Birthright Citizenship – Just and Justified

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

So says section 1 of the 14th Amendment to the U.S. Constitution. With the impeccable timing we’re accustomed to, Donald Trump says he will sign an executive order to nullify this constitutional provision by denying citizenship to persons born in the United States and subject to the jurisdiction thereof if their parents were in the country without the permission of the government. (My remark about his timing refers to the fact that his latest move in his campaign to demonize the Other in order to Make America Great comes on the heels of the homicidal evil at the Tree of Life synagogue in Pittsburgh last Saturday. The dominant tone of the Trump presidency is hatred.)

Obviously, two issues are involved in birthright citizenship. The first is whether Trump can abolish it by executive order rather than having to ask the Congress to pass a bill for him to sign. More fundamental, however, is whether Congress can do this by anything less than a constitutional amendment that would nullify section 1 of the post-Civil War 14th Amendment.

At this point no one should be surprised that Trump — who along with other Republicans routinely scorned Barack Obama’s use of the executive order — thinks he can do this. He sees himself as the Sun King who may do whatever happens to catch his fancy. In Trump World, his impulses are the supreme law of the land. Whatever Trump wants Trumps gets — at least his very, very large brain tells him so.

But let’s be serious and turn to the more interesting question. Does the Constitution require that “all persons born in the United States, and subject to the jurisdiction thereof” be recognized as citizens? The burden of proof would seem to be on those who say no.

What is their case? It seems to come down to one thing: the drafter of the section, Sen. Jacob Howard, said, “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

Okay, he said it. So what? It changes nothing. In fact, it affirms what we pro-birthright citizenship folks say. No one thinks that the U.S.-born children of foreign ambassadors can claim citizenship; they are not under the jurisdiction of the U.S. government. Howard used the word “alien” merely as a synonym for U.S.-born “foreigners … who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.” Howard said nothing about immigrants, either legal or illegal. (There were no illegal immigrants in those days.) The Howard quote is a nothingburger.

But even if he had listed illegal immigrants, he did not put such language in the section, and so it was not approved by members of Congress or ratified by the state legislators. Whether one uses the standard of original intent or contemporary common understanding, why should Howard’s words have any force whatever? It’s not as though “all persons” was an arcane technical phrase or term of art.

Lysander Spooner told us why Howard’s statements are of no import in his extraordinary book The Unconstitutionality of Slavery (1860). I commend this book to the constitutionalists of all parties. Spooner, like me, was no fan of the Constitution, but he showed in his book that those who do revere it ought to see that they may have embraced a position — namely, that slavery was constitutional — that by logic they ought to have rejected if they were to be true to their devotion in the Constitution. Spooner had slavery in mind. I contend that section 1 of the 14th Amendment is subject to the same sort of arguments Spooner made about the allegedly pro-slavery provisions.

Spooner exhaustively demonstrated, among other things, that the infamous “three-fifths” clause, which said that only “three fifths of all other persons” were to be counted for purposes of taxation and congressional representation, did not indicate a constitutional sanction of slavery. (Other provisions were also used to make the specious argument, but Spooner dispatched them as well.)

Working from a background of natural law, natural justice, and self-ownership, Spooner noted that the Constitution purported to, quoting the preamble, embody the ratifiers’ intention 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.” (He would not have had to believe the preamble to hold the constitutionalists to these stated objectives.) Thus, Spooner argued, the Constitution’s several provisions must be read in the light of those objectives unless the language “be irresistibly explicit.”

Note that Spooner was not saying the Constitution could not possibly contain anti-freedom provisions. It could and it does. Rather, he was saying that where the language permits a pro-freedom interpretation, that is how it must be read because of the Constitution’s own purported objectives. Anti-freedom provisions must be irresistibly explicit. Ties go to the libertarian because “we cannot unnecessarily place upon the constitution a meaning directly destructive of the government it was [purportedly] designed to establish.” (For more on Spooner and the Constitution, see Roderick T. Long’s “Spooner Defended” and “Inside and Outside of Spooner’s Natural Law Jurisprudence.”)

Now let’s turn to Spooner’s specific argument about the three-fifth clause because it is almost exactly on point in the matter of birthright citizenship. The three-fifths clause contrasts “free persons” and “all other persons.” The pro-slave constitutionalists said this proved that the latter phrase had to be read to mean slaves, thus sanctioning slavery. But Spooner makes mincemeat of this argument.

“The English law had for centuries used the word ‘free’ as describing persons possessing citizenship, or some other franchise or peculiar privilege—as distinguished from aliens, and persons not possessed of such franchise or privilege,” Spooner wrote. “This law, and this use of the word ‘free,’ as has already been shown, (Ch. 6,) had been adopted in this country from its first settlement.” In other words, that was the common meaning of the term, and nothing in the Constitution set out a different one. Thus as a correlative to “free,” “all other persons” should have been taken to mean resident noncitizens, so-called aliens rather than slaves. Again, the Constitution’s stated purposes forbade anyone from imposing a different, anti-freedom, anti-natural-justice meaning no matter what the drafter had in mind. They could have written “slaves,” but they didn’t. (Spooner earlier in his book showed that slavery violated the colonial charters, state constitutions, and Articles of Confederation regardless of law had been passed.)

