Category Archives: ethics

Government and Due Process

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Senator Barbara Boxer (D, CA) and Senate Majority Leader Harry Reid (D, UT) want to bar American citizens from leaving the country solely on the basis of the say so one of the collections of President Obama’s decried “unelected officials”—this time the bureaucrats of the IRS.

Boxer’s Senate Bill 1813, “Moving Ahead for Progress in the 21st Century Act” (MAP-21), is “AN ACT To reauthorize Federal-aid highway and highway safety construction programs, and for other purposes.”  Reid tacked on to this his amendment, which reads in part (it’s in Section 40304 of this 1,700 page bill):

If the Secretary [of the Treasury] receives certification by the Commissioner of Internal Revenue that any individual has a seriously delinquent tax debt in an amount in excess of $50,000, the Secretary shall transmit such certification to the Secretary of State for action with respect to denial, revocation, or limitation of a passport….

Hmm….

The Editor of the Congressional Quarterly publication’s Senate Watch, Niels Lesniewski, insists that such a thing has legal precedent:

Existing law says that passports may not be reviewed for applicants owing child support in excess of $2,500.  So I think supporters would say: “You can’t get a passport if you don’t pay child support, but you can get a passport if you don’t pay taxes?”

But this is a red herring.  The deadbeat parent has been found in open court to be guilty of the arrearage.  An IRS filing of notice, which is all Reid’s amendment requires, is not even an accusation of tax evasion, as Constitutional Lawyer Angel Reyes points out, much less an actual conviction for tax evasion.  Reyes expanded on the point:

It takes away your right to enter or exit the country based upon a non-judicial IRS determination that you owe taxes.  It’s a scary thought that our congressional representatives want to give the IRS the power to detain US citizens over taxes, which could very well be in dispute.

Our Bill of Rights’ 3rd, 4th, 5th, 6th, and 7th Amendments each carry very a strongly implied right to due process, and the 14th Amendment makes that right explicit.  But, then, as the Progressive opinionist, Ezra Klein, has already pronounced, the Constitution isn’t binding on anyone.

This is a bad amendment, and one marvels at the cynicism of the Progressive Senators in attaching such a wholly irrelevant amendment to what is, at bottom, an attempt at a jobs bill.  If they really believed in the legitimacy of this concept, they’d put it into a separate bill of its own and bring it to the floor for open debate.

One marvels further, though, at the margin of passage: this bill passed out of the Senate on a 74-22 vote.  There are entirely too many RINOs in the Senate.

A Bill Under the Commerce Clause

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Some view the Constitution’s Commerce Clause as granting to the Congress expansive powers of Federal control of intrastate activities, individual activities, and even the thoughts of private citizens.  A supine Supreme Court has supported this view.  Wickard v Filburn, for instance, agrees that Congress can regulate privately carried out agricultural activities, and NLRB v Jones & Laughlin extends that to manufacturing activity that occurs wholly within a state—an activity that prior to Jones & Laughlin was considered separate and distinct from any commerce-related process.  With these rulings in mind, a Federal District judge, Gladys Kessler, has even held that this Commerce Clause control extends into the private thoughts of individual citizens (Mead v Holder).

The line of reasoning for this startling evolution can be summarized in Chief Justice Charles Evans Hughes’ majority opinion in Jones & Laughlin: activities that are intrastate in character (which rather tautologically includes those individual activities) are regulable under the Commerce Clause when they bear a “close and substantial relation to interstate commerce.”

Agriculture is such an intrastate activity when the processes of field preparation, sewing, growing, and harvesting are considered separately, and separately from any subsequent process of bringing that harvest to market.  Likewise, manufacturing is such an intrastate activity when the processes of gathering equipment and locally procured supplies, the assembly of those supplies into finished product, and their in-plant inspection are considered separately, and separately from any subsequent process of bringing those finished products to market.  However, since Wickard and Jones & Laughlin hold such activities to bear a “close and substantial relation to interstate commerce,” it is reasonable to hold that any activity that impacts those processes of agriculture and manufacturing also bear a “close and substantial relation to interstate commerce.”  Such activities here plainly include union strikes and boycotts.

Accordingly, I propose a simple, one-page bill (no 2,000+ pages for me) that bans union strikes and boycotts, citing the Commerce Clause as the constitutional authority for such a ban.

It would be interesting to hear the Commerce Clause objections to such a bill.  What rationalizations might be offered?

A Thought on Self Defense

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The uproar over a shooting in Florida brings up the concept of self-defense, and Joe Palazzolo and Rob Barry raise a number of points about this in their The Wall Street Journal op-ed.  In it, they write about “so-called justifiable homicides,” “leeway to attack and even kill someone who is threatening them,” and a victim’s duty to retreat when threatened or attacked.

