasonable, I mean a basic, non-sanitized history understood by grown-ups—to be familiar with the stripping of blacks' legal protections that came in the post-Reconstruction era and continued up through the Civil Rights Movement of the 1960s. When marauding bands of hooded murderers ride the nights on horseback, the ability to protect one's family from them is very much a civil right—and the systematic removal of those rights doesn't require a special “angle” of jurisprudence to understand. 

UCLA law professor Adam Winkler penned a piece for the September issue of the Atlantic called “The Secret History of Guns.” Professor Winkler spent nearly 2400 words (of roughly 4700) detailing the explicitly race-based nature of various gun control actions—from Andrew Johnson unsuccessfully vetoing the gun rights of Freedmen (the legislative precursors to the 14^th Amendment) to then-Governor Ronald Reagan capitalizing on the spectre of armed Black Panthers at the California capitol. A snippet:

Indisputably, for much of American history, gun-control measures, like many other laws, were used to oppress African Americans. The South had long prohibited blacks, both slave and free, from owning guns. In the North, however, at the end of the Civil War, the Union army allowed soldiers of any color to take home their rifles. Even blacks who hadn’t served could buy guns in the North, amid the glut of firearms produced for the war. President Lincoln had promised a “new birth of freedom,” but many blacks knew that white Southerners were not going to go along easily with such a vision. As one freedman in Louisiana recalled, “I would say to every colored soldier, ‘Bring your gun home.’”

After losing the Civil War, Southern states quickly adopted the Black Codes, laws designed to reestablish white supremacy by dictating what the freedmen could and couldn’t do. One common provision barred blacks from possessing firearms. To enforce the gun ban, white men riding in posses began terrorizing black communities. In January 1866, Harper’s Weekly reported that in Mississippi, such groups had “seized every gun and pistol found in the hands of the (so called) freedmen” in parts of the state. The most infamous of these disarmament posses, of course, was the Ku Klux Klan.

In response to the Black Codes and the mounting atrocities against blacks in the former Confederacy, the North sought to reaffirm the freedmen’s constitutional rights, including their right to possess guns. General Daniel E. Sickles, the commanding Union officer enforcing Reconstruction in South Carolina, ordered in January 1866 that “the constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed.” When South Carolinians ignored Sickles’s order and others like it, Congress passed the Freedmen’s Bureau Act of July 1866, which assured ex-slaves the “full and equal benefit of all laws and proceedings concerning personal liberty … including the constitutional right to bear arms.”

That same year, Congress passed the nation’s first Civil Rights Act, which defined the freedmen as United States citizens and made it a federal offense to deprive them of their rights on the basis of race. Senator James Nye, a supporter of both laws, told his colleagues that the freedmen now had an “equal right to protection, and to keep and bear arms for self-defense.” President Andrew Johnson vetoed both laws. Congress overrode the vetoes and eventually made Johnson the first president to be impeached.

Fittingly, as DC readies itself to officially open the memorial to America's most beloved and famously peaceful civil rights leader, Winkler goes on to note that Martin Luther King Jr. applied for—and was denied—a concealed carry permit for a handgun after his home was bombed.

Apparently Dr. King also subscribed to this “extreme” and peculiar “angle” of civil rights.

It's not that I think Toobin wrote this as a hit piece. (It was, if anything, a miss piece.) But by writing this as he did, he mischaracterized an important and well-documented aspect of traditional civil rights in America that—at the very least—any responsible Court watcher would instantly recognize from recent cases, whether or not he agreed with the policy outcomes. Toobin goes further to imply Thomas relies on a revisionist history that is perceived through his putatively unorthodox originalism and colored by his race. That is simply bullshit. 

Gun rights and self-defense have gone hand-in-hand with civil rights for blacks since the very first Civil Rights Act in our nation's history. It seems Mr. Toobin is the one with a questionable understanding of traditional American civil rights. 

bellum medicamenti delenda est

Rev. Al: "The Gift that Keeps On Giving"

Those words were written by one of my favorite law bloggers, GW Law Prof. Jon Turley. This is why:



This, of course, makes the ramifications of this meeting all the more potent as a political weapon. Sharpton is a crank, a huckster and the Republican political equivalent of manna from heaven.