Spooner also had much to say about the pro-slave argument that went outside the Constitution to define “free persons” as correlative to “slaves”:

If we are obliged (as the slave argument claims we are) to go out of the constitution of the United States to find the class whom it describes as “all other persons” than “the free,” we shall, for aught I see, be equally obliged to go out of it to find those whom it describes as the “free”—for “the free,” and “all other persons” than “the free,” must be presumed to be found described somewhere in the same instrument. If, then, we are obliged to go out of the constitution to find the persons described in it as “the free” and “all other persons,” we are obliged to go out of it to ascertain who are the persons on whom it declares that the representation of the government shall be based, and on whom, of course, the government is founded. And thus we should have the absurdity of a constitution that purports to authorize a government, yet leaves us to go in search of the people who are to be represented in it. Besides, if we are obliged to go out of the constitution, to find the persons on whom the government rests, and those persons are arbitrarily prescribed by some other instrument, independent of the constitution, this contradiction would follow, viz., that the United States government would be a subordinate government—a mere appendage to something else—a tail to some other kite—or rather a tail to a large number of kites at once—instead of being, as it declares itself to be, the supreme government—its constitution and laws being the supreme law of the land. [Emphasis added.]

Spooner adds, “It certainly cannot be admitted that we must go out of the United States constitution to find the classes whom it describes as ‘the free,’ and ‘all other persons’ than ‘the free,’ until it be shown that the constitution has told us where to go to find them.” The Constitution is deafeningly silent on the matter.

I submit that the same applies to the argument of those who say the 14th Amendment does not require birthright citizenship. As Spooner wrote, the argument “sets out with nothing but assumptions, that are gratuitous, absurd, improbable, irrelevant, contrary to all previous usage, contrary to natural right, and therefore inadmissible…. Yet these perversions of the constitution are made…, not merely in defiance of those legal rules of interpretation, which apply to all instruments of the kind, but also in defiance of the express language of the preamble, which declares that the object of the instrument is to ‘establish justice’ and ‘secure liberty’—which declaration alone would furnish an imperative rule of interpretation, independently of all other rules.”

A plain reading of the amendment, reinforced by Spooner and what Edward S. Corwin called the “‘higher law’ background of American constitutional law,” shows that birthright citizenship is not only just but justified.

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Let’s Stop the Merchants of Death

Imagine that back in the day, the U.S. government had contracted postal services out to a private company rather than setting up its own “public” agency. Today the U.S. Postal Corp. would have officers, directors, and employees who were not on the government payroll. They would be paid from the money raised by selling its services to the public and the government.

Would things be essentially different from how they are today? I think not. Regardless of appearances, the U.S. Postal Corp. would be a de facto government agency. The government could use various methods to guarantee its existence, from an outright prohibition on competition to lesser measures like taxpayer subsidies, direct low-rate loans, loan guarantees, and explicit or implicit bailout promises such as banks receive. Even if none of those measures prevented competition from arising, the fact would remain that what looked like a private entity was actually a government bureau. It would be private in name only. We could say that a nominally private “firm” would not really be private if the government were indispensable to its existence, but maybe that’s too high a bar. (We can argue about how and where to draw the line. Murray Rothbard had some controversial thoughts about this in his 1969 article “Confiscation and the Homestead Principle.”)

We can certainly distinguish between an entity like the postal service, which does things that, per se, people have the right to do — deliver mail — and an entity like the Internal Revenue Service [sic], which does things no one has the right to do — extort money. (The government might have contracted out for tax collection.) But for our purposes here, that distinction is unimportant.

Advocates of freed markets would hardly want to express sympathy for a nominally private entity in the name of private enterprise or defend its questionable conduct on the grounds that if it’s conduct were not serving consumers, it wouldn’t survive market forces. Rather, advocates of freed markets would talk about this entity the way they talk about the U.S. Postal Service, the IRS, and other government agencies — with contempt. (On a related point, see my article “Can Mutually Beneficial Exchanges Be Exploitative?”)

Another method by which a nominally private, but de facto government operation could be sustained is by government purchases of its products and services. This would be especially clear where the government was a monopsonist, or single-buyer of its products and services, but the same effect could result were the government a virtual monopsonist.

Now let’s talk about America’s arms makers, the military contractors, which are routinely mislabeled “defense” contractors. (The military-industrial complex of course has little if anything to do with defense. It’s about empire,  aggression, and illicit profits.)

A nominally private corporation wouldn’t need direct startup cash, loans, or loan guarantees from the government to qualify as a de facto state agency. All it would need is the promise of government contracts. In fact, the very prospect of government contracts could entirely account for its founding in the first place. If the founders guessed wrong and the contracts did not materialize, the company would have to liquidate or write a more viable business plan.

It’s safe to say that America’s major military contractors would not exist — or exist in anything like the size and form we know them — were it not for the U.S. government and its mammoth military establishment. When it comes to demanding weapons of mass destruction — and I don’t mean only weapons that satisfy some technical definition; so-called conventional bombs can wreak mass destruction — the Pentagon has no rival. Its budget is larger than the next seven or so countries combined. And the U.S. government is the world’s largest arms exporter. Other patrons of those contractors, Israel, for instance, each year receive huge grants in  U.S. taxpayer money to buy their products. It is true that some patrons don’t need U.S. government assistance — Saudi Arabia comes to mind — but that should not lead us to believe that U.S. arms makers would be just fine if those were their only customers. It is surely the case that the U.S. government’s patronage, not to mention its involvement in basic R&D, has enabled those companies to achieve the economies of scale necessary to filling smaller orders profitably. Also, if a company were to get stiffed by a foreign government, I imagine that such a government would have to answer to the United States.

