Capital Punishment Isn’t Unconstitutional; We Should End it Anyway

On April 1, The Supreme Court of the United States ruled against death row inmate Russell Bucklew’s appeal of his execution method. Nixing his claim that a rare medical condition would make the execution unconstitutionally “cruel and unusual” by virtue of being excruciatingly painful the Court (in an opinion written by Associate Justice Neil Gorsuch) held that the Eighth Amendment “does not guarantee a prisoner a painless death.”

SCOTUS has been the most prominent venue for opposition to the death penalty, but also the least effectual. Intermittent victories on procedural details produce false hopes that the Court will eventually find the death penalty as such an unconstitutionally cruel and unusual punishment. Then events like the retirement of Associate Justice Anthony “Swing Vote” Kennedy dash, or at least delay, those hopes.

The constitutionality of capital punishment has never really been in question. While some of the Constitution’s framers disliked the practice (“I should not regret a fair and full trial of the entire abolition of capital punishments by any State willing to make it” wrote James Madison, one of those framers and later President of the United States), it was common practice at the time of the Constitution’s ratification and has never in the round (as opposed to in particular details) been successfully challenged on constitutional grounds.

But it’s still wrong, and it still needs to go.

The claim of inherent jurisdiction over life and death — the claim of a “legitimate” power to kill disarmed prisoners, in cold blood and with impunity (as opposed to the currently violent, in defense of self or others, subject to requirement to justify the deed) — is the very definition of totalitarianism.  You can have limited government or you can have capital punishment. You can’t have both.

Over the last half-century, opponents of the death penalty in America have energetically chipped away at both its popularity and its political legitimacy.

Exonerations of death row inmates, and execution fiascoes resulting from Mengele-like experimentation with methods, have probably pushed us past the point of no return as state governments reconsider (and in some cases declare moratoriums on) capital punishment.

In 2016, two American political parties — first the Libertarian Party, then a few weeks later the Democratic Party —  enshrined opposition to capital punishment in their platforms.

In an era of ever-growing government power, this is one issue we seem to be moving in the opposite direction on. We should move faster.

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Pardoning Assange Would be the First Step Back Toward Rule of Law

On April 11, the ongoing saga of journalist and transparency activist Julian Assange took a dangerous turn.  Ecuador’s president, Lenin Moreno, revoked his asylum in that country’s London embassy. British police immediately arrested him — supposedly pursuant to his “crime” of jumping bail on an invalid arrest warrant in an investigation since dropped without charges but, as they admitted shortly thereafter,  actually with the intent of turning him over to US prosecutors on bogus “hacking” allegations.

The US political class has been after Assange for nearly a decade.

In 2010 WikiLeaks, the journalism/transparency service he founded, released information revealing US war crimes in Iraq and Afghanistan, as well as State Department cables exposing — among other things — Hillary Clinton’s attempts to have American diplomats plant bugs in the offices of their UN counterparts (Clinton, at one point, tried to raise the possibility of having him murdered for embarrassing her so).

In 2016, WikiLeaks released Democratic National Committee emails — provided by an as yet unidentified whistleblower — exposing the DNC’s attempts to rig the Democratic presidential primaries in Clinton’s favor.

At no point has Assange been credibly accused of a crime. He’s a journalist. People provide him with information. He publishes that information. That’s an activity clearly and unambiguously protected by the First Amendment.

Even if Assange was a US citizen, and even if his activities had taken place in territory under US jurisdiction, there’s simply no criminal case to be made against him.

So they’re manufacturing one out of whole cloth, accusing him of “hacking” by asserting that he assisted Chelsea Manning with the technical process of getting the 2010 information to WikiLeaks.

But once again: Assange is not a US citizen, nor at the time of his alleged actions was he anywhere that would have placed him under the jurisdiction of the United States.

Even if he did what he’s accused of doing, the current state of affairs is the equivalent of the city government of Chicago asking Norway to extradite a French citizen on charges of not cutting the grass at his villa in Italy to the specifications of Chicago’s ordinance on the subject.

There are certainly criminal charges worth pursuing here.

The US Department of Justice should appoint a special counsel to probe the Assange affair with an eye toward firing, seeking the disbarment of, and prosecuting (for violations of US Code Title 18, Sections 241, Conspiracy Against Rights, and 242, Violation of Rights Under Color of Law) the DoJ bureaucrats who hatched this malicious prosecution.

