Tuesday, April 22, 2014

Bundy's Ranch: The Rule of Law, Rights, State Powers and Civil Disobedience

I haven't been able to dig very deeply into the material on Bundy Ranch yet, new job & all, but there is a fundamental involved in the case which applies far beyond one rancher in Nevada, it is fundamentally at the root of this controversy and so many others today, and I've seen it referred to, claimed by, or ignored by, both sides: the Rule of Law.

In responding to a tweet the other day, I'd said that:
"When is Law less than Law?When its based upon nothing but laws."
Which baffled and infuriated some fine folks in the twitterverse:
  • "I guess we can ignore any law that is based on laws. All then
  • That is bullshit! Laws r laws! U don't get to pick & choose! That is claptrap! U follow the law or u don't! Its simple!
  • We r supposed to be a nation of laws. #ClivenBundy doesn't get to just ignore laws he disagrees with & pull a gun!"
That sort of response, from the left and the right, worries me more than any other aspect of the case.

Ladies and Gents, 'Rule of Law' means much more than if there's a law, you obey it - nothing in that differentiates the Western conception of the Rule of Law from the expectations of any of the worlds tyrants who also have reams of laws which they fully expect everyone to obey as well. It also means more than the somewhat higher concept that 'No one is above the law', and the lack of depth shown in these very passionate responses, gives an indicator of just how large the problems are that we face in righting the bad laws which burden our courts and our lives. The question that we need to be asking ourselves more than any other, is the one Dana Loesch asked last week, 'What is the Rule of Law?"

Frightening to consider just how wrong
this confrontation could have gone

At the very least you should understand it to mean that no particular law exists separate & apart from the entire body of our laws. Each law must integrate with related laws without direct contradictions, else they must be modified or overruled, forming precedents which themselves must stand the same testing process, and all of which, in America, must fit within our constitutional framework - and that framework must remain rooted in a foundation of Right Reason, which is what all of our laws draw their legitimacy from.

Wait, what? Right Reason? Whu...?

Before looking at what I mean by that, let's first try disregarding it.

Let's assume that "When is Law less than Law?When its based upon nothing but laws." is just silly and meaningless drivel, and let's suppose that laws need no further basis than the agreement of other laws to validate them.

Ok, then ask yourself:
  • Q: What then can become law?
  • A: Whatever the lawgivers provide

When law alone justifies law, then by legislation or court judgment, it could be lawful, based upon nothing more than a stroke of the pen to create the necessary basis in law, to take half or all, of your earnings, by law? As it would be lawful to spy on you? To monitor the activities in your bedroom? Lawful to validate or invalidate your marriage? Lawful to prevent you from having more than one child? Or demand that you have more? Lawful to designate unpopular minorities to be used as subjects in medical testing?

Here's another question for you:
  • Q:What is it you imagine that could not become law?
  • A: Nothing.

What? Are you wanting to say
"No, they can't just make anything a law, we're a democracy afterall, a majority of the people have to approve!"
No, sorry, EHHH! When you say that laws need nothing but laws to stand upon, then you don't get to reach outside of the laws in order to regulate the writing of them. If you claim that 'the rule of law' requires nothing but other laws to justify them, then that's that. In a circular system such as that, what those who write the laws, say is law, acquires the unquestioned force of law, whether those who write the laws choose to write them fairly or unfairly, passing them by majority rule, or by dictatorial rule, decreeing by law that the laws are hence forth to apply to some, many or all of the people; for whatever the laws say are lawful, are but the result of the arbitrary choices of the lawmaker(s) who have the power to write the laws, and the laws that justify them.

That is the Pro-Regressive ideal of Might Makes Right, and it is the essence of the legal school of Positive Law that has led our judicial system for the last century. With that as the basis for the laws, parents soon find that they have little say in the education of their own children, and indeed children can be lawfully taken from their parents, or it can be ruled, as it was done by Judge Taney's court in the Dred Scott case, that it is perfectly lawful for one person to own another person, or as that judicial titan of the 20th century, Oliver Wendell Holmes, idol of left and right, thought that the Supreme Court could rightfully rule that people judged to be 'botched' could be sterilized against their will, since:
"...It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind..."
, and in each of these cases, and more, each law, as it was justified by other laws, was every bit as legal as laws forbidding robbery - not because the laws are valid and Just, but simply because they are laws which other laws have said are justified. The old maxim of Gresham’s Law,'bad money drives out good'. should be kept firmly in mind because it most certainly applies to law as well, what is Just and Right is driven out by what is unjust and made with more concern for the exercise of power than the evaluation of Right and Wrong. Such laws are laws, not because they aspire to some degree of rightness, but because those in power, whether one or many, favor them - they can make no claim to valuing what is right, let alone of actually being right. And if there is any law, or judgment that is made against you through such laws which you object to, you will find that you have no other recourse but to those same laws, administered by those in power, who are applying them against you.

And should those in power pull out their pens and phones to alter the laws as they see fit? Then what was legal yesterday can become illegal tomorrow, and you may very well wake up to find yourself an outlaw for any number of reasons, such as not turning in your legally purchased arms which have been made illegal with the stroke of a pen, or for not buying health care insurance you'd decided you didn't need. Under such a system of 'justice', if the whims of lawmakers transform you, through your once legal actions, into a criminal, then that's just too bad for you.

You do see the problem here, don't you? 'Dana summed it up well,"
"...What is the rule of law if the rule can be broken? What is the rule of law if it is inconsistently applied according to politics? If we’re going to discuss rule of law, this situation would have never happened in the first place. The Bundys and those who agree with them aren’t devaluing the rule of law, rather, they’re pointing out how those who have violated the rule of law are now trying to hold it up as a standard of measure. Bureaucrats writing their own regulations to later violate is a bad thing. Making a specious argument based on a situationally-endangered turtle is a bad thing...."[emphasis mine]
Those who are writing the laws, those administrating the laws, those writing regulations having the force of law, and who are calling people like Cliven Bundy 'domestic terrorists' for opposing their laws, are themselves the ones who have no visible regard for the Rule of Law. Laws written without reference to anything other than other laws for their own justification, serve only to put you entirely under the power of those who write the laws, and you can be sure that justice will not be their purpose.