The upshot is that Lockheed Martin, Raytheon, Northrup Grumman, and others should not be regarded as private enterprises deserving of respect from advocates of freed markets. And so it follows that those advocates should not bridle at, say, congressional restrictions on to whom the contractors may sell. U.S. law pays lip service to the principle that American-made weapons should not be transferred to governments that are likely to use them aggressively, whether internally or externally. That principle, of course, is more honored in the breach than in the observance, and it would be nice if such hypocrisy would at last come to an end.

There would be no better time and place to start than now and Saudi Arabia, a rotten-to-the-core regime that oppresses the people who live directly under it as well as the people of Yemen, among others. Israel is another case. It receives more than $3 billion a year from the U.S. taxpayers for weapons that it routinely uses to kill and otherwise oppress innocent Palestinians. Aiding such regimes is immoral.

The murder of Jamal Khashoggi has fueled new congressional opposition to arms sales to Saudi Arabia. But after tens of thousands of deaths in Yemen (with many more in the offing) at the U.S.-aided hands of Saudi Arabia, it should not have taken the death of a Washington Post columnist to focus attention on that savage regime. That’s politics for you.

We cannot be optimistic that weapons sales to Crown Prince Mohammed bin Salman will be blocked or that such a ban would launch a more general campaign against the arms industry. We certainly shouldn’t expect any senator or representative to oppose military aid to Israel; that, alas, would be political suicide. But were the effort to block the Saudi arms deal to succeed, it would be encouraging and might even stimulate innovative thinking about how to stop the U.S. government and its military contractors from behaving like merchants of death.

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The Insidious Wiles of Foreign Influence: Trump, Bin Salman, and Netanyahu

Even if the Saudi monarchy or Crown Prince Mohammed bin Salman in particular did not murder journalist Jamal Khashoggi, that regime is an especially evil one in both its domestic and international conduct. To see that, one need only consider the horrendous Saudi war against the people of Yemen, with the backing of the U.S. government starting with Barack Obama. That war, with its merciless killing of defenseless thousands and its inevitable benefits to al-Qaeda, is just the latest in a series Saudi atrocities.

Predictably, Donald Trump wants it all ways. He’s made the obligatory mild critical remarks at the same time as he floated his “theory” that Khashoggi’s death may have been carried out by rogue agents. But since that explanation, along with the “interrogation gone wrong” alternative, is hardly likely, Trump seems to be banking on his warm relationship with and confidence in the credibility of King Salman and the crown prince to reassure us. Actually, Trump has two things on his mind: arms sales and Iran.

He believes, first, that he can make the U.S. economy vibrant by being the country’s arms-trafficker-in-chief. He can throw multibillion-dollar figures around like confetti all day, but that he can’t erase the fact that a thriving arms industry is not the key to real and general prosperity. Quite the contrary, its products either destroy lives and wealth or rust. Real prosperity is not captured by aggregate numbers, whether they refer to military contractors’ profits, stock prices, or GDP. Real prosperity means regular people having increasingly easier access to the goods and services they believe will enhance their lives. As long as the laws of physics operate, scarcity — though, thanks to technology and innovation, not its severity — will be with us. So if people are devoting resources to making warplanes, killer drones, and bombs, they aren’t making things that you and I actually use. Arms-industry fatcats and their workers will make money, but they could be making money in ways that actually serve consumers instead of murderous and oppressive dictators, monarchs, presidents, and prime ministers.

Trump is wrong: this is not about the economy. His position is a dangerous mix of economic illiteracy fueled by nationalism and a hegemonic geopolitical vision according to which Iran is throttled and Israel is enabled, with Saudi Arabia as a beneficiary. Those objectives serve neither most Americans nor the rest of the world’s people.

The old admonition about permanent and entangling alliances still holds. As often as it’s been quoted, it’s worth quoting again — Washington’s Farewell Address, that is. Despite all its qualifications, Washington’s essential message is clear:

Against the insidious wiles of foreign influence (I conjure you to believe me, fellow-citizens) the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government. But that jealousy to be useful must be impartial; else it becomes the instrument of the very influence to be avoided, instead of a defense against it. Excessive partiality for one foreign nation and excessive dislike of another cause those whom they actuate to see danger only on one side, and serve to veil and even second the arts of influence on the other. Real patriots who may resist the intrigues of the favorite are liable to become suspected and odious, while its tools and dupes usurp the applause and confidence of the people, to surrender their interests.

The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible. [Emphasis added.]