The first step in the process, though, is for US president Donald Trump to pardon Julian Assange for all alleged violations of US law on or prior to April 11, 2019.

Assange is a hero. Time to stop treating him like a criminal.

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Mandatory National Service: “Strengthening American Democracy” by Ignoring Americans’ Rights

On January 23,  the US National Commission on Military, National, and Public Service released its “interim report”  following up with hearings for public comment in February.

The Commission’s motto, or at least the sentiment expressed in large font at the top of its web site, is “Strengthening American Democracy Through Service.” But the report itself bespeaks a working definition of “American democracy” completely at odds with both long-held American standards of freedom and basic rule of law.

The commission reports that it is “considering ways to implement universal service, such as …. Establish[ing] a norm for every American to devote at least a full year to either military, national, or public service; and Requir[ing] all Americans to serve, with a choice in how to satisfy the requirement.”

As a matter of law, that last suggestion was — or at least SHOULD have been — settled in 1865 with the ratification of the 13th Amendment to the US Constitution: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

As a matter of the values for which Americans rose up and fought their revolution, they are clearly laid out in the Declaration of Independence: “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 …”

Put differently — and this is a universal, not merely American, moral claim — your life belongs to you, not to the state.

The state has no legitimate power to take your life, or any portion of it, from you, nor any legitimate power to force you to serve its goals rather than seeking after your own happiness.

“Mandatory national service” is slavery, full stop. It’s a moral abomination with no conceivable justification in anything resembling a free society, and under the US Constitution in particular it is clearly and unambiguously illegal.

And yes, that includes the military draft, contrary to the sophistry of the US Supreme Court’s Chief Justice Edward Douglass White, Jr. in 1918’s Arver v. US ruling upholding that institution in World War One.

If anything, a military draft is even more repugnant than non-military “mandatory national service” insofar as it goes beyond deprivation of liberty and pursuit of happiness and, as a matter of policy, places the draftee’s very life in danger.

The full brief of any legitimate National Commission on Military, National, and Public Service, properly understood as a matter of both morality and law, would be to  recommend that Congress abolish the Selective Service System and its mandatory draft registration scheme.

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Who Owns You?

The issue comes down to whether the individual is viewed as a private person or as public property: the former has no obligation to the community to be or stay healthy; the latter does.

Virtually everything the Founding Fathers sought to achieve by separating church and state has been undone by the apostles of modern medicine, whose zeal for creating a therapeutic state has remained unopposed by politicians, priests, professionals, journalists, civil libertarians, and the public.

–Thomas Szasz

Many people have legitimate complaints against the Food and Drug Administration. For example, during its long history, the FDA has delayed the marketing of badly needed drugs and medical devices, leading to unnecessary pain and death. Excessive bureaucratic requirements for testing have made drugs more expensive than they would have been otherwise. And, as I’ve detailed elsewhere, its regulation of tobacco and nicotine interferes with people’s enjoyment of those products.

I want to suggest, however, such isolated complaints fail to go to the heart of the matter. The problem is not this or that regulation. Nor is the problem even the FDA itself. The root problem is the government’s claim to jurisdiction over so-called “public health.” In the United States, once Congress assumed this power and created myriad regulatory agencies to exercise it, the door was opened to the kinds of mischief that Thomas Szasz (1920-2012) placed under the label “the Therapeutic State.” All manner of interference with individual freedom can be and has been presented in the name of safeguarding public health. It’s a Pandora’s box.

The ultimate question is: who owns you? The answer will determine who is to be in charge of health.

The courts have routinely affirmed that the government has a “substantial interest” in the “health, safety, and welfare of its citizens.” In other words, citizens are public property. It’s time that this currently uncontroversial premise was questioned.

The modern state’s “substantial interest” in the physical and mental welfare of its citizens is an echo of the pre-liberal era, when the sovereign was seen in part as the father and custodian of the physical and spiritual welfare of his subjects. Paternalism served the interests of the sovereign, of course: he needed healthy taxpayers and soldiers. But the relationship was bigger than that.