Laws, to be good laws, to be Just laws, must be derived through and justified upon some standard outside of the laws themselves, and no, ladies and gents, simply providing a written constitution is not enough. A constitution which refers to nothing but itself, is simply another circular means of having laws justify other laws, and as we just saw, it doesn't take a lot of thought to grasp that without external references, such circular laws are in reality illegitimate. But. We can know that only because you are yourself making that judgment by evaluating them based upon something outside of the laws themselves. Our Constitution, when it was still alive within We The People, was rarely thought of apart from those principles external to it - that was what gave our Rule of Law legs in reality as well as a standard to judge their soundness by. With that as the standard for our laws, then we have a means of discovering its shortcomings, and also a guide for how to right them (see the 13th, 14th & 15th amendments).

So what is that standard?

Right Reason
There are two statements about the Law that are vital to the understanding of what the Western ideal of the Rule of Law is. The first goes at least as far back as Aristotle, and he assures us it goes much further back than that, and that is the idea that :
'No one can be judge in his own cause; Hear the other side'
That is anathema to the rule of tyrants, who by definition rule in their own causes and interests, and care nothing for hearing any other side but their own. That has been foundational to our western conception of law, and was central to the writing and selling of our Constitution, as is easily seen here in Federalist #10:
"No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time;"
When Laws require nothing more than other laws to justify themselves, then the law effectively becomes a judge in its own case, and all manner of evils will follow from that.

The second point comes to us from Cicero, and it was something our Founders were very familiar with, as it was found in the common educational materials of their time, and it was also a vital part of every education in the law during that era which produced our Constitution, not because it was old, which it was even then, written in 54 B.C., but because it was understood to be right and true in Cicero's time, as well as in their own time, just as it is right and true today and will still be right and true tomorrow and through times to come (why it is no longer found in any textbooks today is a question for another time). From Cicero’s Commonwealth (often called 'The Republic'), from Book III:
"True law is right reason in agreement with nature; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly called punishment."
Right Reason in agreement with nature, means not only must an idea seem to be true, it must also prove to be true in reality. That understanding preceded Cicero and continued on as a maxim of law; shaping and instructing the formation of Western Law in general and English Law in particular. The understanding that ultimately led to conceiving of individuals as having Individual Rights, would not have been possible without that understanding. And because that maxim remained central to our understanding of Law, it continued to develop and continued to influence the formation of our own laws a thousand years and more afterwards.

Thomas Jefferson, in writing to James Madison in Feb, 1826, regarding what were the proper legal books that should be used for the instruction of law in his college, wrote with some urgency, about Sir Edward Coke (1552 – 1634, English Jurist) and his instructions on learning the Law:
"You will recollect that before the revolution, Coke Littleton was the universal elementary book of law students, and a sounder whig never wrote, nor of profounder learning in the orthodox doctrines of the British constitution, or in what were called English liberties. You remember also that our lawyers were then all whigs."
IOW, Coke's instructions on The Law, particularly the The First Part of the Institutes of the Lawes of England, which Jefferson was speaking of, were central to and formative of the legal thinking of those who not only reasoned for our break with England over the injustices done to their 'Rights as Englishmen', but was also implicit in the writing of our Constitution. Typical of Coke's instructions in law, were such as this,
"And this is another strong argument in Law, Nihil quod est contra rationem est licitum.5"-> 5. [Ed.: Nothing that is against reason is lawful.]
That phrase, 'Nothing that is against reason is lawful', is not only central to our understanding of law, it is unreasonable to think that liberty could ever be had without it. As we've been straying further and further from that understanding since the beginning of the 20th century, look around and see if you think it can continue to. And while such a maxim may not be a rule of law itself, one that a judge can rule upon, it does provide the means of reaching outside the circularity of the self referencing laws, so that good law can stand to reason in relation to sound thought, reality, and our lives in it, in order to be considered to be right and true.

Does that mean that our laws can simply appeal to 'Right Reason' in order to justify them? No. Is it a guarantee against ever making errors? No, and nothing is. But what it does do is provide a basis for calling the legitimacy of any law into question, and points to the standard they must comply with in order to be justified. When that understanding animates our approach to the law, it prevents an accretion of laws from creating their own reality, it requires that all law retain their purpose and connection to the reality of human life and right and wrong.

These views are not new, though few of today's legal realities reflect them. When regulatory agency's sit in judgment of their own regulations, the law is being made into a judge of its own interests. When the law, which is the means of upholding the lives, rights and property of the people, is turned against the livelihood of the people in a region, the law is not hearing the other side. When We The People are being afflicted with the law, when people are being strong-armed by the law, when govt agencies such as the BLM, and other incestuously related courts and agencies, demonstrate their intent to write and rewrite whatever regulations seem most likely to prove useful to running off those who have a long history of working the land they seek, such as they have with Cliven Bundy, the last rancher in his region - and his is by no means the only case, or state, it is happening to - then it is clear that these cases are not being heard by the law. When the reasons that are given for these actions is to ostensibly to preserve an idyllic existence for desert turtles (which, btw, are 'euthanized' as their numbers become inconvenient to those claiming the importance of their being preserved), then we have good reason to question what and who the law is being used to serve, for obviously, reason, reality and truth aren't playing a large part in the govt's plans.

Some in congress are starting to realize this, and it even appears that a number of States are beginning to see and do something about it as well. It should be getting clear that the laws our regulatory agencies are imposing upon us are not standing the test of Right Reason, and it should be becoming clearer still that what we are dealing with is not the rule of law, but the means of our being ruled by means of laws.