I've never been a fan of Jesse, but Obama really needs to make his peace with him and ditch Rev. Al...yesterday.

Sen. Reid's Purported Racism

Off-hand, I don't remember how often I've mentioned Senator Harry Reid (D-NV) on this blog, but suffice it to say I doubt I've ever said anything positive about him, let alone committed it to print. He is easily in my top 10 most loathed Democrats and every time I hear him speak I have an urge to throw something at the television. That said, I have a hard time jumping on the "Reid is a racist" bandwagon after this excerpted conversation from 2008, printed in a soon-to-be-released book:

He was wowed by Obama's oratorical gifts and believed that the country was ready to embrace a black presidential candidate, especially one such as Obama -- a "light-skinned" African American "with no Negro dialect, unless he wanted to have one," as he said privately.  Reid was convinced, in fact, that Obama's race would help him more than hurt him in a bid for the Democratic nomination.

Well, yeah.

Sure, "Negro" is an outdated term, but as George Will pointed out on This Week this morning, there is nothing factually wrong with what Reid said. And, whether white people want to recognize it or not, "light-skinned" blacks have historically been favored in society--and thus more politically palatable. It is a fact of which black people are acutely aware.

Save Denzel, most blacks noted for their beauty, trustworthiness, or intelligence are light-skinned.* In the years since the abolition of slavery, even the most recognized civil rights leaders--as opposed to those relegated to support roles--have been predominantly light-skinned, with the much maligned Marcus Garvey being the most notable exception.  This isn't to say there aren't other exceptions, but darker blacks are the exceptions to the unwritten light-skinned preference in both the black community and the American population as a whole.

I'm not saying it's right, mind you. But I remember how we, as black children, had a litany of insults for dark-skinned classmates and, also, their mothers. (cf.) Sure, it was just one aspect of many that were fair-game for ridicule, but there was just never a corollary for those of us 'light-skinneded' with "good hair" (cf.).

As for the dialect: if you didn't see the fundamental difference between the speaking styles evident in Rev. Al Sharpton's Sunday morning sermon-speak and the refined politicians in the debates when he last ran for the White House, you were clearly not paying attention and probably so drunk you went deaf. His "candidacy" was only given any airtime by the DNC because they wanted to throw a bone to the black vote--no one ever thought it was anything but a token gesture to appease the black vote by airing "black" issues. I was insulted that they even let him up on stage to embarrass himself and illustrate the difference between the educational haves and have nots. (That more women weren't similarly insulted by Sarah Palin's pride in her own incompetence four years later is astonishing to me.)

In sum, sure, it's embarrassing for the Senate Majority Leader to have this private conversation aired in public. But for all of my problems with him and what he's said, I'm much more concerned with his hyperbolic slavery analogies to those who oppose welfare for big insurance companies than I am his use of anachronistic language in describing a political reality. Reid is an out-of-touch old white guy, but I've heard nothing to make be believe he's a racist.


*One area of entertainment where skin tone seems to have no limiting effect is comedy. While both the very dark late Robin Harris and Bernie Mac waited longer for mainstream recognition of their acts than other less-funny comedians, I would attribute that to the blue nature of their comedy, not the very dark shade of their skin.

Situational Constitutionalism

In recognition of the anniversary of the 2001 attacks today, I wrote in my Twitter feed and similarly on my facebook status:

Trampling on the protections provided by the Constitution is no way to honor the fallen.

While I intended it to reference those who are wont to say "9/11 changed everything" or some other pap to justify torture, wiretaps, indefinite detention without charge etc. initiated by the Bush administration and--for the most part--wholeheartedly continued by the Obama administration, it dawned on me that some may take it as some sort of backhanded slap at the health care reform plans currently festering in Congress. Well, it wasn't, but since we're on the subject...

