People v. State

Greg Gauthier has a thoughtful and thought-provoking post up at the Daily Anarchist titled “Who’s Your Daddy?”, wherein he questions the propensity to quote the Founding Fathers in support of this, that, and the other, and suggests it’s symptomatic of a juvenile lack of confidence in our own powers of intellect and judgment. As someone who’s quoted more than his fair share of Thomas Jefferson around here, I see his point, but have a slightly different take on the matter.

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“Among human be­ings, the judge whose words seal the fate of a man fur­thest into eter­nity is not he who merely pro­nounces the ver­dict of the law, but he, who­ever he may be, who, from a love of truth, and un­prej­u­diced by any cus­tom or en­act­ment of men, ut­ters a true opin­ion or sen­tence con­cern­ing him. He it is that sen­tences him. Who­ever can dis­cern truth has re­ceived his com­mis­sion from a higher source than the chief­est jus­tice in the world who can dis­cern only law. He finds him­self con­sti­tuted judge of the judge. Strange that it should be nec­es­sary to state such sim­ple truths! [¶23]

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I wouldn’t write this blog if part of me didn’t love the law.

But one of the greatest lawyers who’ve ever lived, Lysander Spooner, never “practiced” much law. One of the greatest lawyers alive today, Tony Serra, confessed to his biographer that he regarded “going into law” as for him “a fall from grace.”

I suspect being a lawyer is like being a priest. The priest can repudiate the Church. He can be excommunicated by the Church. But he’s still a priest.

(H/T Matt Brown)

The Law According to the Somalis, by Davi Barker at the Daily Anarchist

Portland police Lt. Robert King said.

The official demonization of “anarchists” by State propagandizers continues on apace, in this instance by an agent of an “agency”-without-principals which intends to violently evict Occupy protesters from Portland parks this weekend. Meanwhile, a real-life “anarch” (leader of leaderlessness), Wendy McElroy, explores, at the Daily Anarchist, what an anarchist system of justice might look like, and in reply to a comment on her post writes:

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I am by no means a Nietzsche scholar or fan boy, but in light of what he had to say about the State I think it’s safe to say that those inclined to blame him for the Nazis are grossly mistaken. In any event, I want to distance myself from any vulgar and probably mistaken interpretation of his denigration of the “superfluous” and the “all-too-many” that I approvingly quoted along with his damnation of the State.

Albert Jay Nock notes what I think is the relevant distinction:

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I spent the time I was going to use writing this post instead re-reading Henry David Thoreau’s A Plea for Captain John Brown. Here’s an excerpt that’s particularly interesting to me as a lawyer and that explains the nature of Thoreau’s “Plea,” but read the whole thing and be reminded that great heroes have lived and died in America:

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. . . appears as the vital Idea of which the “consent of the governed” is a pale and passive imitation, and as what distinguishes and divides a People from a State. A few posts ago I quoted Nietzsche:

Where there are still peoples, the state is not understood, and is hated as the evil eye, and as sin against laws and customs.

I hold up as support for Nietzsche’s observation the Great Law of Peace of the Iroquois Confederacy and the attitude of the Iroquois to the authoritarian governments brought over by the British colonists, and recommend Charles Mann’s 2005 op-ed in the New York Times on this subject. In his book 1491: New Revelations of the Americas Before Columbus, Mann wrote:

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My comment responding to the above phrase in a comment from la Rana at IOZ’s blog is probably the concisest expression yet of my “political” ideals:

That’s a thin reed indeed, and in fact I see no separation whatsoever. Anarchy prevails betwixt the governments of the world. What is an individual laying claim to a house and a yard but a little government? My prescription for what ails the world: balkanization (all the way down to that schlub in his castle) and confederation mediated by Georgism.

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reading this:

Smith, who had been released from custody in 2006 pending the government’s appeal of her case, is expected to return to prison before Christmas, her attorney said.

. . .