While steering clear of alliances is good advice, we may still question why the American regime has, beginning long before Trump, chosen one government for an ally over another. Why, for example, is the U.S. government close to Saudi Arabia rather than Iran? It certainly is not the case that the former is more liberal than the latter. That would be a laughable proposition. To pick a random test, how close are centers of Riyadh and Tehran to the nearest synagogues? I wouldn’t want to live in either place, but if those were my only choices, please give me Tehran. As for Iran’s allegedly creeping hegemony in the Middle East, check your premises. George W. Bush made Iran influential in Iraq by invading and knocking off Iran’s nemesis Saddam Hussein. (Iraq invaded and waged a long war, using chemical weapons, against Iran in the 1980s — with U.S. help — not vice versa.) Then Bush and Obama brought Iran closer to Syria by their continued war in Iraq, giving birth of the Islamic State, and Obama’s and Hillary Clinton’s declaring open season on Bashar al-Assad after the putative civil war broke out. Iran, no matter what Trump tells you, does not aspire and never has aspired to be a nuclear power. (See Gareth Porter’s Manufactured Crisis: The Untold Story of the Iran Nuclear Scare.) Nor does it aspire to attack the United States or Israel, though it does oppose Israeli oppression of the Palestinians. Iran is not on the march.

On the other hand, Saudi Arabia has been an indispensable party to a great deal of mischief, including mischief involving al-Qaeda — you know, the organization that brought down the Twin Towers — throughout the greater region and the Taliban in Afghanistan. The U.S. friendship with Saudi Arabia has benefitted al-Qaeda and even worse offshoots in Syria.

Thus the demonization of Iran and the glorification of Saudi Arabia, whence Muslim extremism was born, has no rational basis.

And Israel? The self-declared State of the Jewish People (a label rejected by countless Jews worldwide) has forged an alliance with Saudi Arabia for the dual purpose of intimidating Iran and cowing the long-suffering Palestinians. America’s entangling alliance with Israel has amounted to a gross offense against humanity, blackening whatever reputation the United States once might have had as a beacon of freedom, justice, and goodwill. Furthermore, the partnership has endangered Americans by provoking a desire for revenge in those who identify with the Muslim victims of U.S.-Israeli policy.

One final matter: the question of whether the U.S. government should block arms sales to the Saudis. We can say for sure that the government should in no way facilitate the sales. That’s an easy one. But maybe the arms makers need neither government material help nor Trump’s salesmanship to close deals with the House of Saud. In refusing to come down too hard on Saudi Arabia over the Khashoggi disappearance, Trump said, “I will tell you up front, right now they’re spending $110 billion purchasing military equipment. And if we don’t sell to them, they’ll say thank you very much, we’ll buy it from Russia or China.” (On the actual size of the deal, see this.)

Is Trump right that Russian or China might have gotten the deal? I don’t know, but if he is right, it raises interesting questions: did Trump make any side promises to close the deal; if so, what were they and would the deal have gone through without them? Most likely, any promises have involved things Trump and perhaps Israel would or would not do with respect to Iran and the Palestinians. We deserve answers.

Assuming American arms makers would sell arms to Saudi Arabia and other regimes without government help, we may complicate the matter further by pointing out that those firms are not actually private enterprises, no matter their appearance. Rather, they are creatures of the American state and deserve no respect from supporters of free enterprise. It’s unlikely they would exist in anything like their current form, if at all, were it not for the U.S. government, its captive taxpayers, and its global imperial apparatus, whose personnel rotate regularly between “national security” jobs and lucrative seats on defense contractors’ boards of directors. The upshot is that these nominally private firms are really state-held, that is, illegitimately held, property and could legitimately be liberated and turned to the production of goods for the consumers. In 1969 Murray Rothbard and Karl Hess wrote provocatively about when an apparently private entity is actually not private and what we might do about it. Some of their solutions are debatable, but Rothbard was surely correct when he wrote: “What we libertarians object to, then, is not government per se but crime, what we object to is unjust or criminal property titles; what we are for is not ‘private’ property per se but just, innocent, non-criminal private property. It is justice vs. injustice, innocence vs. criminality that must be our major libertarian focus.”

The Arms Export Control Act of 1976 (AECA) requires a president to ensure that arms sold to other governments are used for defensive purposes only. Obviously, this act is flouted every day. Imagine if it were applied to Saudi Arabia and Israel! It’s not that I’m a fan of the AECA: a president who wants to see arms sold to a repressive regime will find ways to give that regime a clean bill of health; the AECA would have no force in such a case. On the other hand, it has been used to harass exporters of encryption software to people who would use it to protect themselves from their oppressors’ prying eyes.

So what can we do? Our options are limited at this point. But one ought to do whatever one can to sow public hostility toward these “merchants of death”: public shaming, divestment campaigns, and the like. It’s the least we can do. At least let us make a loud noise!

If someone is going to sell arms to the Saudis and other regimes, I’d rather it be someone other than us Americans because I don’t want to be even remotely associated with the inevitable crimes against humanity that will follow.

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Trump’s Middle East Delusions Persist

In an interview with the Times of Israel, Greenblatt said the plan “will include a resolution to all of the core issues, including the refugee issue, and will also focus on Israel’s security concerns.” It will, he continued as if the reporter didn’t hear him the first time, “be heavily focused on Israeli security needs,” adding, “But we also want to be fair to the Palestinians. We have tried hard to find a good balance. Each side will find things in this plan that they don’t like. There are no perfect solutions.”

Greenblatt went on:

Previous peace proposals were brief and vague, and no one really understood what exactly was meant by some of the terms used. We will present something that will give both the Israeli and the Palestinian people a concrete idea of what a peace deal could look like.

It’ll be very specific so that they [the Palestinians, presumably –SR] can tell their leaders what they think about it. In the end, we want people to think about whether our plan can make their lives better and is worth the compromises.