The liberal revolutions of the 18th century did not fully push aside that model of governance, and many vestiges of the old regime have remained. Whatever the rationalization, whatever the ostensible basis of authority, the state was (and is) about taboos and social control. Of course, the form changed — church and state have been more or less separated — but in many ways the substance has been unchanged. The power of state-related clergymen was succeeded by the power of state-related medical men (including psychiatrists) and putative scientists. As the theological state receded, the therapeutic state advanced. Illness (including so-called mental illness) came to play the role in public policy that sin once played. Health stands in public life where salvation once stood. Treatment is the modern way of redemption. The burning of witches was succeeded by, for example, the confinement in madhouses of people who had committed no crimes. Electroshock and lobotomy replaced the rack and thumbscrew. The pattern repeated itself in the United States; state governments involved themselves in public health from an early date, followed by the federal government. Drug dealers and users became the modern scapegoats who had to be cast out (imprisoned) to protect the public’s health, although drugs entered people’s bodies by volitional acts. (On the resemblance between the theological and therapeutic states, see the works of Thomas Szasz, a psychiatrist who made a career demonstrating the unappreciated parallels. Links to many articles are here.)

In the modern age, Szasz wrote, “To resolve human problems [e.g., “bad habits”], all we need to do is define them as the symptoms of diseases and, presto, they become maladies remediable by medical measures” — more precisely, political-medical measures. Doctors, having been deputized by the state, wield power they could have not obtained otherwise. (The head of the FDA, Scott Gottlieb, is a physician.) Thus we have (to use another phrase from Szasz, “the medicalization of everyday life.” For example, any disapproved behavior that anyone engages in repeatedly is branded an “addiction,” which is in turn defined as a disease, as though calling behavior, which has reasons not causes, a disease were not a category mistake. Never mind that metaphorical, or mythical, diseases are not real diseases. (Are substances or people habit-forming?) To say that an ascribed disease is a myth is not to deny the behavior or even to deny that the behavior may a problem for either the actor or the people around him. As the philosopher Gilbert Ryle wrote, “A myth is, of course, not a fairy story. It is the presentation of facts belonging to one category in the idioms belonging to another. To explode a myth is accordingly not to deny the facts but to re-allocate them.”)

It is in this light that we should view the FDA and other government medical and scientific entities. They are part of a massive apparatus of social control, making their personnel agents of social control, not truth-seeking. Whether the FDA, for example, is a friend of industry or an adversary (at different times it’s been both), the public is ill-served precisely because the right of individual self-determination in a free market, including tort- and fraud-redress procedures, is undermined by prohibitions and restrictions. It is also ill-served by the monopolistic effects of centralized political authority over science and medicine. (On the FDA’s growth, see this.) Free competition is the universal solvent because facts emerge through rivalrous activity, both economic and intellectual.

Many people don’t see things that way, of course, and so government has increasingly controlled people’s choices with respect to health and science. On the basis of the fiction that the free market has failed in these realms — when has it actually been tried? — politicians, bureaucrats, and deputized practitioners have gained power. A gain in political power, Albert Jay Nock taught us, necessarily means a loss in “social power,” that is, self-control by individuals and their voluntary associations (including families). If self-control is denied in one area of life, we should not be surprised to see it fade from other areas of life. Today, the battle cry is “Medicare for all!” But if “the public” (the state) is to pay for everyone’s medical care collectively, won’t the public’s putative representatives want to impose restrictions on individuals’ risky behavior if for no other reason than to minimize the hit to the government’s budget? What then becomes of what’s left of individual freedom?

The coercion exercised by the government-medical complex is routinely defended as being for people’s own good: in this view, they are compelled to do only what they really wish to do but cannot because of addiction, mental illness, etc. To Szasz, this is “the authoritarian, religious-paternalistic outlook on life,” to which he responded: “I maintain that the only means we possess for ascertaining that a man wants to [for example] stop smoking more than he wants to enjoy smoking is by observing whether he stops or continues to smoke. Moreover, it is irresponsible for moral theorists to ignore that coercive sanctions aimed at protecting people from themselves are not only unenforceable but create black markets and horrifying legal abuse.”

Szasz added: “The issue comes down to whether the individual is viewed as a private person or as public property: the former has no obligation to the community to be or stay healthy; the latter does.”