I am sick and tired of the Left (I patently refuse to refer to people who work to reestablish the age-old power of the state over people's lives as "progressive") complaining about the unconstitutionality of Bush administration actions while simultaneously holding in contempt those of us who read Article 1,§ 8 of the Constitution and Amendments 9 and 10 of the Bill of Rights as limits upon government action. If the Necessary and Proper, General Welfare, and Commerce clauses are to be read so broadly as to nullify the major safeguards against tyranny (e.g., arbitary seizure and reallocation of wealth and property) enshrined in our Founding documents, then those documents cease to mean anything at all. Explicit directives from the document upon which all federal laws are (meant to be) built are not to be casually tossed aside because legislators or presidents purportedly mean/meant well.

The Left is just as guilty as the Right of situational constitutionalism--standing by the document when its suits their particular policy interests, but ignoring it when the unambiguous meaning of the text prohibits the excessive power the government needs to implement their preferred goals. Either the Constitution grants the power or it does not. If it does not, the government does not legitimately have that power, in spite of what they or anyone else thinks is the "right thing to do."

If you don't like it, change the Constitution. Short of that, simply ignoring the text to play Robin Hood (or Jack Bauer, for that matter) is sickening and ignominious hypocrisy.

Update: Further comment on the Millhiser piece I linked to above, here.

Perhaps the Most Preposterous Thought Ever Printed in the New York Times

And that is saying something.

But, without further ado, I present to you the unfathomable Thomas Friedman:

There is only one thing worse than one-party autocracy, and that is one-party democracy, which is what we have in America today.

One-party autocracy certainly has its drawbacks. But when it is led by a reasonably enlightened group of people, as China is today, it can also have great advantages.That one party can just impose the politically difficult but critically important policies needed to move a society forward in the 21st century. It is not an accident that China is committed to overtaking us in electric cars, solar power, energy efficiency, batteries, nuclear power and wind power. China's leaders understand that in a world of exploding populations and rising emerging-market middle classes, demand for clean power and energy efficiency is going to soar. Beijing wants to make sure that it owns that industry and is ordering the policies to do that, including boosting gasoline prices, from the top down...Our one-party democracy is worse.

For some reason, when I think of China and green automobiles, I think of this:


'Benevolent' dictatorship/autocracy beats the deliberative process of democratic republics because, dammit, those people can get things done!

Just don't look at the man behind the curtain jailing, censoring, beating, and executing untold numbers of dissenters, choking-off less desirable political content on the internet, forcing abortions on families, and only allowing markets to flourish in certain geographic locations while so many people still live in the countryside without basic amenities those contemptible and inefficient free nations have had for, oh, about 100 years.

There aren't words in our language strong enough to describe the abject imbecility of this column.

H/T: John Tabin and Matt Welch

more on this by Will Wilkinson and Kenneth Anderson.

A Libertarian Defense of Lincoln

In libertarian circles, Abraham Lincoln isn't a president that gets a whole lot of respect. There are a few reasons for this, including:

1. Lincoln illegally suspended habeas corpus, barricaded cities and stretched the limits of executive power well-beyond any measure, even with generous interpretation, that could be granted by the Constitution


2. The Union that emerged from the Civil War was one of much more centralized power and, in many respects, anathema to the vision of the Founders


3. The South had a right to secession and thus it was wrong for Lincoln to attempt to keep them in the Union


4. A hefty Southern strand of libertarian thought that either mythologizes the Old South or, at least, tends to apologize for it by insisting that the "War of Northern Aggression" was not in fact fought over slavery. Not surprisingly, this is bolstered by a number of Southern adherents to libertarianism who refuse to face the awful history that was the antebellum American South

This first point is, by far, the strongest critique of Lincoln. In the most extraordinary time in U.S. history, and with Congress out of session, Lincoln suspended habeas corpus and in doing so effectively ordered martial law wherever the U.S. military happened to be. Several of his subsequent actions, including incarceration of seditious journalists, were thrown out by the U.S. Supreme Court after the war. As a strict adherent to the Constitution, I feel more than a little compunction saying "The Constitution is not a suicide pact" and letting it go at that, but if the country was falling apart all around me, with spies all over the capital city and the rest of the North, I'd have a hard time condemning him for most of what he did.