Well, well, well. It’s obvious that the many reasonable criticisms leveled at earlier disclosures about Trump’s touted “deal of the century” have had no effect on Team Trump. Let’s have a closer look at what Greenblatt says.

“… will include a resolution to all of the core issues, including the refugee issue….” Bear in mind that Team Trump uses the word resolution differently from how the rest of us would use it in such a context. Team Trump means it will dictate an outcome, using all possible leverage to get the parties to take it and shut up. However, I don’t mean to imply that Team Trump is treating the Israelis and Palestinians as equals — far from it, but more on that below.

How do I know what Team Trump means? I’ve been paying attention, that’s how. Trump has already claimed to have resolved the refugee and Jerusalem issues simply through unilateral moves, moves that pleased the Israelis and pissed off the Palestinians, who are expected to relinquish any right of return for the dispossessed and to give up any hope for an East Jerusalem capital of any future state. (For details, see my “Trump, Spinoza, and the Palestinian Refugees.”) And Team Trump has cut all aid to the Palestinians, refugees or not, intending to redirect the money elsewhere (but not to the taxpayers) — unless they play ball.

“… will also focus on Israel’s security concerns… [and] be heavily focused on Israeli security needs….” Ah, there you go. This is the only thing that Greenblatt says will be focused on. Everything else seems like an afterthought. Strange isn’t it? Who’s been in graver danger in Palestine since the Zionist project got underway a century and a quarter ago, Jews or Palestinians? The question answers itself. The suffering of the Jews/Israelis in Palestine has been minuscule compared to that of the Palestinians, who, truth be told, have not only been the vast majority of Palestine’s inhabitants for more than a thousand years but are most likely the descendants not only of the original Israelites but of the pre-Palestine Canaanites. (See Shlomo Sand’s The Invention of the Jewish People and The Invention of the Land of Israel.) A proposal that focuses on Israel’s security means that any resulting Palestinian state will be a sham since it will be denied the means of protecting itself against its U.S.-armed neighboring hegemon, which has nuclear weapons in its vast arsenal. Israel has always insisted that any Palestinian state be demilitarized and have its borders controlled by you know who. You see, Israel and its U.S. enabler begin with the presumption that it is the Palestinians, the ones who were invaded and occupied by the Zionist movement, who must prove that they deserve to be free and independent.

This unalloyed tilt — a mild word for what’s going on — is not mitigated by Greenblatt’s follow-up: “We have tried hard to find a good balance.” What exactly is being allegedly balanced? The claims of the beneficiaries of grand theft land and those of the victims thereof. How can those claims really be balanced?

“Each side will find things in this plan that they don’t like.” I can imagine. The Israelis won’t like that they won’t get every square inch of the Palestinians’ land and therefore a 100 percent Palestinian-free Israel (in the short run, at least), and the Palestinians won’t like that they will be pressured to accept far less than even the 22 percent of the land that their so-called leaders long ago agreed to settle for.

“There are no perfect solutions.” This is true. Past injustices can never be fully rectified. But “solutions” can be closer to or further from perfection, and we know which Team Trump’s solution will be.

“Previous peace proposals were brief and vague…. [Ours will] be very specific.” Indeed they will be. Team Trump approaches the “conflict” as though the Americans were parents settling an argument between two immature children fighting over Halloween candy of indeterminate ownership — except that in this case, only one side — the Palestinian — is presumed to be the stubborn, immature child who is unwilling to compromise.

“In the end, we want people to think about whether our plan can make their lives better and is worth the compromises.” This is no doubt a veiled reference to Team Trump’s objective to get the Palestinians’ minds off the injustices they’ve suffered — mass expulsion from their homes in 1947-48 (the Nakba), fifth-class citizenship for those who avoided expulsion, “apartheid” in the West Bank, detention and deprivation in the Gaza Ghetto — by offering them economic development. This is part of Trump’s grand strategy to isolate the Palestinians while aligning with the brutal states of Saudi Arabia, Egypt, and Israel against Iran. (For details on this grand strategy, see Ted Snider’s “Outside In: The Trump Administration’s Plan to Remake the Middle East.”) (I’ve put apartheid in quotes because, per Gilad Atzmon, while the South African whites wanted to exploit the blacks, the Israelis want to get the Palestinians out.)

Clearly, Team Trump has abandoned even the pretense that the U.S. is merely an “honest broker” in the conflict. It sees itself instead as the unabashed pro-Israel dictator of terms. As I’ve said before, “The ‘peace process’ is and long has been a sham, and the United States has never been an ‘honest broker.’ An authentic and promising peace-through-justice process would begin, quite literally, with an Israeli apology to all the victims who once lived in Palestine. Then all concerned may go about the business of establishing the terms for coexistence.”

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Anarchism and Kavanaugh

Regarding Brett Kavanaugh, I’ve been wondering how I can blame the state for what we’ve endured these past weeks. I can safely say that without the state, we would have been spared the Kavanaugh episode.

Natural-law, pro-market anarchists are not utopians. To paraphrase the old hit: we beg your pardon; we never promised you a rose garden. Anarchism refers to a set of means — persuasion, consent, and voluntary cooperation — and not an end. It permits the emergence of solutions through a range of cooperative activities as opposed to the state’s imposition of one-size-fits-all alleged solutions from on high — from, say, Capitol Hill, our Mount Olympus.