We know how the “public health” lobby views the matter. When it panics over how much smokers “cost the economy” in lost productivity (through sick days and shorter lives), the lobby is proclaiming that Americans are indeed public property. How dare they enjoy themselves and risk their health at the expense of the economy, the people, the nation? (The Nazis and Bolsheviks followed this idea all the way.) In contrast, quaint classical liberals believe “the economy” — that is, the institutional framework for free exchange — exists to serve people. When the “public health” lobby advocates coercion for a person’s own good, in reality it does not speak of treatment and cure but of assault and battery — and perhaps torture. A medical relationship without consent is like a sexual relationship without consent. But few people understand that.

Perhaps sensing the flaw in the case for coercion based on preventing harm to self, much medical coercion is offered in the name of protecting others. There is a grain of truth here, of course. People can carry deadly communicable diseases. (Whether the state’s centralized bureaucracy is needed or competent to deal with this is another question.) But as the public-choice thinkers point out, state officials won’t be satisfied with such a narrow mission as protecting people from such diseases. Public-health jobs will tend to attract people dedicated to reforming other people’s “vices.” Inevitably, they will push the boundaries to acquire more power, money, staff, and prestige — all dedicated to breaking our “bad habits.” The alleged threat from second-hand smoke is in no way analogous to the immediate threat from a communicable disease. The former can easily be dealt with through contract and other voluntary arrangements but that doesn’t stop the public-health zealots from working to outlaw smoking in bars, restaurants, and even tobacco shops.

But what about the children? In a free society, families are responsible for raising children to be autonomous adults. Of course, this does not always happen, part of the reason being the government’s own obstacles, such as rotten schools for low-income kids. At any rate, history makes clear that government crusades, say to keep adolescents from doing “adult” things — such as drinking, smoking, and now vaping — only adds to their allure and has horrendous unintended consequences. Fruit is harder to resist when it is forbidden. Meanwhile, adults find themselves harassed — in the name of protecting the children — as they go about enjoying themselves.

Would life be perfect if “public health” were left to free and consenting adults in the free market? No, of course not. But a real-world free society should not be compared to an unreal and unrealizable utopia of all-wise, all-knowing, and all-good “public servants” who have only your health and welfare in mind. Rather, it should be compared to the real world of fallible, morally flawed, egotistical, self-serving, and centralized politicians and bureaucrats whose worldview is one where they give orders and you obey. Markets — which is to say, people in both profit-seeking and non-profit capacities — are capable of producing reliable consumer information and guidance, not to mention certifying the quality of products. They do it every day. Governments, after all, are comprised of nothing but human beings.

“Those who would give up essential liberty,” Benjamin Franklin might have said, “to purchase a little temporary health, deserve neither liberty nor health.”

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Jared Interviewed on the Everything Voluntary Podcast (34m) – Episode 005

Episode 005: Jared was a guest on the Everything Voluntary podcast in May 2018. With host Skyler Collins, they discussed the following topics: the Pacific northwest, career electrician, second marriage and dating, his political journey, Jack Spirko, Stefan Molyneux, Austrian economics, Lysander Spooner, challenging jurisdiction, Larken Rose, cognitive dissonance, outgroup bigotry, and more.

Listen to Episode 005 34m, mp3, 64kbps)

Subscribe via RSS here, or in any podcast app by searching for “voluntary contrarian”. Support the podcast at Patreon.com/evc or PayPal.me/everythingvoluntary.

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The FDA’s Assault on Tobacco Consumers

We’ve all heard horror stories about the run-amok regulatory state. Enabled by open-ended statutes passed by Congress and signed by presidents, regulatory agencies have acquired virtual carte blanche to write rules governing peaceful behavior. Even when a seemingly narrow purpose has been set out, regulatory rule-making has engaged in mission-creep with alarming frequency.

Here’s an example that gets little attention because it directly impinges on the freedom of only a small number of Americans. For the last 10 years the U.S. Food and Drug Administration has been writing draconian rules governing the makers and sellers of cigars, smokeless tobacco, pipe tobacco, and even the pipes themselves (which of course are not made from tobacco) in what appears to be part of an effort aimed indirectly at eradicating these products from the marketplace. The fanatical campaign, reminiscent of America’s earlier campaign to prohibit alcoholic beverages, ought to concern everyone, including nonsmokers, because if it succeeds, other products could well be targeted on the grounds of public health. It is not just tobacco users who need to worry about the regulatory state’s tactics.

