much as I do not like the deconstructionist approach to these exchanges, here goes:

i've gotten used to it, lol.

Imagine it is 1855 and you live in Ohio. A fugative slave comes to your door and asks for food, water and shelter. The law at the time would have compelled you to turn him over to his enslaver or the state. This is one example of a law which should not be obeyed; in fact obeying the Fugative Slave Law was immoral. Take another law like the prohibition against murder: one could obey this law and still be moral. The only rules I must obey are those related the prohibition of initiating force or fraud embodied in the contemporary non-aggression principle.

fair enough. But this is one law, a law is immoral on face; it doesn't make the whole government, nor the Constitution, illegitimate. I don't think there's a qualm over laws that are immoral on face -- sure, they shouldn't be obeyed. But that's a specific law; does this specific law make the whole structure immoral and illegitimate?

I propose that as soveriegn individuals all humans have the right to explicitly contract all services including security and production of law.

what's the consequence of that? The consequence would seem to be a legal anarchy, with more trouble than it's worth. And, is such an idea of contracting all services practical or plausible?

I am rather fond of the document and keep a copy on my desk and next to my bed. There are problems with things such as eminent domain (land theft) and its tacit endorsal of slavery (importation could not be banned until 1808). I hold the Bill of Rights as an important partial enumeration of a human's rights. The US Constitution, strictly constructed by limiting Congress's authority to Article I sec VIII seems reasonable. The contemporary interpretation illustrates the failure of its ability to limit state power; increasingly, everything is a federal issue.

I'm fond of it too:) Regarding slavery and other such problems: i agree, they were bad. But, it was a compromise: the other structure was failing (or had failed). A new one was needed, so it was built. As for the "contemporary interpretation": i agree, it's flawed; but, i don't think it's the document, but the people who interpret it, who are the problem. Also, regarding a Bill of Rights (among other things), here's what Hamilton wrote in Federalist 84 (not wanting to get too off topic):