But some things are less likely to occur in a stateless society than in a state-saturated one. And the Kavanaugh problem is one of those things.

Let’s start with the basics. Kavanaugh has been nominated for a seat on the U.S. Supreme Court. Supreme Court justices have lifetime jobs. While an impeachment process exists, it is close to impossible to remove a high official. Second, the Court’s rulings are the “supreme law of the land.” It takes just five of nine justices to set binding precedents, which lower federal and state courts obviously must apply. Third, parties who elect to take cases to the Court are stuck with whoever happens to be on the Court at the time. If a party has doubts about the character of one or more of the justices, tough luck. (This doesn’t mean the government’s courts are unavoidable for some people, as the popularity of private arbitration demonstrates.)

In light of these facts, I can’t think how a situation like the one created by Kavanaugh’s nomination could arise in a stateless society. No supreme court would exist because no monopoly legal system would exist. (See my “Of Bumblebees and Competitive Courts.”) Judges would not have guaranteed lifetime jobs. Nor would their rulings serve as binding (as opposed to persuasive) precedents. (On the emergence and downside of stare decisis, the doctrine of binding precedent, in the common law, see Todd Zywicki’s “The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis.”)  Parties to disputes would, through mutually agreed-to procedures, choose anyone they wanted to hear their cases. This could happen ad hoc in one-off disputes, but the more common practice would likely be prospective arrangements among associations of various kinds, insurance, defense, and so on.

As I say, it’s hard to imagine how the Kavanaugh situation could arise under anarchism. Parties looking for members of an arbitration panel usually could strike from consideration anyone about whom they had any doubts whatever. Other parties who had no concern about someone under a cloud like Kavanaugh’s could choose that person, subject to the conditions agreed to with fellow disputants. But, crucially, the choice to include or exclude such a person would have implications for only the parties to the specific dispute.

Obviously, prospective arbiters’ reputations, especially for fairness and honesty but not only those traits, would matter immensely. In effect, prospective arbiters would face a confirmation review — by disputants or their representatives — every day. A Supreme Court nominee does so just once. If the Senate errs, too bad. As mentioned, under the Constitution, justices “shall hold their offices during good behavior.” But in 229 years, Congress has never removed a justice. Only one, Samuel Chase in 1804, was impeached by the House, but he was acquitted by the Senate. in the 20th century, William O. Douglas and Abe Fortas escaped House impeachment votes, though hearings were either held (twice in Douglas’s case) or almost held (Fortas). Under anarchism, no impeachment process would be necessary because no one would be appointed to any judicial role except by parties to their own particular cases or by the associations or communities with which they chose to affiliate.

So a big advantage to anarchism is that it would blessedly spare us from the sort of repulsive spectacle we’ve lived through these last weeks — repulsive in an assortment of ways. I’m thinking now of that band of self-righteous frauds called senators and that amoral boor with the “really, really large brain” who imagine themselves to be guardians of the people’s welfare when in truth they are impediments to it. Imagine a society in which, for most of us, nothing much hinged on whether Brett Kavanaugh or Christine Blasey Ford is telling the truth.

Anarchism’s looking pretty good now, isn’t it? I know that some people are frightened by that word, but they ought not to be. Rather, they ought to think of anarchism as Roderick Long presents it in his critical look at the recent exchange over anarchism that took place at Reason. Long tells us that anarchism amounts to little more than an expansion to all areas of life of the manner in which we typically deal with one another today, thereby shrinking the sphere of coercive relationships until it disappears. He draws on earlier thinkers to make the point:

Recall Gustav Landauer’s famous formulation: “The state is a condition, a certain relationship between human beings, a mode of behavior; we destroy it by contracting other relationships, by behaving differently toward one another.” And another anarchist, Paul Goodman, has noted: “A free society cannot be the substitution of a ‘new order’ for the old order; it is the extension of spheres of free action until they make up most of social life.”

So, just imagine a world where you could ignore, among many others I could name, Lindsey Graham, Jeff Flake, Dianne Feinstein, and Donald Trump. To quote Louis Armstrong, “What a wonderful world it would be.”

(For discussions of law under anarchism, see Roderick Long’s essays “Why Objective Law Requires Anarchy,” “Libertarian Anarchism: Responses to Ten Objections,” and “Market Anarchism as Constitutionalism”; John Hasnas’s “The Myth of the Rule of Law,” “The Depoliticization of Law,” “Toward a Theory of Empirical Natural Rights,” and “The Obviousness of Anarchism”; and David D. Friedman’s “A Positive Account of Rights.” Also see the chapter “The Constitution of Anarchy” in my America’s Counter-Revolution: The Constitution Revisited. and Gary Chartier’s Anarchy and Legal Order.)

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Spinoza – A Man for Our Troubled Times

In these interesting times, we all need someone to admire. I have found such a one in Benedict de Spinoza (1632-1677), the 17th-century rationalist liberal philosopher who advocated freedom of thought and expression, toleration, and simple kindness.