The second point is quite true, but fails to grip the severity with which the individual states abused their relative freedom from central control. This severity was played out again after Reconstruction, as they crippled the black communities with economic, educational, social and legal segregation up to and including intimidation, fraud, beatings and murder. It is no exaggeration that the Rule of Law--that is, the protection of (and consequently FROM) the law--simply did not apply to blacks in the South. There was--and human nature as it is, remains--a valid reason the central government was a necessary trump over the "States Rights." Inalienable human rights are not dependent on jurisdiction. Without a uniting and overseeing eye, those rights outlined in our Founding documents, would stand for nothing. The rights of the states to govern themselves should be respected only up to the point they abuse the fundamental rights of their citizens. If those so foolish as to proclaim States' Rights as absolute--when the right to free speech is clearly not (e.g., assault, fraud, etc.)--wish to place blame on the growth of the federal government, they need look no further than the abuses of the antebellum and Jim Crow Souths.

Thirdly, to hold up the Declaration of Independence as a document of liberty, one must recognize it is, indeed, a declaration of secession. Thus, if the Declaration is legitimate, then secession must be legitimate under some circumstances. What many libertarians fail to grasp is the "under some circumstances" part. Seceeding from a nation in order to keep other members of that nation in chains does NOT rise above the level of "light and transient" cause, to use Jefferson's words--not to mention being wholly unjust.

The purpose of the Declaration was to explain to the world the rightness of the Founders' actions and to list the reasons why prudence dictated they sever their ties to Great Britain. Four southern states--South Carolina, Georgia, Texas, and Mississippi--did the same when they decided they were to secede. Simply glancing over these four documents, unquestionably modeled on the 1776 Declaration, gives the reader a rather clear sense of the cause for separation: chattel slavery. The following are excerpted from the four declarations of secession.

Georgia:

The people of Georgia having dissolved their political connection with the Government of the United States of America, present to their confederates and the world the causes which have led to the separation. For the last ten years we have had numerous and serious causes of complaint against our non-slave-holding confederate States with reference to the subject of African slavery.

Mississippi:

In the momentous step which our State has taken of dissolving its connection with the government of which we so long formed a part, it is but just that we should declare the prominent reasons which have induced our course.

Our position is thoroughly identified with the institution of slavery-- the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth.

South Carolina:

The people of the State of South Carolina, in Convention assembled, on the 26th day of April, A.D., 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other slaveholding States, she forbore at that time to exercise this right. Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue.
...

The ends for which the Constitution was framed are declared by itself to be "to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."

These ends it endeavored to accomplish by a Federal Government, in which each State was recognized as an equal, and had separate control over its own institutions. The right of property in slaves was recognized by giving to free persons distinct political rights, by giving them the right to represent, and burthening them with direct taxes for three-fifths of their slaves; by authorizing the importation of slaves for twenty years; and by stipulating for the rendition of fugitives from labor.

We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States.

Texas:

Texas abandoned her separate national existence and consented to become one of the Confederated Union to promote her welfare, insure domestic tranquility and secure more substantially the blessings of peace and liberty to her people. She was received into the confederacy with her own constitution, under the guarantee of the federal constitution and the compact of annexation, that she should enjoy these blessings. She was received as a commonwealth holding, maintaining and protecting the institution known as negro slavery-- the servitude of the African to the white race within her limits-- a relation that had existed from the first settlement of her wilderness by the white race, and which her people intended should exist in all future time. Her institutions and geographical position established the strongest ties between her and other slave-holding States of the confederacy. Those ties have been strengthened by association. But what has been the course of the government of the United States, and of the people and authorities of the non-slave-holding States, since our connection with them?

For all the world to see, to justify their actions, and with no less than 82 direct references to slavery or servitude contained in just those four documents, the seceding states proudly asserted that slavery--and its perceived abolition--was the primary and compelling motive for their secession and, consequently, the singular cause for the war. While it would be disingenuous to say that the North began the war with the intent to end slavery, it would be nothing short of delusion to say the South did not fight to preserve it. After all, giving deference to their legendary honor, one would think we could take them at their word...