Lawrence Daniels, a supervising deputy attorney general who argued the case for restoring Smith’s conviction, said he couldn’t answer questions about the case until he had fully reviewed the 18-page decision.

Smith’s attorney, Michael J. Brennan, said he would file a clemency petition with the state government but that the chances of it being granted were “extremely slim.”

“The attorney general’s office has fought vigorously to reincarcerate her for years. They don’t have the authority to say, ‘Just kidding, she doesn’t have to go back to jail,’ ” Brennan said.

. . .

made me think of this:

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(The title of this post is borrowed from the Wobblies.)

A comment by Ryan from Absurd Results on this post about the Georgist “Single Tax” and Thomas Jefferson’s “Ward System” gave me the opportunity to once again formulate, summarize, and clarify my political wish list. Ryan wrote:

As for Georgism, I have to admit, I find it intriguing—even more so when combined with Jefferson’s ward system. Actually, I think the ward system (which sounds a lot like Michael Rozeff’s panarchy) would be essential for a single tax regime, for it would more likely keep closed the door to statism by making the wards compete for citizens.

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“Mayor Gaynor astonished the whole of New York when he pointed out to a correspondent who had been complaining about the inefficiency of the police, that any citizen has the right to arrest a malefactor and bring him before a magistrate. “The law of England and of this country,” he wrote, “has been very careful to confer no more right in that respect upon policemen and constables than it confers on every citizen.” State exercise of that right through a police force had gone on so steadily that not only were citizens indisposed to exercise it, but probably not one in ten thousand knew he had it.” — Albert Jay Nock, Our Enemy, the State (1935)

Seattle crime-fighting “superhero” Phoenix Jones knows he has it, and more power to him.

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It would never in a million years occur to me to stand on a street corner and hold a sign petitioning the State to “Tax the Wealthy” or “Tax the Bankers,” for a couple reasons:

1. The Bankers won’t be taxed unless they want to be taxed. They own the fucking State.

2. Although it’s certainly more evil to steal from the poor than from the rich, every dime in the hands of the State, whether that dime comes from the rich or from the poor, is a dime in the hands of our Enemy.

The local news story on our very own “Occupy Wall Street” protest last Saturday in South Bend included a photo of two protesters, one holding a sign saying “Tax the Bankers” and the other holding a sign saying “Tax the Wealth.” Here’s my take on that, from this comment on a post at a relatively new group blog by academics titled “Bleeding Heart Libertarians”:

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Norm Pattis has a very interesting post up today about Lysander Spooner and his Essay on the Trial by Jury. (Norm, a prominent Connecticut trial lawyer whose recent book includes a Foreword by F. Lee Bailey and an Introduction by Gerry Spence, credits yours truly with directing his attention to Spooner. I’ve sometimes second-guessed the value and purpose of this blog. Posts about the actual practice of law or actual court decisions have been few and far between, and, on the other hand, the folks at the Center for a Stateless Society illuminate the principles of anarchism more eruditely than I. But if I’ve facilitated a little cross-pollination, bringing some anarchism to trial lawyers, maybe some Georgism to anarchists, and maybe even a little religion to anarchists and trial lawyers, maybe this blog hasn’t been a complete waste of time.)

Norm’s post concludes:

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Thus wrote Justice Robert Jackson almost 70 years ago, as quoted in a NYT op-ed by Kent Greenfield which points out that “Constitution Day is probably unconstitutional.”

What is it that I find admirable and worthy of emulation in the Great Law of Peace of the Iroquois Confederacy? Pretty much the same things I find admirable and worthy of emulation in Aldous Huxley’s vision of a just society:

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Via Wikipedia, I’ve been reading Exemplar of Liberty: Native America and the Evolution of Democracy, by Donald Grinde and Bruce Johansen. The thesis of the book is that the Founders’ contact with Native Americans and their forms of government inspired Revolutionary fervor and ultimately influenced the U.S. Constitution. Personally, I believe, with Albert Jay Nock, that, rhetoric aside, subsequent history (including the genocide of Native Americans) demonstrates that the prospects for Old World-style exploitation in the New World, and the wresting of the mechanisms for such exploitation from British hands into American hands, was a far greater motivator for the Founders and the U.S. Constitution than the libertarian example of their indigenous neighbors. Nevertheless, the Native American exemplar remains as a reminder of what America could have been, and as an indictment of what America has become.