The assault on all forms of tobacco use, as well as the use of vaping devices, or e-cigarettes, which don’t use tobacco, is defended on public-health grounds, but we must not be fooled by this appeal. As Thomas Szasz showed throughout his career as the top critic of what he dubbed the “therapeutic state,” this assault is moral, cultural, and political, not scientific or medical. The anti-tobacco campaigners are not content merely with providing useful information, leaving people free to use it and the products as they wish. Instead, they support the use of state force to achieve their objectives; their advocacy of force is aimed not only at ostensibly protecting other people from smokers (which could be accomplished through contract and other consensual practices), but ostensibly at protecting smokers from themselves. (I should say “ourselves” because I’ve been a devout pipe smoker for over half a century.) Medical science can tell you what may happen to your body if you ingest a substance, but it cannot reasonably assert that in light of that information the state ought to prohibit or penalize the use of that substance. A physician qua physician has no special qualification to counsel when the use of force by the state or anyone else is justifiable.

Before describing the insidious campaign now underway (which will span a few of these columns), I want to establish a badly overlooked fact. The anti-smoking, or more generally, anti-tobacco, or more generally still, anti-nicotine campaign assumes that use of the relevant products entails costs but no benefits to “society.” Of course, that cannot be correct. How do we know? We know this because individuals choose to consume the products; what’s more, they pay money (that is, they give up something of value) to do so. If consumers received no subjective benefit from the products, they would not buy or consume them. Lots of people have quit consuming them after deciding that the benefits outweighed the costs to them.

Among the benefits, which people of many cultures have enjoyed for centuries, are the well-known pleasant and useful effects of nicotine (as an aid to relaxation and concentration) and the palate-pleasing nature of the tobacco leaf. That those benefits can’t be quantified is no good reason to pretend that they do not exist. If tobacco products could effectively be banished (which they can’t be because of the robustness of black markets), the people who now enjoy them would be less well off in their own eyes; that is, the quality of their lives would be diminished. Why don’t those individuals count in the public-policy discussion? Are they lesser persons?

The campaign against tobacco and its consumers goes back several decades, but in 2009 it took a giant leap. In that year Congress and President Barack Obama enacted the Family Smoking Prevention and Tobacco Control Act, the statute empowering the FDA to regulate whatever it deems “tobacco products.” Later, we will see why the word deems is so important. That authority would be given to the FDA should seem odd since tobacco is neither a food nor a drug in the pharmaceutical sense; people don’t eat it or treat (real or imagined) illnesses with it. (Recreational drugs are under the jurisdiction of the Drug Enforcement Agency — unfortunately.) If the issue were consumer welfare, establishment types might have wanted the authority given to the Consumer Product Safety Commission or the Federal Trade Commission. So why should the FDA have anything to do with tobacco? The answer lies in Szasz’s term the therapeutic state. The government can claim plenary power over virtually any peaceful behavior simply by claiming that the public’s health is at stake.

At any rate, the word family in the name of the legislation is meant to suggest that the goal of the legislation is to keep children from becoming cigarette smokers, a worthy goal if pursued without the help of government. The first “finding” listed in the act is this: “The use of tobacco products by the Nation’s children is a pediatric disease of considerable proportions that results in new generations of tobacco-dependent children and adults.” (We’ll leave aside the Szaszian question of how the use of a product can be a disease. Behavior may lead to a disease, but it is not in itself a disease.)

While we can stipulate that smoking cigarettes constitutes a personal health risk (as many other legal things do), we may reasonably doubt that children are all that the bill’s supporters have in mind. Children are unlikely customers for premium cigars, tobacco pipes, and premium pipe tobacco, which are not within a typical child’s means. (Government campaigns to keep children from doing something will likely be undercut by the forbidden-fruit phenomenon: if the government thinks an activity or substance is that much fun, then it must be tried. Better leave such matters to families and voluntary associations.) Thus, it is hard not to see the act as part of the larger campaign to rid America of tobacco and non-tobacco nicotine products. Through this lens, the FDA’s actions since 2009 have a certain logic, but it is a logic that is inimical to individual liberty and responsibility. We’ll explore other features of the anti-tobacco campaign in future columns.

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