For some months now this blog has been “resting.” During this time I’ve instead probably spent as much time and energy tweeting as I ever did blogging, though in the last couple weeks I’ve been resting from Twitter too.
Last week I had the unusual experience of being cross-examined at length by the State on the content of many of my blog posts here, in the course of a post-conviction proceeding. Although this line of questioning was objected to on grounds of relevance, it was not unexpected, and the State justified its inquisition on the grounds that my “credibility” was at issue. It was gratifying to know that at least one person was still reading this blog. And it would not surprise me if in the near future other authorities take an interest as well, as a result of this prosecutor’s interest. I think I explained myself, for the record, as well as could be expected in that format and environment, and as well as Heresy is ever able to justify itself to Orthodoxy. Nevertheless, this is as good a time and opportunity as any to summarize the views I’ve expressed here over the last few years, which have evolved some but not much since the last time I posted.
I was questioned about the former tag-line of this blog: “fairly undermining public confidence in the administration of justice.” A number of months ago I replaced that with “[There is just nothing wrong with telling the American people the truth,” which is a quote from Allen v. United States. I did so for no particular reason other than that the latter quote was also the tag-line for my 1999 student article in the Wisconsin Law Review, and I view my writing here as of one piece with my writing there. I was asked if I have “public confidence in the administration of justice.” I answered “No.” Here are a few pertinent quotes:
Thomas Jefferson: “Free government is founded in jealousy, not confidence. It is jealousy and not confidence which prescribes limited constitutions, to bind those we are obliged to trust with power. . . . In questions of power, then, let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitutions.”
James Madison: “The nation which reposes on the pillow of political confidence will sooner or later end its political existence in a deadly lethargy.”
John Adams: “There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.”
I was asked by the State about my view that judges should be defrocked of their black robes. I couldn’t have put it better than the poster boy for the State himself, Vincent Bugliosi:
The American people have an understandably negative view of politicians, public opinion polls show, and an equally negative view of lawyers. Conventional logic would seem to dictate that since a judge is normally both a politician and a lawyer, judges would be perceived by the public as being lower than whale waste. But on the contrary, the mere investiture of a twenty-five-dollar black cotton robe elevates the denigrated lawyer-politician to a position of considerable honor and respect in our society, as if the garment itself miraculously imbues the person with qualities not previously possessed. . . .
I was asked about my attitude toward cops, specifically with reference to these lines in my About page: “I believe there is such a thing as a good judge and a good cop, because I’ve met a few of them. The problem is that even the good judge and the good cop are constrained to apply and enforce evil laws to the detriment of their fellow human beings.” The State in its questioning laid particular stress on my use of the word “evil” in the phrase “evil laws.” But of course, as I acknowledge also in my About page, not all laws are evil. Rather, “A law is only as legitimate as it is just.”
I pointed out in my response to the State’s question that one of my oldest and best friends is a cop. I’m reminded of a saying from my days in the military: “You don’t have to respect the man, but you do have to respect the uniform.” These days I invert that saying: I may not respect the job, but I respect some of the people who do that job. No one should join the military, because a person who does so is signing on to do whatever goddamned thing the State tells him to. I’m constrained to say, for a very similar reason, that no one should be a cop, a prosecutor, or a judge in the employ of the State. Therefore, I’m also constrained to say that these professions are not in themselves honorable. Certainly no one deserves honor just because they do these jobs. Certainly being a waitress is in itself more honorable than being the President of the United States or a Justice on the United States Supreme Court. Nevertheless, I’d of course prefer that those jobs be done by relatively honorable people. Furthermore, as someone who in the past “served his country,” I refrain from judging personally people who do these jobs as honorably as they can, lest I be judged. And I do not pretend even now to live a pure life untouched by any complicity with the State. But this man will spend the rest of his life in prison for doing good. No one who helped put him there or helps keep him there has any excuse, just as I am responsible for whatever good or evil I’ve done or am doing in the world.
I was asked if I think there should be firemen. I do in fact have ideas about how society should be organized. Specifically, I’m partial to Thomas Jefferson’s Ward System, Henry George’s Single Tax, and Lysander Spooner’s Trial by Jury. Incidentally, all three of these notions have deep roots in American culture and history. There’d be room for firemen, and maybe even for cops, in such a scheme. Following Albert Jay Nock and J.R.R. Tolkien, I distinguish between government and the State. I’d say with Isabel Paterson:
The essence of self-government consists in keeping promises . . . .
Government by force is a contradiction in terms and an impossibility in physics. Force is what is governed. Government originates in the moral faculty. . . .
Government is a marginal requirement, necessary only in so far as the individual inhibitory faculty is not exercised according to agreement and natural right (equal liberty). Beyond that differential, government is an enthronement of paralysis and death. . . .
Yet it must be borne in mind that the constituent element of government is not force; it is the moral faculty which decides and devises the check by which force must recoil on itself. And the moral faculty is in the individual.
But this “three-point program” is really secondary for me, and I have no hope whatsoever of seeing it even begin to be put into practice during my lifetime. I do not waste my breath “advocating” this program. It’s more of a framework for understanding by comparison the criminal nature of the State. Primary, rather, are the three interrelated moral and political principles on which this utopian program is based: No Authority, Presumption of Innocence, and Distribution of Power. The first two are especially primary, because they originate and reside in the individual, and, in contrast to the “three-point program,” can be lived right here and now, for their own sake.
Tony Serra’s thoughts on the deep moral and political dimensions of the Presumption of Innocence is described here.
The State palpably felt as if it just got me to admit the earth was flat when it got me to admit that I agree with Lysander Spooner that the Constitution is of “No Authority.” It could read all about it on this site dedicated to Spooner maintained by a Georgetown law prof and Volokh Conspiracy blogger. I pointed out to the State that Spooner in recent years had been cited by Scalia, Thomas and Alito. I could have also pointed out that less than a year ago another Georgetown law prof wrote an op-ed in the NYT titled “Let’s Give Up on the Constitution.”
At some point during the inquisition I referred to Nock’s Our Enemy, the State as my political or philosophical bible. But this was more in the way of citing my source for my understanding of the origin and nature of the State, my distinction between government and the State, and my Jeffersonian Georgism. If I had to pick one single work that summed up what I regard as the summit of the personal, the political, and the religious, it would be Ernst Juenger’s The Forest Passage. A substantial excerpt is here. The first complete English translation just became available from Telos Press yesterday.
Along with Spooner, Nock, and Juenger, I also singled out Thoreau as an inspiration under cross-examination, noting that the latter last I heard is still taught to public school kids. A couple days after the inquisition I noted somebody stopped by an old post here which consisted entirely of an excerpt from Thoreau’s Slavery in Massachusetts (1854). In getting at what I mean by No Authority and in concluding this summary, it might be worthwhile to quote again the first couple paragraphs of that excerpt:
The law will never make men free; it is men who have got to make the law free. They are the lovers of law and order who observe the law when the government breaks it.
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!