The Revolutionary Rule of Law
How has this come to pass? What 'The Rule of Law' is, and what the purpose of the law is and what can serve as a basis for it, is the ever revolutionary question we should be asking ourselves today, and the answers you give can still be every bit as revolutionary, as they once were and likely always will be.

If, on the one hand, you see Individual Rights as being an inherent and necessary part of our nature as reasoning human beings, as I do, then law, to be valid, good and proper, must respect, uphold and defend those Rights. To do that it needs a sound framework, such as our Constitution, and with that purpose in mind, the law sets out the powers and limitations of government, within which federal and state laws are to be written, and for that purpose power is gathered and formed into Govts by means of law, and in the same breath is leashed by its laws. Of all of the schools of law, the one that is most compatible with that view, the one whose fundamentals were identified by Aristotle, and Cicero, embodied in Magna Carta, and were expounded upon by Coke, and formed the understanding from which our Constitution and Declaration of Independence were derived, is that of Natural Law. Its insistence that the laws must comport with Right Reason was, is and always will be a truly revolutionary view, and a leap of Progress never before made. Unfortunately for us, very few of our educators, legislators or Supreme Court Justices today still recognize, or attempt to interpret and apply the law, in accordance with that view; not Scalia, Roberts, Alito... Rehnquist, or nominees such as Bork, etc, who hold instead to varying views of textualism, originalism and traditionalist flavors of what is still essentially Positive Law in conservativish drag. Clarence Thomas is essentially alone in his respect for Natural Law, and you've got to go back towards the first half of the 20th century in order to find other Justices who attempted to do the same.

But if on the other hand, you yearn for the spirit of those timeworn views, which assert that the law is primarily a means for government to form, induce or nudge societal behaviors towards a 'greater good', then what you are yearning for is the rolling back of the only true progress made in political science over the last thousand plus years, then at least recognize that the views you hold are truly Pro->Regressive. Those views which see 'rights' as privileges which government can extends to those individuals in society it deems to be the most deserving, the most in need of particular benefits, protections or aids which justify seizing the power to take from some to extend to others - raising some above the law while throwing everyone else under it - they shove Right Reason and Individual Rights off the table. Those seeking the power to use power in order to impose their dreams of social justice and other 'greater goods' upon us, will find fellow travelers in former Justice Breyer, who wants to transform your right to bear arms, as protected by the 2nd Amdt, into a permission for some to retain some particular guns, in some govt approved situations, he is most definitely their guy.

Unfortunately, for the supporters of Positive Law, our Constitution was written and originally amended through the lens of Natural Law. That was once considered too obvious a fact to need repeating. Today it obviously needs stating and repeating often and continuously. And for those who like to say that Natural Law and the principles of the Declaration of Independence have nothing to do with our constitution or with governance in America, I'll direct you to consider (H/T Chris Loesch) how the Congress of the United States of America expressed their expectations for the people of the then Nevada Territory, to consider in their application for statehood: "Act Of Congress (1864) Enabling The People Of Nevada To Form A Constitution And State Government"
"Sec. 4. Authorization to form constitution and state government; limitations. And be it further enacted, That the members of the convention, thus elected, shall meet at the capital of said territory on the first Monday in July next, and, after organization, shall declare, on behalf of the people of said territory, that they adopt the constitution of the United States. Whereupon the said convention shall be, and it is hereby, authorized to form a constitution and state government for said territory: Provided, That the constitution, when formed, shall be republican, and not repugnant to the constitution of the United States, and the principles of the Declaration of Independence: And provided further, That said convention shall provide, by an ordinance irrevocable, without the consent of the United States and the people of said state:— First."
If the principles of the Declaration of Independence had nothing to do with our constitution and of governance in The United States of America, and held no sway past the revolutionary era, as Pro-Regressives stridently claim, then why oh why would Congress include a statement in the legislation for admitting another state into the union and directing them in writing their own constitution, on the terms that "...Provided, That the constitution, when formed, shall be republican, and not repugnant to the constitution of the United States, and the principles of the Declaration of Independence...", eh? It simply doesn't stand to reason that they would do such a thing, for no reason, does it?

Unfortunately for us, it has been the Utopian folly of Positive Law, of legislating on no other basis than claims of 'the greater good', that has most 'consistently' been used and abused upon us, since the opening of the 20th century.

The understanding which once commonly served as the basis for our Rule of Law, is the real revolution that we are fighting today, and those who don't understand it, or who ignore it, or who seek to act against it for 'the greater good', represent the battlegrounds we need to be concentrating upon - if we lose them, we lose the war. Time will tell which view will ultimately win out, but actual liberty can only exist within the context of a view such as that of Natural Law, and if that is snuffed out... we'll get what we deserve.

What's a law abiding person to do?
So what is a person to do when they find themselves up against not only unjust laws, but a judicial system that is itself manifestly unjust, as that of our system of regulatory laws are?

To begin with, it's important that you do not begin making your case upon fundamentally false positions, and one of the most common and treacherous of these false principles, is the bogus claim of 'State's Rights'. It is important to understand that this is NOT a 'States Rights' issue, because the concept of 'States Rights' necessarily means that there can be no Individual Rights unless the state first grants them. I understand the tendency to reach for a shorthand reference, but 'States Rights' is not only not a helpful shorthand summary, it undermines all rights altogether.

Let me say that again: States do not, and cannot, have rights. While States do have powers, as do the people, (see the 10th Amdt:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
) , only individuals have Rights (see the 9th Amdt:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
), and they have them by virtue of their nature as human beings - Rights being those actions a reasoning person must be free to take (or retain what results from them) in order to live as a reasoning being; states most definitely are not reasoning creatures and so they can have no rights.