For all his faults, missteps, and, on several occasions, blatant abuses of his power, Lincoln is a president to be respected, and whom I personally revere. While he was no libertarian himself, in toto, he did more for American freedom as president than any man before or since. He fought against an illegitimate government bent on and created for the perpetuation of human bondage--and he won. It is an accomplishment, I think, too often lost on contemporary Americans.

Today is the 200th anniversary of Abraham Lincoln's birth, and it should be celebrated. Happy birthday, Mr. Lincoln.

Happy Civil Rights Day!

Ok, so it isn't "Civil Rights Day,"--but it should be.

With all due respect to Martin Luther King, Jr. and what he and his organizations were able to accomplish, he was just a man, and an imperfect one at that. The idea--that of protected freedoms and rights for all--is what is important to remember today (and every day). Many heroic and capable people preceded King in life and death, in addition to other contemporaries that preached along side him--and, indeed, in opposition to him. These men and women too should be celebrated and remembered--and, of course, their messages should not be lost to history.

It is just barely an overstatement to say that U.S. History texts describe the sum of the struggle for freedom for American blacks as the arrivals of Harriet Tubman, Abraham Lincoln, and MLK. This is more a function of poor history texts and the way history is taught in America than any deliberate "whitewashing" of the American tale, but it is problematic nonetheless.

While one would think it would be hard to overstate the accomplishments of such a remarkable man, such is the sorry state of things. The messages of men like Martin Delany, Frederick Douglass and Malcolm X-- of personal responsibility, entrepreneurship, and self-improvement free from government interference--have been nearly entirely subsumed into that of King and his followers, in spite of the very great differences in philosophies. King has become the end-all/be-all of Civil Rights heroes and martyrs--now standing for anything and everything that freedom meant, despite the fact that King did not support everything now assigned to him.

So, in the spirit of my Civil Rights Day, I share with you one of my favorite clips of a man I admire, discussing a quote from another man I admire, that I have shared on this blog before:

Why I Voted

I have some friends who refused to vote today for one of two main reasons: 1) The economic "irrationality" of voting. 2) The principled opposition that a vote endorses the legitimacy of the offices, authority, and/or the inherently unfair rules by which most candidates are chosen.

Mathematically speaking, the first objection is a solid one. The second objection I don't really subscribe to, though I am somewhat sympathetic to it in theory.

What trumps these, however, is all-too-simple for me:



My great-grandfather was born to a slave. My grandfather was born in Meridian, Mississippi in 1883. My father in Fort Wayne, Indiana in 1928. None of these men were born with the expectation of voting rights at any point in their lives. I am of the first familial generation that was granted that right by people who never lived to exercise it.

So, while my friends have their rights to deny themselves a right my our forebears fought, bled, and died for--I proudly exercised my right to vote today.

Call me sentimental.

Breaking News: ATF "Disrupts" Plot to Kill Obama; Scores of Black People

And the racists are mobilizing:

WASHINGTON (AP) - The ATF says it has broken up a plot to assassinate Democratic presidential candidate Barack Obama and shoot or decapitate 102 black people in a Tennessee murder spree.

In court records unsealed Monday, agents said they disrupted plans to rob a gun store and target an unnamed predominantly African-American high school by two neo-Nazi skinheads.

I don't know how competent these idiots were or how close they could have gotten, but I expect that more of the same is coming. The backlash against a black President may be both dramatic and bloody -- and not just for the (presumable) president.

Obviously, I don't think any violence will be widespread in the sense that states are going to secede again, but there are enough hate groups that may test the patience of the US security apparatus-- probably to the point that a Democratic majority Congress would go to extraordinary (and extra-constitutional) lengths to attempt to bring them under control. I certainly hope we won't have a spate of domestic terror cells, but I'd be lying if I said that it wasn't a small fear of mine.