Certain General and Miscellaneous Objections to the Constitution Considered and Answered
Independent Journal
Wednesday, July 16, Saturday, July 26, Saturday, August 9, 1788
[Alexander Hamilton]
To the People of the State of New York:
IN THE course of the foregoing review of the Constitution, I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There, however, remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper.
The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the States are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured.
To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions.
Independent of those which relate to the structure of the government, we find the following: Article 1, section 3, clause 7 -- "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law." Section 9, of the same article, clause 2 -- "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Clause 3 -- "No bill of attainder or ex-post-facto law shall be passed." Clause 7 -- "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state." Article 3, section 2, clause 3 -- "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed." Section 3, of the same article -- "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." And clause 3, of the same section -- "The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted."
It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provision in our Constitution, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone,1 in reference to the latter, are well worthy of recital: "To bereave a man of life, [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government." And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls "the BULWARK of the British Constitution."2
Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.
To the second that is, to the pretended establishment of the common and state law by the Constitution, I answer, that they are expressly made subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself.
It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing. What signifies a declaration, that "the liberty of the press shall be inviolably preserved"? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.3 And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.
There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing.
Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: "It is improper [say the objectors] to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the States to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body." This argument, if it proves any thing, proves that there ought to be no general government whatever. For the powers which, it seems to be agreed on all hands, ought to be vested in the Union, cannot be safely intrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the State legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? Evidently from the complexion of public measures, from the public prints, from correspondences with theirrepresentatives, and with other persons who reside at the place of their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable distance from the seat of government.
It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the State governments. The executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their State representatives.
It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union.
Among the many curious objections which have appeared against the proposed Constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due to the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. The newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that "States neither lose any of their rights, nor are discharged from any of their obligations, by a change in the form of their civil government."4
The last objection of any consequence, which I at present recollect, turns upon the article of expense. If it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan.
The great bulk of the citizens of America are with reason convinced, that Union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government -- a single body being an unsafe depositary of such ample authorities. In conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which Congress, under the existing Confederation, may be composed. It is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. It is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people.
Whence is the dreaded augmentation of expense to spring? One source indicated, is the multiplication of offices under the new government. Let us examine this a little.
It is evident that the principal departments of the administration under the present government, are the same which will be required under the new. There are now a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury, consisting of three persons, a Treasurer, assistants, clerks, etc. These officers are indispensable under any system, and will suffice under the new as well as the old. As to ambassadors and other ministers and agents in foreign countries, the proposed Constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. It will be in most cases nothing more than an exchange of State for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The States individually will stand in no need of any for this purpose. What difference can it make in point of expense to pay officers of the customs appointed by the State or by the United States? There is no good reason to suppose that either the number or the salaries of the latter will be greater than those of the former.
Where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me respects the support of the judges of the United States. I do not add the President, because there is now a president of Congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the President of the United States. The support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. But upon no reasonable plan can it amount to a sum which will be an object of material consequence.
Let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. The first thing which presents itself is that a great part of the business which now keeps Congress sitting through the year will be transacted by the President. Even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the Senate, and subject to their final concurrence. Hence it is evident that a portion of the year will suffice for the session of both the Senate and the House of Representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. The extra business of treaties and appointments may give this extra occupation to the Senate. From this circumstance we may infer that, until the House of Representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future Congress.
But there is another circumstance of great importance in the view of economy. The business of the United States has hitherto occupied the State legislatures, as well as Congress. The latter has made requisitions which the former have had to provide for. Hence it has happened that the sessions of the State legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the States. More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several States amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or fifth of that number. The Congress under the proposed government will do all the business of the United States themselves, without the intervention of the State legislatures, who thenceforth will have only to attend to the affairs of their particular States, and will not have to sit in any proportion as long as they have heretofore done. This difference in the time of the sessions of the State legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system.
The result from these observations is that the sources of additional expense from the establishment of the proposed Constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the Union. PUBLIUS
1. Vide Blackstone's Commentaries, Vol. 1, p. 136.
2. Idem, Vol. 4, p. 438.
3. To show that there is a power in the Constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said that duties may be laid upon the publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declarations in the State constitutions, in favor of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the State legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, respecting the liberty of the press, will give it no greater security than it will have without them. The same invasions of it may be effected under the State constitutions which contain those declarations through the means of taxation, as under the proposed Constitution, which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, etc., as that the liberty of the press ought not to be restrained.
4. Vide Rutherford's Institutes, Vol. 2, Book II, Chapter X, Sections XIV and XV. Vide also Grotius, Book II, Chapter IX, Sections VIII and IX.

I, too, though agree that the Bill of Rights is important to rights.

It may be impractical for 300,000,000 humans to agree. I envision smaller units of organization: syndiclism.

interesting: would these be very, very small "states?" How would you go about acheiving this?

this represents the break between those of us who embrace an *explicit* social contract and those who embrace a tacit social contract.

I see. Very intersting. From the looks of it, it seems this difference leads to quite different ideas:) How significant do you believe this breakdown is, in theory and in practice?

Sure! The state is the only entity in my life which deals with me from by threatening to iniate violence if I do not obey its dictates. (although I wonder if the same is true around the house...)

thanks for the elaboration: interesting... haven't thought of it that way. I guess my comment is that there must be a *legitimate* reason for the state doing so. There are laws set up, rules enforced to keep order: I think -- in most, but not all -- cases, the state's threat or use of force is for legitimate reason. I also think it's a matter of degree: you steal money from a bank: the state comes after you. legitimate; you spit on the sidewalk and the SWAT team is sent after you: way too excessive (although if there's a law against spitting on the sidewalk, then in that sense it's "legit") But, the state keeps order, it protects rights, and it does so by force, because no other way, i don't think would do that. as for around the house... no comment.

Look at defense as a form of protection, which it is. The enterprise I work with pays a private security agency to keep an eye on things (I guess the state couldn't effect its most basic function). Private arbitration is being used more and more as state provision of law is often too sloww, expensive and fraught with uncertenty. Private protection and production of law exist today.