States are organized power, and those powers which States receive come to them through the consent of the governed who delegate it to them in order to uphold and defend the Rights of their people. It is for our Rights, that governments immense power is leashed by our laws, in order to be served by them. For states to have rights as well, would mean that our rights would be subordinated to the powers of the states, rather than the other way around.

States do not have rights, they have powers. Powers defined and restricted by laws, and the rights of We The People are critically dependent upon those powers being held by laws. Anytime a state is allowed to exercise power outside the bounds of the laws which define them, then everyone's rights are imperiled.

When, as now, those powers are abused by another state, whether a fellow state or federal parent, that is an instance of power escaping from the Rule of Law, and it is a danger to everyone's rights and to the lawful power of all other states. States must resist, in the name of their peoples rights, the encroachment of power acting outside of the law.

However, while states have the power to state their opposition to unjust laws and to withdraw their administrative support of them (see the original Jeffersonian and Madisonian 'nullification', as opposed to the Calhounian sense that animated the Civil War era and many of those agitating for 'nullification' today), they cannot act outside of their defined powers against fellow state or federal powers, without jeopardizing what really is a fundamental basis for the rule of law. What the Rule of Law requires most, is leashing unfettered power to the law - creatures of the law, cannot be allowed off their leash! - that is the path to war and the destruction of the law.

Individuals however, do have both Rights and Powers, including the power to lawfully oppose laws and seek their alteration, and as with states, individuals have the power to not comply with unjust laws, though that does not mean they they can violate or obstruct the law.

When a person finds that the laws being applied to them are unjust, they have a duty to speak out, as all people's rights are in jeopardy by the mere existence of unjust laws. An just law, means unreasonable law, and as Coke said: "Nothing that is against reason is lawful", which in practice means that govt has gained hold of unrestrained power - that is a danger to all. Implicit in 'The Rule of Law' is the necessary and continual attention and re-evaluation of the laws, by the people.

The first stage of non-compliance, is bringing suit against the law, fighting it out in court, and in the court of public opinion. But when you find no response, no redress, when you find yourself facing a system that has set itself up to NOT hear the other side, and which sits in judgment of its own interests, then you have a Right and a duty, to not comply quietly with those laws.

So... wait... how can the laws have the force of law, if they can be ignored by the people?

It can't. And they can't. Which doesn't make matters easy.

The Right road is not an easy one
The Law must have 'force of law' but at the same time the people must call it into question when their laws seem unjust. The lawful form of opposition is through the courts, working your way up through to the State Supreme Court, and the United States Supreme Court. Failing that, there is a legislative path, as well as that which was ultimately taken through the 13th, 14th & 15th Amdts - and hopefully that path can be taken without a Civil War, as the 19th Amdt, recognizing women's right to vote, or ending Prohibition with the 21st Amdt (which repealed the 18th Amdt).

But when the courts provide no justice, and when We The People have been too inattentive for too long, allowing bad laws to accumulate and be imposed upon us, and if those who should have known better, refuse to, enabling those in power to persist in ignoring our laws and amendments, then it is not unreasonable for people to conclude that they have no option but to refuse to comply with the laws being imposed upon them. In such cases there is a recognized path to be taken, that of Civil Disobedience. And long before Thoreau expressed the concept, it had already been identified and recommended as the proper path during the ratification of our Constitution! See Federalist #46:
"Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If an act of a particular State, though unfriendly to the national government, be generally popular in that State and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty. On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.

But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm."
[emphasis mine]
You see, under the American understanding of Law, such civil disobedience is not undermining or obstructing the lw, but among the oldest safeguards of the Rule of Law!

And that 'General Alarm' which Madison spoke of, is what We The People must raise - Peacefully, violence would only serve to solidify the Federal Govt's position - but through non-compliance, beginning with the people and then through their states, there is a path to successfully bringing the laws back under the Rule of Law first.

The abolitionist, such as John Brown, chose violence, and we not only had a civil war, but additional complications which spread and went unresolved for another century.

The peaceful path was the path taken by the Woman's Suffrage movement, and it was the path taken by Martin Luther King, as explained in his "Letter from a Birmingham Jail", and both exemplify the best use of a citizens power against unjust laws, peaceful, civil disobedience, and vigorously 'spreading the word' and explaining why their actions are being taken. Peacefully.

Understand - drawing the state or federal powers into a contest of arms, is counter-productive, futile, and not nearly justified as yet. Pointless violence serves to uphold no ones rights, and not only does not advance the cause of justice one whit, but will almost certainly bring about a loss of ground and lend the unwarranted aura of 'moral authority' to the state's benefit - which would be intolerable.

But even worse, those calling for violent action are making the classic mistake of preparing to fight the next war by means of the last war - and it is doomed to failure. Not only will it fail to win, it will fail to even see action, because it fails to ever even set foot upon the real battlefield before us.

Understand this: We do not face or require a revolution in our form of government, or in our laws (though we could use some vigorous repealing of them), but in our understanding of them. We already have the best form of government possible - The Declaration of Independence has already been declared! The Constitution has already been written! The government has already been formed! What we've lost is our understanding of them! Guns are of no use in that battle, and that battle is the battle we must fight - and you don't bring a gun to a mind fight! There are not yet enough people that are familiar with, or have a sound understanding of the constitution, let alone the Rule of Law. Who are you going to get to support you? What happens when you get support from those who don't know what they need to know? What form of government do you suppose will follow from those who don't even grasp the one we already have?!

As MLK's assassination shows, that path is not without risk, and not just from the government - it didn't become so disordered without the people being so as well. We The People do need to realize that there will be consequences for non-compliance with the law and incorrect views that are widely held or tolerated. He knew there would be consequences, but he felt it was justified. Refusing to comply with such laws is in a very great sense, your duty. And if you cannot find the ability to oppose them, then you must at least alert and educate your fellows about such laws, just as you would warn someone that their house was on fire. The good news is that you are not alone in this, and together with others, all exercising your freedom of speech and association, you will bring attention to those unjust laws, to the acute embarrassment of those attempting to justify them.