Unconstitutional impediments to assembly, speech, and--of course--firearms, will only fuel the fire of the hate groups and perhaps cause them to grow, albeit to rather limited (thankfully) extent. The problem with this is not that terror-minded hate groups will be stopped before killing or otherwise harming people--I'm all for that. But perfectly legal yet marginal fringe groups might be targeted in anti-racist crackdowns just because some group of white boys with guns decides to name themselves "militia." It isn't as if the government doesn't already cast too wide of net for terror suspects. (You know, like the environmentalists who ended up on terror lists in Maryland.)

If and when that happens, the same Democrats and other liberals who are (correctly) arguing against domestic wiretapping and treatment of prisoners at Guantanamo may be calling for similar measures--at least as they apply to surveillance and suspicion-- to be used against our own citizens who may or may not be associated with domestic racial terror.

The problem with fighting for liberty is that often you're stuck protecting the rights of bastards. But being a bastard does not equate being a terrorist--even if you're a racist bastard with guns. I have a feeling that the political dynamics of the personal liberties debate may change once the targeted people under suspicion aren't named Khalid and Abdul, but rather Kenny and Cletus.

Let's hope we don't find out.

Hat tip: NJ Ray

Another One Bites the Dust

In case you missed it throughout the weekend festivities, Sen. Jesse Helms died on July 4. I think one Agitator commenter put it best:

Black man to be elected president over Jesse Helms dead body. News at 11.

Helms was an effective senator, a masterful politician...and a racist S.O.B. 'til the end.


Men like Helms have been revered in both life and death as great senators, never minding their despicable histories--making their careers fighting the 'Lost Cause' or, at the very least in Helms' case, using racial bigotry to his electoral advantage. Under the guidance of the Sam Rayburns and Richard Russells of the old Southern Democrats, these men did everything they could to continue segregation, discrimination and racism.

I don't buy for a moment the post-Civil Rights era apologies of Sens. Thurmond, Byrd and others--so, in one respect, I suppose I have to give credit to Helms for being true to his vile, repugnant, ugly, racist, bigoted self.

Oh, and leave it to the these guys to chime in:

Ed Feulner, president of the U.S.-based conservative Heritage Foundation, said Helms was "one of the most consequential figures of the 20th century."
"Along with Barry Goldwater and Ronald Reagan, he helped establish the conservative movement and became a powerful voice for free markets and free people," he said.

Lumping Helms in with Goldwater and Reagan is irresponsible, disgusting, and asinine. While it is true that Goldwater voted against the Civil Rights Act, he did so on federalism grounds--not a pronounced and unabashed disdain for black people. I've always regretted his vote on that act and make no excuses for it--he should have voted differently. That said, a leading conservative leader today tying Helms to the two greatest conservative politicians of the 20th century tarnishes a legacy already in tatters from the absurd policies put forth in conservatism's name by the Bush administration.

Helms is dead, and America is a better place for it.

Good riddance.

Ron Paul talks MLK on CNN

and I'm not impressed.

I think it was a good thing for him to repudiate what was written in the Ron Paul Newsletters, although I think he got caught being disingenuous when Blitzer asked him if he ever read his newsletters. But, no matter.

Paul's invocation of the be-all-end-all of Civil Rights Movement name-dropping annoyed me. Martin Luther King, Jr., was a brave and remarkable man. And yes, there were specific attacks against MLK in the newsletters, so his mentioning was probably a necessity on some level. However, using the name so much and calling MLK a "libertarian" is just plain wrong.

In Letter From a Birmingham Jail,** King proposed a "G.I. Bill" for blacks -- a subsidization of black people by the federal government. In some ways, it was one of the earliest calls for reparations in black American history. (Furthermore, MLK's strict adherence to non-violence that Paul applauded is, when applied while under attack, an abandonment of self-defense and self-ownership.)

What is lost on so many people who do not understand the length and breadth of the Civil Rights movement is that MLK, particularly toward the end of his life, was indeed becoming more radical in his thinking -- and more socialist. For all his good intent, the path MLK would have taken the nation was toward further black enslavement, at least economically speaking. (This was evidenced and played out in part by LBJ's 'War on Poverty').