From “The Fundamentals of Voluntaryism” by Carl Watner, via Wendy McElroy:

Common sense and reason tell us that nothing can be right by legislative enactment if it is not already right by nature. Epictetus, the Stoic, urged men to defy tryants in such a way as to cast doubt on the necessity of government itself. “If the government directed them to do something that their reason opposed, they were to defy the government. If it told them to do what their reason would have told them to do anyway, they did not need a government.” As Lysander Spooner pointed out, “all legislation is an absurdity, a usurpation, and a crime.” Just as we do not require a State to dictate what is right or wrong in growing food, manufacturing textiles, or in steel-making, we do not need a government to dictate standards and procedures in any field of endeavor. “In spite of the legislature, the snow will fall when the sun is in Capricorn, and the flowers will bloom when it is in Cancer.”

. . .

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I don’t mean to get all religious on all y’all. My old blog explicitly tied religion of a certain stripe to libertarianism, and this new blog was meant to drop the religious emphasis of that blog in favor of a focus on “the philosophy and practice of law and liberty.” But I still regard “religion,” properly understood, as inextricably bound up with the quest for liberty, in the soul and in society.

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To me, the fundamental truths of anarchism have become blindingly self-evident: The politicians and lawyers who make, interpret and enforce “the laws” are, on average and as a class, less honorable, wise and just than are people in general. The State is designed, not to protect and serve, but to steal from the poor and give to the rich. The State has no moral authority. There is no law other than the Laws of Nature and of Nature’s God. The State is in its essence an usurper and an imposter. We are morally obligated to obey only those of its “laws” which happen to plagiarize the Laws of Nature and of Nature’s God, and are morally obligated to disobey those of its “laws” which violate the Laws of Nature and of Nature’s God.

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[with apologies to Benjamin Tucker]

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Debbie Harbeson in the July 7th New Albany News & Tribune:

Let’s say you — or someone you care about — had a few drinks one night and, knowing it would not be a good idea to drive, decided to let a sober person take the wheel.

Did you realize you can still be charged with a criminal offense? It’s true. The Indiana Supreme Court just affirmed this in Moore v. State.

. . .

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— reversing the Indiana Court of Appeals to reinstate a criminal conviction for no good reason (as they also recently did in Barnes and Coleman).

The facts in Brenda Moore v. State were not in dispute:

The defendant had consumed two tall cans of beer at her sister’s house on the evening of December 5, 2008. A friend of the defendant’s brother asked for a ride to visit a friend. The defendant explained to him that she could not drive because she had been drinking but that he could drive her car if he had a license. The brother’s friend then drove the defendant’s car with the defendant riding as a front seat passenger. When an Indianapolis Metropolitan Police Officer pulled over the car because the license plate light was not working, the officer determined that the driver did not have a valid driver’s license and that the defendant could not operate the vehicle because she was intoxicated.

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How is it that the supposed anarchist and proprietor of lysanderspooner.org has come to write this drivel (comments closed) at the Volokh Conspiracy about what he calls “The Dangerous Effort to Delegitimate Supreme Court Justices” (emphasis added) — and in particular, Justices Thomas, Scalia, and Alito?

Has Barnett read the recent USA Today retrospective which “lays bare the complete disdain Justice Thomas has shown for those accused of and convicted of crimes” during his 20 years on the SCOTUS?

I can only assume that he has, and that the former prosecutor shares Thomas’ disdain, as it would be consistent with Barnett’s apparent disdain for the innocent victims of War.