The question must be asked: why did the enterprise you work for pay for a private agency? Was it because the state was doing a poor job? Or was it for some other reason, such as the possibility and practicality of having the state do it directly for you? There are a lot of territories that must be looked after: the reason for having a private company might be more than (or not even) because the state did a poor job. The private security agency may protect your firm, but when a crime is thwarted, who is called? The private agency i would bet can only do so much, has only so many resources and capabilities: if the state is needed, then those actors are called in. Private production of law and protection do exist, but who sanctions it? Anyone?

All governments are predicated on tacit consent and the appeal to coersion. ***I futzed with trying to italicize your comments, but had no luck: sorry!

I'll gant you that; but i again think the degree of coercion varies from state to state; to throw them all into one pot is inaccurate. All states are "predicted" on consent and coercion, but not all states are predicated on the same amount of each; some are worse and some are better than others. Also, what's the plausibility or practicality of the alternative? We can talk all we want of how states are bad and are coercive, but is the alternative any better? Wouldn't you end up consenting and being coerced anyway? As for the "futzing": no sweat. i still can't get a handle on this outside link stuff (not to mention much of the other junk that goes with html, lol.)

Human Nature, Anarchy, and Capitalism

Liberty or Freedom is not, as the origin of the name may seem to imply, an exemption from all restraints, but rather the most effectual applications of every just restraint to all members of a free society whether they be magistrates or subjects.

Adam Ferguson (1723-1816)

Since I became persuaded of Classical Liberal (i.e. libertarian) ideas, something I have encountered frequently is the objection that these principles are unrealistic because they do not take human nature into account. Libertarianism, it seems, is based on the idea that people are intrinsically good, so that they can be trusted to treat each other well under conditions of complete freedom. Since people are not intrinsically good, they cannot be trusted with anything like complete freedom.

In 1992, when I announced my political conversion to my friends, one answer I got was the following statement, of December 1, 1992, from John Olmsted, whom I had then known for 23 years. John and his wife Eileen had helped look after my University of California group at the American University of Beirut in Lebanon, 1969-70. He is now a professor chemistry at California State University, Fullerton.

My philosophical objection to libertarian ideas is that they start from the premise that, in the absence of a political/social fabric, everything will work out for the best. It just doesn't work that way. Life in a libertarian world is, for the most part, nasty, brutish, and short. (If you don't believe that, move to...Yugoslavia, or Lebanon, or Somalia, or.... for awhile).

The starting point for meaningful political discourse, it seems to me, is Olmsted's First Law:

People are no damn good.

The second pillar of political discourse (which probably can be deduced as a corollary of the First Law) is Kissinger's Law, which I would be willing to wager that you could show, in a series of erudite footnotes, is actually Nebuchadnezzar's Law:

Might makes right.

The point is that, in the absence of a social fabric under which everyone gives up something in order to gain a common advantage, everything goes to hell. So, minimalist government guarantees that only those who lack ethical standards will thrive, because they will do anything to get ahead. Of course, the opposite extreme of maximalist government - as practiced most prominently by tin-horn third-world megalomaniacs - also causes everything to go to hell. You can trace the failure of both extremes to Olmsted's First Law and his friend Nebuchadnezzar's corollary. When the corollary becomes ascendant, the First Law guarantees a bad outcome.

In a similar vein, as recently as February 2, 1997, I had an e-mail exchange with Kees W. Bolle, who was a professor of the history of religion at UCLA until his retirement, the author of The Freedom of Man in Myth [Vanderbilt University Press, 1968], and one of the members of my wife's dissertation committee. I have great respect and liking for Kees; nevertheless, we discovered that we disagreed about politics. Kees wrote:

Now I understand why Libertarianism is spelled with a capital. I wonder how it relates to religious experience. Serious. Or for that matter to the experience of greed on a very elementary level, as a characteristic of human beings.