What about the Bundy's use of arms to oppose BLM? Do I think the incident at the Bundy's ranch was a proper exercise of 2nd Amdt rights? No I don't. Perhaps the Bundy's themselves could have made the case for defending their property, but again, it would have been a futile one, and highly unlikely to help their case, or ours. And as I understand it from the reports I've read from here, 1,500 miles away from the action, Cliven Bundy not only did not ask for supporters to come armed, he specifically asked that they come unarmed. That is the proper approach, IMHO, and those who showed up not only armed to the teeth but aiming their weapons at the BLM, IMHO, nearly turned a likely victory - the national media viewing of unarmed [Edit: or at least holstered] protesters facing ranks of armed BLM SWAT could have ended in no other way than it did, this is still America, they had to back down -but if one shot had been fired by the 'militia', that would have turned it all into a violent failure.

We aren't there yet. Sorry, we're just not. And if you think we've reached the level of government opposition and abuse that was faced by those in pre-revolutionary America, or even by those protesting for Woman's Suffrage, or the repeal of Prohibition, or that of the Civil Rights movement, for heaven's sake, you are simply wrong, and painfully uninformed. Fix that. Please. Quickly.

We are afflicted today with a vast array of laws which we are required to face and oppose and protest. Do not comply quietly with them, but keep your civil disobedience civil. Raise questions. The most effective shot you can fire today is to simply speak out. Just do it. Bundy is doing it. Texas ranchers are doing it. New York and Connecticut residents are doing it in regards to the right to bear arms. Parents across the country are doing it in regards to unjust laws in the education of our children. Study the issues, learn the questions, raise them and discuss them with your family, friends and neighbors, calmly when possible, loudly when necessary. The nature of the battle we face must be pointed out and understood, or it will be lost. Martin Luther King jr. succeeded not because he protested, but because his protests brought attention, and then understanding, and then a pervasive disgust that could no longer be ignored, brought it to bear upon unjust laws and to those supporting them, and then they and their institutions fell of their own weight.

Understanding comes first, first yours, and then others. Then solutions can and will be found. But the attempt to jump straight to solutions, through force of arms, is counter productive and misses out on the real work to be done.

Shortcuts in laws are how we got to where we are today. Man up. Do it right. Question, loudly, Ask 'What is the Rule of Law?', and know the answer.

Saturday, April 05, 2014

RTW: A Right to... What?

RTW: A Right to... What?
Threading your way out of a tangled web can be... painful, and heated. I'd wanted to get a few more posts in on Progress vs. Regress before turning to 'Right To Work', but I'm too slow and the time is here now. But before getting to the RTW bill Missouri is in the midst of debating, or what I think about it, let me make clear my position on Politics and on Unions.

Politics: I'm not here to aid or support anyone, or any bill, or any policy in any election, or in any other pursuit for that matter. I'm here to present the ideas I've learned to be true, ideas I believe are important to people's lives, ideas which I think that a person who values their life should be aware of and understand. The core of these ideas are what made America possible in the first place and which neither it nor liberty can continue for long without. It's been said that 'Politics is downstream of Culture', which is very true, but Culture is itself downstream from the ideas which it is formed from. If you don't alter or deepen the ideas which the people of a culture are thinking or are even willing to consider, then you won't change the culture, and that, the ideas our culture is aware of, is the target I use this blog to aim at. True, there is circulation between the two, but simply presenting yourself more fashionably or being more 'edgy', won't accomplish a damn thing.

Unions: The heart and soul of the union, the central idea they were originally formed around and which they are battling to maintain, or even strengthen today, is that they are an organization designed to get what they have no right to, in order to exercise power upon all. The first victims explicitly targeted by Unions are those they claim to want to 'represent': the worker. Their first actions are not taken against the rich, but towards intimidating those workers who aren't inclined to join them, into their membership against their will. Only once enough of the workforce has been pressed into their ranks, do they then turn their tender attentions to 'the rich', using the workers they claim to represent, as tools of intimidation in order to rob 'the rich' and the worker of their right to make their own decisions, neatly gaining power over them all.

Whatever guise they hide behind, 'Trade Union' or otherwise, I despise them all. Sure, some good things may have resulted from actions unions have taken, no doubt some good things have come from the Mafia as well. I'm not impressed by such 'good deeds' and give them no credit because of them.

And yes I know, everyone knows someone in unions who are just swell. My Brother in Law spent a couple decades in a union. My Wife is in a union. Because they had the choice to join their union? No. Because they were compelled to join a union. Whatever good it is that you want to chalk up to unions, I can show one or more evils that have been condoned and accepted into society to accomplish that 'good', and which compounds the initial evil done. That they have been legalized, simply means that the Law has been perverted into protecting thuggery.

Unions are the embodiment of 'Might Makes Right' and few things are more Pro-Regressive than that. I detest them for what they actually are, not for who might be in them or what good might appear to have resulted from them. Anything that hinders them, I'm for. Anything that can legitimately be done to limit their power, or to dissolve them from the American landscape, I am for.

That being said, it is difficult to be a whole hearted supporter of RTW, as the position we are in is too like having to use Romney to vote against Obama, and far too familiar for us on the Right; but no, it's not an unprincipled vote and yes, we've got to do it. But. Is it possible to take a principled stand on ground that has already been rendered unprincipled? Care must be taken. The distastefulness is not just because of the bill itself, but because of the deforming federal laws it must 'respect', and because of the approach the GOP has taken to sell it. And to understand why that is, we need to know some of the background behind it.

