Where I got the name for this blog
One inspiration was Albert Jay Nock’s Our Enemy, the State.
Another inspiration is the basic libertarian idea that the agents-without-principals who make up the State have no more authority to violate natural rights than anyone else does, so that when State agents do what would be a crime if committed by anyone else they too act criminally. (Hence, the libertarian proposition that “taxation is theft.”) Many of them in a just world should themselves be defendants.
Today I randomly encountered online another of my inspirations for the name “People v. State,” in this comment thread on Mark Bennett’s Defending People blog. Here’s the exchange:
John Kindley says:
I prefer the definitional framework conceived by Lysander Spooner in the first chapter of his treatise The Unconstitutionality of Slavery, titled “What is Law?” Here’s a paragraph that gives some of the flavor:
Natural law, then, is the paramount law. And, being the paramount law, it is necessarily the only law: for, being applicable to every possible case that can arise touching the rights of men, any other principle or rule, that should arbitrarily be applied to those rights, would necessarily conflict with it. And, as a merely arbitrary, partial and temporary rule must, of necessity, be of less obligation than a natural, permanent, equal and universal one, the arbitrary one becomes, in reality, of no obligation at all, when the two come in collision. Consequently there is, and can be, correctly speaking, no law but natural law. There is no other principle or rule, applicable to the rights of men, that is obligatory in comparison with this, in any case whatever. And this natural law is no other than that rule of natural justice, which results either directly from men’s natural rights, or from such acquisitions as they have a natural right to make, or from such contracts as they have a natural right to enter into.
Clay S. Conrad says:
I am a big fan of Spooner. I even own (and have read) the Collected Works of Lysander Spooner.
That said, how does natural law tell us which side of the road to drive on? Shouldn’t it, however, be kept uniform? How does NatLaw tell us what penalties to attach to crimes? Why is it that it is illegal to have any sexual contact with a person who is 203 months and 27 days old, yet just fine to have all-out porn star sex with any number of them as soon as they complete their 204th month of life?
The difficult part of NatLaw, which is why it has fallen into disfavor and ridicule, is that it falls down in application. At some point, the arbitrary choices have to be made — imperfectly, of course, as they are arbitrary. Yet, somewhere, a definition has to be made, and hopefully as close to natural law as possible — even if, in application, sometimes that is not possible at all.
Randy Barnett has examined alot of these issues, in his book Restoring the Lost Constitution. If you are really interested in frustration, I highly recommend it. It is excellent, yet the realities it confronts are somewhat dismal.
Clay,
I thought your name sounded familiar, and then I realized you are the author of a book on my office bookshelf on jury nullification / independence. In fact, the reason I bought the book was because it was highly recommended as the best on the subject by Randy Barnett in a blog post at Volokh Conspiracy. No wonder you are a big fan of Spooner, as he wrote the classic book on the subject, Trial By Jury. The name of my blog, People v. State, was inspired in part by the paragraph on pages 280-281 of your book, where you discuss opening statement. For the benefit of others, here’s what you wrote there:
“Prosecuting attorneys almost always try to connect with the jury by claiming to represent ‘the people of’ the United States, or the state. One rarely used technique is for counsel to object, in front of the jury, to the prosecutor claiming to represent ‘the people.’ Objecting that the prosecutor represents the government, and that the jury represents ‘the people’ achieves several objectives — it shows the jurors that the prosecution is posturing and attempting to manipulate them, and it shows them that they have an independent role to play which the prosecution is attempting to usurp. The judge will almost never grant this objection in any case, and may well chastise the attorney bold enough to make it, but in front of an appropriate jury that posture may well cost the judge credibility as well. This technique can be reinforced by being sure to refer to the prosecutor either as the ‘prosecutor’ or as the ‘government’ throughout the trial, and never as the ’state’ or ‘the people.’”
Small world. Honored to “meet” you.
I’ve read Barnett’s book Restoring the Lost Constitution, and although the prospect for the restoration he outlines is indeed dismal given present political realities and public opinion, I found the book itself very persuasive and on the money. It makes room for the arbitrary but apparently necessary lines and definitions you refer to. If such arbitrary lines are indeed necessary, they can nevertheless be justified only by natural law and natural justice and nothing else. What is truly necessary is presumably just. Even if the State’s claims to legitimacy (e.g., on the theory of “consent of the governed”) are completely unfounded, we are not really harmed when we are prevented by the government from doing something we have no natural right to do anyway.
Speaking of small worlds, I have recently come across another professor at Georgetown (where Barnett is also a professor) whose thinking has illuminated and supplemented my Spoonerite worldview: John Hasnas. I especially found his article titled “The Depoliticization of Law” helpful to the questions presented.
Follow