What is self-defense; do we have a right to it; and if so, are there any limits to self-defense or to that right?

Our Declaration of Independence acknowledges the existence of a right to self-defense as a component of our suite of inalienable rights endowed by our Creator and so inherent in the fabric of our being:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Plainly, the right to Life includes within it a right to defend, for ourselves, our own Lives and those of our families—and those of others related to us only through friendship and those not related at all.  “All men are created equal:” thus the right to defend a life includes the right—now the obligation—to assist in the defense of another’s life.  And this defense, and its underlying right, must come from within each of us.  We can—and we do through our social compact, of which our Declaration is our principles statement—assign to government certain tasks and obligations to help execute that self-defense.  However, we cannot surrender our right to do so to that government, for two reasons: first, as a part of our Creator’s endowment, the right is not ours to give away.  Second, and of secular and immediate importance, were we to surrender primary responsibility for our self-defense to a government, we would lose that right altogether.  By that surrender, that “right” becomes a thing that government can grant or withdraw at its whim.  At best, when the bad man comes, and seconds count, the police will be only minutes away.

Having demonstrated the existence of the right, what is it, exactly to which we have a right?  What is self-defense?  I described one aspect of it above: “a right to defend our own Lives and those of our families—and those of others related to us only through friendship and those not related at all.”  But there’s more.  Self-defense includes defense of all property, not just our property in our body: we also have a property in our thoughts, our Liberties, and our physical property.  Our thoughts are inherent in both our lives and our Happiness, as are our Liberties, and our physical property is part of the outgrowth of our pursuit of Happiness* (and without which, our Liberties and Lives are severely constrained, if they exist in this state at all.  The components of our endowment are tightly intertwined with each other, but that’s the subject of another post). Thus, we also have an inherent right to defend our possessions (and thoughts and Liberties) from attackers.

Given all of that, there can be no possibility of a “duty to retreat.”  There is no defense if we must give way to an attacker based on where we might be located at the time of the attack.  Our right of self-defense is in us, it is not in any location we might momentarily occupy.  There is no defense, if we must give up our property—any aspect of it—to a criminal’s demand, and hope that the property can be recovered intact by “authorities.”  Indeed, any retreat, of its nature, carries within it the characteristic of allowing our attacker to strike first, or threaten to do so.  Our Lives, if taken by our attacker, cannot be recovered at all, no matter how dedicated and efficient those authorities.  Retreat is only a tactical decision, driven by the exigencies of particular circumstances; it is never an obligation.

What then, are the limits to our right of self-defense?  The short answer is when the behavior ceases to be defensive and becomes offensive.  But it’s not that simple: no man has an obligation to allow his attacker to shoot, or stab, or otherwise strike first and only then to respond.  Clearly, when faced with such a threat, our right of self-defense includes a right to pre-empt our attacker’s potentially fatal assault: we can shoot first.  A couple of examples will serve to illustrate legitimate limits to our right of self-defense.

Our right, for instance, does not permit us simply to arrange our defense deliberately to kill our attacker.  That man also has a right to his Life, for all that he is endangering ours with his attack. (But we have no obligation to arrange our defense deliberately not to kill our attacker.  We have no obligation to handicap ourselves in so potentially a fatal-to-us way.)  If we kill him in the course of our defense, that’s unfortunate, but no wrong redounds to us.  If we kill him deliberately and as our goal, that legitimately can amount to one of the variations of murder.

Our right to self-defense does not allow us to hunt down our attacker in order to kill him.  We can chase him in an attempt to recover our property, and if in the course of that pursuit a struggle occurs and we kill our attacker in that struggle, we’re still engaged in self-defense.  However, we cannot chase our attacker with the goal simply of killing him, even if we recover our property in the course of that killing.  Nor, if we lose contact with our attacker in the course of our pursuit, can we then search for him in a separate act (although we certainly can aid the authorities in their search) and kill him after a successful hunt.

But if our right to Life enjoins us to help defend another’s life, how are we enabled to take another’s life, ostensibly in self-defense?  We are not so enabled while the taking is a goal.  But our right to our own Life is the primary interest.  We must protect ourselves first: we cannot see to any of our duties, including that to assist the defense of another’s life, if we are not safe and sound.  If we must kill in order to fulfill that primary interest, this is unfortunate, but it may be a necessary adjunct to our defense of our properties—whether in our selves, or our thoughts, or out Liberties, or our physical property.

As to limits on the right itself of self-defense, there is a very critical one, alluded to above: it is a part of our existence.  We neither can, nor may, surrender that right or any part of it to anyone else or to any authority.  Even that government which we hire, under our social compact, to help us protect all of our inalienable rights is hired to help us, not to substitute for us.

*As John Adams noted in his 1780 Massachusetts Constitution, in Article I of the First Part, “All men are born free and independent, and have certain natural, essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.”