Spinoza lived in what at the time was the most liberal place on earth, the Dutch Republic, his Jewish Portuguese family having moved there after Portugal expelled its Jewish population in 1497. He seems to have been a free thinker at an early age, and it apparently got him into trouble with the Jewish community of Amsterdam. In 1656, at the tender age 23, his synagogue banned him for life from the community for “abominable heresies … and … monstrous deeds.” The excommunication decree — the charem — left no doubt about how the Jews of Amsterdam were to regard the young man:

By decree of the angels and by the command of the holy men, we excommunicate, expel, curse and damn Baruch de Espinoza, with the consent of God, Blessed be He, and with the consent of the entire holy congregation, and in front of these holy scrolls with the 613 precepts which are written therein; cursing him with the excommunication with which Joshua banned Jericho and with the curse which Elisha cursed the boys and with all the castigations which are written in the Book of the Law. Cursed be he by day and cursed be he by night; cursed be he when he lies down and cursed be he when he rises up. Cursed be he when he goes out and cursed be he when he comes in. The Lord will not spare him, but then the anger of the Lord and his jealousy shall smoke against that man, and all the curses that are written in this book shall lie upon him, and the Lord shall blot out his name from under heaven. And the Lord shall separate him unto evil out of all the tribes of Israel, according to all the curses of the covenant that are written in this book of the law. But you that cleave unto the Lord your God are alive every one of you this day.

It ordered “that no one should communicate with him neither in writing nor accord him any favor nor stay with him under the same roof nor within four cubits [six feet] in his vicinity; nor shall he read any treatise composed or written by him.”

Spinoza was not upset with this development; he apparently thought his excommunication merely saved him the trouble of leaving the community on his own initiative. So he changed his name from the Hebrew word for blessed, Baruch,  to the Latin equivalent, Benedictus. However, he lived in a time and place in which being unaffiliated with any community had its disadvantages.

What had he done to deserve this treatment? No one is really sure because he had not yet written a word, and he would not publish a book for several years. But he must have been talking to friends about the philosophy he was formulating. If so, we should have no problem understanding why Spinoza would have outraged the Jewish authorities, who feared anything that might jeopardize the community’s relatively free status in the Protestant republic. His writings, published between those of Thomas Hobbes and John Locke, would reject the immortality of the soul and the divine origin of the Bible, while arguing that God was nothing more than nature, or existence, itself, without a consciousness or will with which to command, reward, punish, or listen to human beings. His famous phrase was Deus sive Natura, God or/as Nature. For Spinoza, nothing could be beyond nature and logic; thus, no supernatural being or realm existed.

When I (along with others) nominate Spinoza for hero status, I am thinking specifically of his political philosophy, which he expressed in his anonymously published A Theological-Political Treatise (1670), which was condemned as “a book forged in hell.” The authorship of the book soon became an open secret, and all but his book on Descartes were banned in the Dutch Republic and elsewhere. Spinoza also lived in interesting times, which were no doubt on his mind as he formulated his outlook: the Thirty Years’ War ended in 1648 and the English Civil War raged from 1642 to 1651.

As the libertarian philosopher Douglas Den Uyl notes in God, Man, and Well-Being: Spinoza’s Modern Humanism, Spinoza was very much in the tradition of Greek philosophy, but he went the Greek thinkers one better by rejecting the state as a shaper of souls and promoter of virtue. What Spinoza called “blessedness” cannot be achieved through external forces but only through an internal process that individuals undertake. (Den Uyl’s earlier book on Spinoza, a doctoral dissertation, is Power, State, and Freedom: An Interpretation of Spinoza’s Political Philosophy.)

For Spinoza (alas, no anarchist, but see Daniel Garber’s lecture at 44:00), the socially contracted democratic-republican state had one task: to produce security — full stop. Security enables individuals to 1) live in safety, 2) pursue understanding, which is the key to activeness, power in the sense of efficacy, virtue, and excellence, and 3) enjoy the benefits of cooperation with others through the division of labor. But, properly, number two is neither the state’s direct nor indirect goal. Against the claim that Spinoza looked to the state to promote virtue if only indirectly, Den Uyl refers to Spinoza’s unfinished Political Treatise, where he writes, “The best way to organize a state is easily discovered by considering the purpose of civil order, which is nothing other than peace and security of life.” Virtue is not even an indirect goal? No, because, Den Uyl points out, the failure of people to become more virtuous would not indicate a deficiency in the state. Virtue is a private internal matter.

As an aside, I note that for Spinoza, living actively according to reason (understanding), rather than passively according to appetites and (other) “external” forces, enables one to accomplish more than one’s own flourishing directly; it also encourages others to live according to reason, which in turn further promotes one’s own flourishing.

Another Spinoza scholar who finds this political philosophy especially worth studying today is Steven Nadler. In his 2016 Aeon article “Why Spinoza Still Matters” (from which many of the Spinoza quotes below are taken), Nadler writes:

At a time when Americans seem willing to bargain away their freedoms for security, when politicians talk of banning people of a certain faith from our shores, and when religious zealotry exercises greater influence on matters of law and public policy, Spinoza’s philosophy – especially his defence of democracy, liberty, secularity and toleration – has never been more timely. In his distress over the deteriorating political situation in the Dutch Republic, and despite the personal danger he faced, Spinoza did not hesitate to boldly defend the radical Enlightenment values that he, along with many of his compatriots, held dear. In Spinoza we can find inspiration for resistance to oppressive authority and a role model for intellectual opposition to those who, through the encouragement of irrational beliefs and the maintenance of ignorance, try to get citizens to act contrary to their own best interests….

The political ideal that Spinoza promotes in the Theological-Political Treatise is a secular, democratic commonwealth, one that is free from meddling by ecclesiastics. Spinoza is one of history’s most eloquent advocates for freedom and toleration.