For my part, I prefer to highlight as edifying stories like this one about the Wisconsin Supreme Court, this one about the Michigan Supreme Court, this one about the Indiana Supreme Court, and yes, the USA Today story about Justice Thomas referenced above as well as this recent NYT story, which Barnett characterizes as “advancing another empty charge against Justice Thomas.”

Lysander Spooner would be so very proud.

Recently I described myself as a “Christian Deist” in a comment on this interesting blog, written by a lawyer who was denied admission to the Indiana bar by the Indiana Supreme Court apparently because of a legal philosophy similar to my own and his purported resistance to and criticism of the psychological evaluation of his sanity required by the Board of Bar Examiners because of the fact that years before his application for admission he had been arrested several times for protesting at abortion clinics and had refused to pay an unconstitutional civil judgment for attorney fees against him related to such protests. (Norm Pattis writes today regarding the disbarment of F. Lee Bailey and the fact that judges rather than juries decide such questions: “Deciding whether an aggressive, and often controversial, lawyer should remain at the bar is not a decision I would trust to a judge, ever.”)

What I mean by describing myself as a Christian Deist is illuminated by the following two articles, my discovery of which online was prompted by my discovery in a bookstore yesterday of Tolstoy’s The Gospel in Brief:

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The First Leftist:

The first Leftists were a group of newly elected representatives to the National Constituent Assembly at the beginning of the French Revolution in 1789. They were labeled “Leftists” merely because they happened to sit on the left side in the French Assembly.

The legislators who sat on the right side were referred to as the Party of the Right, or Rightists. The Rightists or “reactionaries” stood for a highly centralized national government, special laws and privileges for unions and various other groups and classes, government economic monopolies in various necessities of life, and a continuation of government controls over prices, production, and distribution.

. . .

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Now, I have no special reason for going out of my way to insult by quoting as I have above Scott Greenfield (I still like the guy), other than that in his post today at Simple Justice from which I’ve quoted he appears to have gone out of his way to insult and misrepresent all anarchists (and reluctant anarchists) of good will everywhere.

Anarchy is not chaos. It’s “rulerlessness.” It’s not something unheard of in the modern world. In fact, it’s the prevailing condition of international relations between so-called “sovereign” states (despite the United States’ longstanding propensity to act as if it’s the world’s ruler). It’s the principle behind the vaunted “balance of powers” supposedly built into the U.S. Constitution (though this principle is itself unfortunately “balanced” in the Constitution by other elements aiming towards the concentration of power).

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David Gross at The Picket Line:

As I mentioned yesterday, a while back I tried to flesh out a variety of political philosophy that I whimsically dubbed “topianism.”

I meant the name to highlight the distinction between it and utopian political philosophies (meaning, most all of the rest of them, including the mainstream ones that pass for conventional wisdom) — that is to say that it’s not aiming
at organizing society in some ideal way, but in understanding and navigating society as it is in the here-and-now (not in the outopos where it will never be, or the eutopos where we might ideally project it to be, but in this topos right here where we’re standing). I’m not crazy about the name “topianism,” but I need some sort of tag to attach to the idea while I look for a better one.

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Despite writing about jury nullification yesterday, I forgot that yesterday, January 19th, was also the birthday of Lysander Spooner, the patron saint of jury nullification and this blog. I want to take this auspicious occasion to make a couple observations:

First, I want to acknowledge that I’ve perhaps been too harsh in my implicit criticism of Julian Heicklen for planning to represent himself in a criminal case charging him with jury tampering for allegedly distributing pamphlets about jury nullification outside a federal courthouse. There may be some method to his madness. He’s stated that he plans to represent himself “because I can and will say and do things that could disbar any attorney.” But by that he may “just” mean what he meant when he later explained:

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In his post about the Rev. Martin Luther King, Jr., titled Because We’re All In It Together, Jeff Gamso quotes an excerpt from John Steinbeck’s The Grapes of Wrath, in which Tom Joad is talking with his mother:

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