RTW? How about a Right to Rights?!
Firstly, and probably least in the minds of supporters of RTW, I object to the Utopian title: "Right To Work". Why? Take a moment and think about what it presumes and what it neglects. A hint as to the problem in Missouri's bill, is in a comment Michigan's Gov. made upon a similar bill:
"Gov. Rick Snyder, who took a hit in popularity polls after he pushed for right-to-work, has said the law “isn’t about being anti-union,” but is “about being pro-worker.”"
Anyone notice the vital party neglected by that comment upon employment? Yep, the employer. This is Law we're talking about. Laws which directly affect the rights and livelihoods of all Americans, and at the very least, for a law to be 'Pro' one side or the other, is to slight the rights of some - minority or majority matters not in the least - the result is to undermine the rights of all. It is either 'One nation, under law', or one group pitched against another, for the benefit of yet another.

But more fundamentally, I object to the term 'Right To Work' because there is no 'right to work', and there cannot be. It is a Utopian and self contradictory term. What do I mean? To claim that there is a 'Right To Work', means that someone, somewhere, somehow, at some point in time, must be compelled to provide jobs as an end in itself, and so those providing the jobs cannot have full political rights themselves, and so no one in that utopia can have Rights, or at least not Rights as understood to be inherent in their nature as human beings, and that leaves only privileges. Privileges bestowed upon some, by those with the power to compel the material of them from others.

There can be no 'Right to Work' and Individual Rights.

Secondly, the strategy used to promote RTW laws disturbs me. The GOP approach is to focus on jobs:
"The arguments surrounding right to work center on economic issues and fairness. Supporters point to greater job growth in the states, mostly in the South, with right-to-work laws. Opponents counter that these states also have lower wages."
What's disturbing about that? It's because arguments that focus primarily on results, on statistics, in this case economic issues and fairness, or in ObamaCare's focus on the uninsured and fairness, disregard or minimize the Rights of those involved and the principles that must be fully respected for those rights to have any real meaning and power under law.

That, I find disturbing.

Do RTW states experience a rise in wages? Pardon me, but I don't really give a rat's ass whether they do or not! Do their people - employers, employees and those they choose to associate with - experience the ability to exercise their rights to make their own decisions, while respecting the rights of others to do the same? If they do, then their wages will more closely reflect the values that they've produced - and in the context of exercising power over people, I don't care about anything else, and govt sure as hell shouldn't be freed to either.

What's that? You think it does matter?

Let me ask you this: Do you believe people should be paid more than the monetary value their efforts have produced? Yes? You are for 'something for nothing'? Then you, left or right, are the embodiment of the Marxist ideal of 'greedy capitalists' which they've successfully branded the Free Market with (Thanks Schools!). If you are alright with that, then please, go find your position on the proRegressive left. Don't worry, they'll make room for you, as soon as you make it clear you have no principles but those of convenience, they'll find the right group to fit you in with.

The actual issue here is do people have the right to form businesses, do individuals - business owner and employee and organizations - still retain one of the few rights included in the original un-amended Constitution, the right to contract? Do business owners have the right to make the decisions required to operate their businesses? Do the potential employees have the right to accept or decline? Do others have the right to form associations and offer their services to both? (See the various versions of skilled worker placement/consultants/project mgmt companies which populate the tech industry. No reason why the same wouldn't work in the blue color industries that unions prey upon... except that they aren't free to, of course)

Or more succinctly: Do people have the right to live their own lives, or not?

Not a litmus test
Don't get yourself into a tizzy, I'm not setting up a 'with me or against me' litmus test over RTW legislation. In spirit I'm wholeheartedly in favor of what I think the spirit of RTW bills are (which adds up to way more spirit over material fact than I'm comfortable with in any law... but leave that aside for a moment). And yes, the Unions are opposed to this bill, which will likely have a large impact on their ever diminishing power. Good on that. My natural urge is to swallow the bile rising in my throat and back anything, such as RTW, that reduces the power and place of unions, and I think any conservative is naturally going to want to side with RTW laws. In fact, I would assume sight unseen, that any Republican politician that is opposed to RTW, probably found their position more by calculating the electoral votes of union members against the rights of the rest of their constituents, than by a consideration of principles. Sure, there may be some who actually do oppose RTW upon principle, but before accepting their word on that, I'd suggest taking a look at their other votes first, such as on Smoking Ban's, Common Core, Medicaid expansion, and sweet business/govt partnership deals like 'Aerotropolis/China Hub', etc. And then I'd ask them to take a closer look at their principles as a whole, and what they are for - more on that in a bit.

But there is a reason why RTW makes the bile rise in my throat, which a closer look at the bill itself, House Bill 1770 should make clear:
290.591. 1. Except in instances when this section conflicts with or is preempted by federal law, no person shall be required as a condition or continuation of employment to:
(1) Become or refrain from becoming a member of a labor organization;
(2) Pay any dues, fees, assessments, or other similar charges, however denominated, of any kind or amount to a labor organization; or
(3) Pay to any charity or other third party any amount equivalent to, or on a pro rata basis, any dues, fees, assessments, or other charges required of members of a labor organization, in lieu of the payments listed under subdivision (2) of this subsection.
2. Any agreement, understanding, or practice, written or oral, implied or expressed, between any labor organization and employer that violates the rights of employees as guaranteed under this section is declared to be unlawful, null and void, and of no legal effect.
Now take a look at this portion of the first line again:
"...no person as a condition or continuation of employment can be required to..."
, 'can be required', by who? By the person who is offering them a position of employment in their business, the employer, that's who. Why would they not have the right to make an offer of employment on terms which they judged best for their business? Notice that the bill doesn't say that:
'No business owner shall be compelled to offer as a condition or continuation of employment, a requirement that'
Now let me ask you this: What of a business owner, who, for reasons that would be entirely unfathomable to me, wants his business to be a 'Union Shop'?