And German Governance

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The following is excerpted from Spiegel Online:

SPIEGEL: Facebook is only eight years old, has annual revenues of $3.7 billion and, following its stock market debut, could be worth $100 billion. Is that normal?

[Co-founder of German business software giant SAP, Hasso] Plattner: Oh God, normal!? That’s just what America is like. They’re unbeatable when it comes to advertising. Don’t ask me if I think it’s a good thing …

SPIEGEL: Well, do you think it’s a good thing?

Plattner: You’re bombarded with advertising all day long there. But that’s just how it works. You really have to take your hat off to the Americans — the way they reinvent themselves again and again, especially in the high-tech sector.

SPIEGEL: But that could also be possible in Germany.

Plattner: A lot of the framework conditions are not right here. For instance, it’s much more difficult to obtain venture capital. But you need that so your company can quickly achieve a critical size. And anyone who follows all the daily debates in Germany that are critical of capitalism and growth could come to the conclusion that we Germans don’t want to be successful anymore.

…

Plattner: …it’s really only in Germany that I’m asked time and again such strange things like: Why growth? Or: Why does the database have to be so much faster? That just creates stress … And that, even though for the past 40 years IT has been almost exclusively about the question of speed. Americans are much more open and bolder in this respect. Their attitude has also long since been adopted by the Indians and the Chinese, which makes the competition even more difficult for us.

We, the people, have to take care, also, or we’re no better at governance than a top-down governance in China.  At least, though, we can correct our own mistakes.

Chinese Governance

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The rumors of a coup in the People’s Republic of China serve to illustrate the PRC’s concept of governance.

Its economic success over the last generation and a half, or so (roughly 30 years), seems apparent.  It has accumulated the world’s largest stash of foreign currency reserves (some $3.2 trillion), and it has grown into the world’s second largest economy, albeit with the world’s largest population across which to amortize that economy.  Some even argue that this success demonstrates the superiority of the Chinese method of centrally managing an economy.  After all, those folks say, the Chinese government doesn’t waste time debating; they simply decide, and promptly.  Moreover, specific leadership candidates are selected carefully and only after a proven performance record.

But at what cost has come this success?  That’s what the coup rumors highlight.  The power struggle underway (whether it’s really a coup in progress or not is unimportant to this post) is purely a Party struggle; the people of China are not at all involved other than being stuck with living with the outcome.

The current showdown—of whatever form—threatens the carefully planned change in the party and national leadership, including seven of the nine positions on the Politburo Standing Committee.  The thrust of the argument seems to be whether China should go back to a more “revolutionary”—i.e., more directed from above—form of government or reforms should be instituted that lead toward a more constitutional state.

But even at best, whose constitution?  Notice where this argument is occurring: internally, at the top levels of PRC’s Communist Party and People’s Liberation Army government—not among the people.  In fact, the people may also be discussing this, but since they have no say in their own government, their discussions “are unimportant, and [government] does not hear them.”

The coup rumors illustrate another aspect of governance PRC-style.  The rumors began appearing about two weeks ago via Sina Weibo (“China microwave” or “China microblog”), the Chinese version of Twitter.  The government promptly deleted those messages.  Now, searches for key words like “gunfire” or “Changan Avenue” (where much of the Chinese leadership lives and where gunfire allegedly was heard during the “coup”) are answered with this message:

These terms are not being displayed in accordance with the applicable laws, regulations and political guidelines.

Here is Chinese free speech.

The PRC is a one-party dictatorship: there are no checks or balances, as from an independent judiciary or legislature.  The people are unrepresented by individuals of their own choosing in an elected government.   In sum, the people are not Sovereign in their own country—the government that has placed itself above them is.

And that economic success?  Yawning cracks in it have appeared.  The vast migration over the last several years from the hinterland to the coastal cities, where the jobs are, have led to severe housing shortages in those cities, shortages exacerbated by those cities’ governmental requirements that the people must be registered with the city government in order to get city services like utilities, housing, and so on.  The migrants are denied registration, though: they’re not residents of the city.

Additionally, those who do find jobs, including the original residents, are demanding higher wages, which hurts production, which hurts job availability.  On top of that, the lack of jobs for that massive influx of migrants leaves people without money to buy goods and services other than those basic city-provided services (which the migrants can’t get anyway).  This also hurts production, and job availability.  And on top of this, those migrants generally are their families’ bread-winners and were intending to send money back home to family members who didn’t make the move.  This lack deepens the impoverishment of the hinterlands.

All of these changes are easily handled by a flexible, free market, but a centrally managed one, even managed by carefully selected government leaders, simply cannot keep up with the dynamicisms of the country’s (any country’s) real-world economic evolutions.  It’s an edifice poised for a major retrenchment, drawdown of those reserves, or hard collapse.  Or all three.