In his treatise, Spinoza was quite clear: “The state can pursue no safer course than to regard piety and religion as consisting solely in the exercise of charity and just dealing, and that the right of the sovereign, both in religious and secular spheres, should be restricted to men’s actions, with everyone being allowed to think what he will and to say what he thinks.”

And: “Freedom to philosophise [on all things –SR] may not only be allowed without danger to piety and the stability of the republic, but that it cannot be refused without destroying the peace of the republic and piety itself.”

Further: “A government that attempts to control men’s minds is regarded as tyrannical, and a sovereign is thought to wrong his subjects and infringe their right when he seeks to prescribe for every man what he should accept as true and reject as false, and what are the beliefs that will inspire him with devotion to God. All these are matters belonging to individual right, which no man can surrender even if he should so wish.”

Nadler elaborates: “No matter what laws are enacted against speech and other means of expression, citizens will continue to say what they believe, only now they will do so in secret. Any attempt to suppress freedom of expression will, once again, only weaken the bonds of loyalty that unite subjects to sovereign. In Spinoza’s view, intolerant laws lead ultimately to anger, revenge and sedition.”

For Spinoza, it was not enough to have only the freedom to think any thoughts. “The more difficult case,” Nadler writes, “concerns the liberty of citizens to express those beliefs, either in speech or in writing. And here Spinoza goes further than anyone else in the 17th century:

‘Utter failure will attend any attempt in a commonwealth to force men to speak only as prescribed by the sovereign despite their different and opposing opinions.… The most tyrannical government will be one where the individual is denied the freedom to express and to communicate to others what he thinks, and a moderate government is one where this freedom is granted to every man.’”

Alas, Spinoza was no modern libertarian, although (as Nadler emphasizes) he was a far better liberal than John Locke, whose Letter Concerning Toleration did not extend the courtesy to the beliefs, not to mention the public displays, of atheists and Catholics.

Nevertheless, Spinoza thought one can be free “in any kind of state.” How so? The free person is guided by reason, he wrote, and reason favors peace; therefore, the reasonable person obeys the state’s laws because “peace … cannot be attained unless the general laws of the state be respected. Therefore the more he is free, the more constantly will he respect the laws of his country, and obey the commands of the sovereign power to which he is subject.” Now Spinoza might have been thinking of a commonwealth in which the laws are perfectly appropriate to rational persons — except that he says we can be free in any kind of state. Does it follow that ignoring unjust statutes really risks general civil strife? I think Spinoza would reply, in a Hobbesian way, that “justice is dependent on the laws of the authorities.” Yes, civil strife is not conducive to the good life, but neither are unjust statutes.

Spinoza drew a more-or-less bright line between the expression of thoughts and action. As Nadler points out (in this video), Spinoza thought the secular authority had a right to dictate how religion was publicly practiced in order to safeguard the peace. Practitioners of alternative religions should be fully free to think and say what they please, but their public rites were to be permitted only within prescribed limits. As one can see, Spinoza is in some respects a Hobbesian though he was more liberal because Hobbes, unlike Spinoza, had the sovereign serving as the arbiter of right opinion in religious and other matters — for the sake of civil peace, of course. The one time that Spinoza mentions Hobbes is in a note in his treatise: “Now reason (though Hobbes thinks otherwise) is always on the side of peace, which cannot be attained unless the general laws of the state be respected.”

Spinoza wrote:

The rites of religion and the outward observances of piety should be in accordance with the public peace and well-being, and should therefore be determined by the sovereign power alone. I speak here only of the outward observances of piety and the external rites of religion, not of piety, itself, nor of the inward worship of God, nor the means by which the mind is inwardly led to do homage to God in singleness of heart.

Moreover, Nadler says, “Spinoza does not support the absolute freedom of speech. He explicitly states that the expression of seditious ideas is not to be tolerated by the sovereign. There’s to be no protection for speech that advocates the overthrow of the government, disobedience to its laws, or harm to fellow citizens.” Citizens should be free to argue for repeal of laws, but that’s about it; they may not rebel or even express ideas that implicitly call for rebellion because it would undermine the social contract and peace. Nadler acknowledges that, despite Spinoza’s definition of seditious beliefs, the vagueness of that phrase and his notion of implicitly inciting rebellion properly trouble civil libertarians.

Nevertheless, Spinoza ends his treatise on a high note: “The safest way for a state is to lay down the rule that religion is comprised solely in the exercise of charity and justice, and that the rights of rulers in sacred, no less than in secular matters, should merely have to do with actions, but that every man should think what he likes and say what he thinks.” Not bad for 1677.

Spinoza knew he was entirely free in the world’s freest state. (Friends had been persecuted by the state for their ideas.) Besides not putting his name on the book, which was written in Latin rather than the vernacular, he wrote in his final paragraph:

It remains only to call attention to the fact that I have written nothing which I do not most willingly submit to the examination and approval of my country’s rulers; and that I am willing to retract anything which they shall decide to be repugnant to the laws, or prejudicial to the public good. I know that I am a man, and as a man liable to error, but against error I have taken scrupulous care, and have striven to keep in entire accordance with the laws of my country, with loyalty, and with morality.

Whatever his limits, we have much to learn from and admire about Spinoza, especially these days.

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