Does he not have the right to operate his business as he sees fit? Do you see the problem? Why would we want a law further restricting the liberty of employers? It not only infringes upon the rights of the business owner, but does even further damage to the already battered shell of Property Rights (without which no Rights can have any substance) that are still remaining to us.

If you ask the legislators why they've written their bill this way, there response will probably be that federal law compels them to, and those few who aren't just repeating the talking points that'll keep the union vote happy, would likely direct your attention back to the first line in their RTW Bill:
290.591. 1. Except in instances when this section conflicts with or is preempted by federal law
, and the 'preempted by federal law' refers to lines such as these, from the NLRB which forbids businesses:
"(a)(2) "to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it"
, and,
"(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159 (a) of this title." "
So on one side we have the union promoting legislation already on the books, which forbids business owners from using their own judgment and forces them to 'bargain' with unions, while on the other 'Pro-Worker!' side we have 'Right to Work' laws, which forbids business owners from using their own judgment and forces them to not have a full union shop. The result is that The Law is being used to prevent a business owner from having any say in some of the most critical decisions which their businesses face on a daily basis.

Heads you lose. Tails you lose. Wanna flip again?

Do you know what the worst part is? This is the best and most 'Rights' promoting option available to us today, and it is so because of laws such as the 'Wagner Act' (which created the National Labor Relations Board) that 'Progressive Democrats' placed on the books 70+ years ago during FDR's terms, and which the GOP 'fixed' a few years afterwards with 'Taft-Hartley' when they regained power.

What the Briton said of the Romans: "They make a desert and call it peace", might be said of our bi-partisan govt: "They eliminate an employers rights, and call it a Right To Work.".

How'd we get here? The easy way, of course.
Because our laws have already been corrupted, any new laws must make allowances for that corruption, in order to try and make... ehm, progress. How did we get here? By allowing Pro-Regressives to pass off a position that was actually pro-regress, as 'progress', and because the GOP didn't stand for Principle, but ran on poll tested tactics (as they are still doing today), they missed out on the fact that FDR's position wasn't just a modification of the business to employee relationship, but an elimination of the Right to there even being such a thing. But of course the original spin-meister, FDR, dressed it up a bit nicer than that, as he said of the Wagner Act on July 5, 1935:
“A better relationship between labor and management is the high purpose of this Act. By assuring the employees the right of collective bargaining it fosters the development of the employment contract on a sound and equitable basis. By providing an orderly procedure for determining who is entitled to represent the employees, it aims to remove one of the chief causes of wasteful economic strife. By preventing practices which tend to destroy the independence of labor, it seeks, for every worker within its scope, that freedom of choice and action which is justly his.”
Understand, the Supreme Court had already struck down FDR's previous attempt at legislating such a 'Labor Relations Board', so FDR did then, what today's President Obama recently did: he intimidated the court. FDR threatened to pack the court with new appointees to get his way, and the conservative court, then under Hughes, as in our day under Roberts, caved to executive intimidation and approved it, a tactic forever known as the 'Switch in time that saved nine'. However, in a previous case on nearly identical legislation, the court struck it down, saying that setting up such labor relations boards was:
"...The effect, in respect of wages and hours, is to subject the dissentient minority, either of producers or miners or both, to the will of the stated majority, since, by refusing to submit, the minority at once incurs the hazard of enforcement of the drastic compulsory provisions of the act to which we have referred. To "accept," in these circumstances, is not to exercise a choice, but to surrender to force.

The power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form, for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business. ..."
No matter what subsequent Supreme Court decisions ruled, that is still at the heart of Union power as imposed upon us today, and my natural urge is to do the only thing that seems left to do, and that's back anything, such as RTW.

But the real problem here is the Right's seemingly instinctive resignation to half-measures and our toleration of 'what else can we do?' approaches.

It is not only easy to make the 'pragmatic' case for such laws and actions, but in some sense it is necessary because once pragmatism has been allowed in, principle is necessarily forced out of the door, and it has been - so what else can you do? There is something more we can do, and it doesn't mean rejecting the distasteful steps we do have to take right now, but it does require insisting that those steps be part of a more clearly defined destination - which I'll come back to shortly.

Is that not the same refrain we hear from establishment republicans against ObamaCare today?

Well it's nothing new, in fact it is nearly as old as the modern left and has defined the GOP response to every Democrat gain since FDR, even when they themselves are the party in power! The Taft-Hartley Act in 1947, was the perpetual short term half measure that the GOP proposed because it didn't have the guts to toss out the Wagner Act altogether. Eyes forever on the polls, even once they've secured the power to do what they campaigned on doing, they sought only to weaken Union power, and even that was only effected on the surface. An adviser to the Senators proposing Taft-Hartley warned them against such half-hearted 'what else can we do' measures, warning that if such 'Right To Work' measures were passed, instead of repealing the Wagner Act outright:
" ...Greaves was closely involved in the issue. At the request of Sen. Robert A. Taft in 1946, he helped draft a precursor to Taft-Hartley. According to Greaves, union activity had caused the Wagner Act to fall out of favor with the public. Taft wanted an ameliorative bill that would win enough votes to override a veto by President Harry Truman — in another words, a watered-down bill. Then, after the Republicans won the White House and Congress in 1948, they would pass a better law.
Greaves “opposed this thinking on the basis that it would be better not to have any new law at that time[, contending] that a successful veto of a better law would result in a growing public pressure for the repeal of the Wagner Act and the election of the party that espoused such a move. The senator was not willing to go that far.” Greaves feared that “if the senator’s plan were successful, the public would be persuaded that the then evident economic distress flowing from union activity had been remedied and the next tide of public opinion might well be in the other direction.”
Taft disagreed, and Greaves left the Senate committee. “Freedom … lost,” Greaves wrote looking back, because once Taft-Hartley passed, the pressure on the Wagner Act disappeared...
[Emphasis mine]
Today, nearly 70 years later, we are still taking such palatable, ultimately self defeating measures. The Right is talked into proposing measures which don't repeal the legislative acts which are the real cause of the problem, and always with the promise of "after the next election, we'll 'pass a better law'". The fact is that Taft-Hartley didn't reduce the unions power, but only consolidated it, as this, from the introduction to a book of economist Henry Hazlitt's essays during that time, points out:
"... Taft-Hartley emerged as the conservative counterweight to the Wagner regime, the product of a Republican-dominated 80th Congress elected in 1946 in response to post-war inflation, excessive government controls, and historic levels of labor strife. Passed by an alliance of anti-labor Republicans and Southern Democrats, Taft-Hartley did not roll back, so much as circumscribe, New Deal labor law. It retained the process of collective bargaining supervised by the National Labor Relations Board, but outlawed wildcat strikes, secondary boycotts, and the closed shop. It prohibited both management and labor from engaging in “practices which [sic] jeopardize the public health, safety, or interest” and required anti-communist affidavits from all unionists. Moreover, it authorized the president to intervene in strikes that threatened national security and enabled individual states to pass “right-to-work” laws outlawing exclusive union shops...."
IOW it had given monopoly control over unionized workers to one union in a shop, whether or not the owner of that shop wanted them there, or even whether any other employee might have preferred another union to represent them. Republicans are heading the very same road with ObamaCare and Medicaid Expansion, such as Missouri sleazeball State Sen. Ryan Silvey has proposed doing, and no doubt 70 years from now our grand-kids will be proposing some sort of 'Right To Prescriptions' laws because of it.