Malcolm X, on the other hand, was very much in favor of self-empowerment for blacks. I will grant, fully, that during his time at NOI, his rhetoric was disparaging toward whites, conspiratorial to a very paranoid degree, and arguably flat-out racist. (But then again, he wasn't running for president, now was he?)

But upon even passive analysis, his ideas toward the end of his life -- and the positive ideas leftover from his NOI days -- would be much closer to "libertarian" than anything King ever suggested:

-development of business skills and entrepreneurship
-gun rights/self-defense
-mistrust of the government and political parties
-personal responsibility
-self-education
-the importance of liberty (which I blogged about here, with video)

I would not go so far to say that Malcolm was a libertarian, but his libertarian credentials outshine MLK's by a long shot.


Thus, Paul could have as easily said "Some of my best friends are black" and it would have meant just as much to me -- and would perhaps be closer to the truth than "MLK was a libertarian."

I do believe Paul did the right thing by finally addressing this personally.

I just wish he had been better at it.

ADDENDUM: My former colleagues at reason take issue with Paul's statement here.

UPDATE: And David Boaz breaks Cato's silence on the rEVOLution here. Long list of RP under-bus-tossing here.

**UPDATE II (2014): I just happened upon this post again. I stand by it, but at some point  in the years since I wrote it realized King's endorsement of an expansion of the GI Bill wasn't part of the Letter from a Birmingham Jail, which I had believed for some time. I can't remember where I read it, but I'm 99% sure he publicly advocated for it in print. Even if I'm wrong, the point holds that he was, among other things, a vocal proponent of more Progressive government aid and while in favor of liberty in the broad sense, not in a libertarian one vis-a-vis the proper role of government in the economic sphere.

Racism and Marriage Licenses

Alex Tabarrok makes some good points over at MR about the hysteria surrounding gay marriage:

I think it's time to restore freedom of contract to marriage. Why should two men, for example, be denied the same rights to contract as are allowed to a man and a woman? Far from ending civilization the extension of the bourgeoisie concept of contract ever further is the epitome of civilization. Our modern concept of marriage, for example, is simply one instantiation of the idea of contract.

Alex cites this piece by Stephanie Coontz in the NYT, where she notes:

By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce.

I am usually hesitant to compare black/race issues with gay issues because I think the two are too often mistakenly conflated -- most often citing "just like blacks used to be" or some similar exaggeration. In the marriage debate, however, I think the comparison is completely fair. It is equally asinine to think that there is a legitimate public interest in precluding the benefits of a marriage contract between consenting adults whether they are of different races or of the same sex.

The 'sanctity of marriage' argument is just bullshit in the shape of a cross.

Three Cheers Tokes for Federalism!

Some encouraging news out of California:

The decision by a unanimous three-judge panel of the 4th District Court of Appeal to uphold a court order directing Garden Grove police to return marijuana seized from a properly certified patient is a welcome validation of the law approved by voters 11 years ago. Since it clarifies the duty of state and local law enforcement agencies – to uphold state law, not to ignore it and seek to enforce federal law – it should end the noxious and widespread practice of simply seizing medical marijuana from patients who are legally entitled to possess it.

Medical marijuana may provide an excellent catalyst to get more lefties to be respectful of federalism. The federal 'War on Drugs' is perhaps the best example to demonstrate that concentrating so much power in the federal government runs counter to the interests of personal liberty.

Putting Torture In Context

Over at the Daily Dish, Sullivan points out the history of torture in America. Like so many recently, he looks to the GOP to reconcile itself to its past...but I reiterate, its not just the GOP or even the South that needs to come to terms with the gruesome history of racism in America.

It's Not Ridiculous...

but it is completely awesome:

07-290 DISTRICT OF COLUMBIA, ET AL. V. HELLER, DICK A.
The petition for a writ of certiorari is granted limited to
the following question: Whether the following provisions, D.C.
Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the
Second Amendment rights of individuals who are not affiliated
with any state-regulated militia, but who wish to keep handguns
and other firearms for private use in their homes?

This sets a pretty high bar for the giving of gifts for Thanksgiving!