This relentless GOP retreat of 'do what we can' half-measures, with no wider strategy having been defined or committed to, not only does not succeed, but they cannot succeed. While such short term efforts may be necessary, in the short term, to adopt them as our overall strategy, as the GOP has been doing for decades, is suicide.

This isn't about Business vs Labor, but about the inconvenient Rights of both - inconvenient to the established powers that be who just want to tend their power gardens, grooming them sometimes to appeal to the Left, and sometimes to the Right, but always producing a bumper crop of incumbents for the benefit of each. Also keep in mind that politically influential business 'interests' were very much behind the 'Wagner Act' to begin with, because they thought it'd make it easier on their businesses by helping to promote cooler headed unions over the real radicals ('Big Business' is almost always as opposed to a Free Market as the radical Left is)... and they've continued to split the difference between Individual Rights and their own interests ever since.

How do we get a right to our Rights back?
RTW does curb the power of unions. But. But it also increases the power of Govt. RTW as written, reduces the grip Unions have on workers, but it does so by increasing Govt's power over business owners, which in the end, means over all of us. It's hard not to hear Gandalf reading in the background: 'One Ring to rule them all...', right?

So where does that leave us?

In about the same place that Richard Nixon & Teddy Kennedy's HMO bill left health care back in 1973. It leaves us in that place where every attempt to improve the situation, necessarily restricts our liberty even further, compounds our problems, and hastens the time where an ObamaCare-type solution will be proposed to 'fix' it.

So what do you do when placed in a position of choosing between two evils?


First, recognize that sometimes acting 'on principle' can be unprincipled behavior. Principles are an aid to thinking, not a substitute for it, and used imprudently, can do more harm than good. When you find yourself in a place where no good choices are possible, that doesn't mean that you make no choice at all, it means that you widen your perspective and clarify your goals.

Choose instead, where there is a choice to be made, that which causes the least damage to your liberty, and the most damage to the forces arrayed against you - and do NOT accept that as your only or final option. The confused morals of our current laws makes measures such as RTW necessary, but we can and must do more to make it only an inconvenient step, rather than a destination of moral compromise.

Widen your perspective - as the situation stands now, our govt has already asserted its right to compel business owners to do what it wants... 'for the greater good'; it has done so in the 'Wagner Act', and 'Taft-Hartley' and Medicaid and so many other laws since, all the way up to ObamaCare, that this... this is just one more lash in a thousand stripes across our backs. So, sad to say, it is not unreasonable to see that adding yet another layer of restrictions upon us, is like painting an '11' on the volume knob - a distinction which makes no further difference. More to the point, for those thinking that not voting for RTW will somehow leave business owners free to conduct their business without govt interference - that's damn near delusional. Isn't it? So please, remember how laughable that argument is if someone makes it to you.

On the other hand, RTW does limit unions access to our fellows, it will limit the power of unions over the workforce, it will reduce their power in our society, and so on that basis, I do see a more solid strike for liberty being made by voting for RTW, than the strike which RTW itself makes against our liberty.

But having made that painful calculus, the only way to prevent it from becoming a choice of lesser evils, is to NOT accept that as your only or final option. You must have a long term goal, a long term strategy to get the Right to our Rights back. We've got to be looking to strike at the real political root, and that isn't unions, but those acts which gave them power over us, such as the 'Wagner Act' and 'Taft-Hartley'. And measures such as this, a 'States Repeal Act', which I'll dig much deeper into in later posts, is one way to enable RTW states to do just that, and help get back the right to our Rights.

For myself, keeping in mind that Politics is downstream of Culture, and that Culture is downstream of the arena of Ideas, I'm keeping my efforts focused there. For the Culture to come around to the idea that restricting liberty doesn't increase it, and to understand why that is, then the ideas which make liberty a conclusion, rather than a starting point, need to be aired, and discussed, and understood. And that's what I attempt to do with this blog. Air the ideas which we as a culture must breathe in, for Liberty to regrow its roots within us. As those ideas become more commonly understood, then our culture will tear out  abominations such as the 'Wagner Act', and the 'Affordable Care Act', root and branch.

So I will support RTW, as one distasteful step in a long journey, while keeping my eyes on the real goal, one which results in real liberty for all.