Of course, "Libertarian" is only spelled with a capital letter to refer to the Libertarian Party, as "Democratic" is spelled with a capital letter to refer to the Democratic Party. I spell "Classical Liberal" here with capital letters because it is the proper name of a now unfamiliar school of thought, the heritage of Adam Smith, John Stuart Mill, and others, and thus requires some emphasis. But, more substantively, Kees's objection seems to be that libertarian principles are conceivable only in the absence of an "experience of greed on a very elementary level, as a characteristic of human beings." Hence, as John said, we must take into account that "people are no damn good."

I quote John and Kees because they are intelligent, learned, informed people, but not specialists in economics or political science. I take their views therefore as representive of much educated opinion in the United States. It is they, more than the specialists, who must be answered and persuaded if the mythology of the New Deal and the welfare state is to be exploded. At the same time, their misconceptions are similar to those of recognized scholars. Thus, the Pulitzer Prize winning U.S. historian Richard Hofstadter (1916-1970) said, in The American Political Tradition (1948), speaking of the American Founders:

They thought man was a creature of rapacious self-interest, and yet they wanted him to be free--free, in essence, to contend, to engage in an umpired strife, to use property to get property. They accepted the mercantile image of life as an external battleground, and assumed the Hobbesian war of each against all.

The reference to Hobbes is, as we shall see, characteristic in this debate. Hofstadter was typical of a school of historians who rejected Jacksonian Democracy because it was anti-intellectual and shunned the rule of the "best" that had been the promise of Federalism, or even of Jeffersonianism. I had a history professor at UCLA who paradoxically contended that the Jacksonian regime was even less "democratic" than what came before, because in so popular and vulgar a government, people did not know their own true interests well enough. The implication of the quote by Hofstadter is that raging self-interest, the Hobbesian war, is really inconsistency with freedom; and the implication of all the anti-Jacksonian historians is that people are better ruled by an intellectual elite who know their "true" interests and who do not allow them too much freedom to exploit each other. Thus, as with John, "people are no damn good."

I was reminded of John and Kees's kind of objection to libertarianism through an article in The Independent Review, A Journal of Political Economy, Volume II, Number 1, Summer 1997 (published by the Independent Institute), "Wreaking Hobbes on Mankind," by Philip Coates (pp. 109-116). Coates sees the falling away from Classical Liberal principles by people like John Gray and Robert Nozick as a consequence of their taking Thomas Hobbes's view of human nature too seriously. Hobbes, indeed, is very far from believing that people are intrinsically good or that they can be trusted to treat each other well under conditions of complete freedom (the "state of nature"). For Hobbes, freedom is granted at the discretion of the Sovereign only to the extent consistent with good public order, since that was sole real purpose of government in any case, to end the war of all against all (bellum omnium contra omnes) in the state of nature, where life was always "nasty, brutish, and short" (a famous phrase, invoked by John above). Gray and Nozick, consequently, seem to have been moved by the arguments that imperfect human nature is not consistent with libertarian principles.

Philip Coates himself argues that Hobbes's view of human nature was simply falsified by events and that Gray and Nozick have failed to note the historical sequel to the context of Hobbes's work. The English Civil War, which certainly looked like a war of all against all, and motivated many to wish for strong government just to end all the trouble, gave way to peace, but a peace based, not on absolute monarchy, but on a Liberal order where, in 1689, William and Mary accepted the principle of constitutional monarchy and granted the English "Bill of Rights" (the "Claim of Rights" in Scotland). This achievement, so durable that Edmund Burke could use it as the basis of a conservative ideology, was immortally described and celebrated by John Locke in his Second Treatise of Civil Government of 1690, unintentionally laying down the foundations for the American Revolution.

Coates's argument is fine as far as it goes, but it actually was not the view that motivated John Locke or the architects of the American Revolution and the United States Constitution. The irony of the viewpoint of John Olmsted and Kees Bolle above, or of Gray and Nozick, is that the Classical Liberal order itself used to be seen as justified precisely by the very imperfections of human nature which now are thought to turn against it; for the classical thinkers were the most acutely aware of something that more recent people seem to have forgotten:

Those in government are subject to the same imperfections of human nature, the same greed, as everyone else.

Thus, in his "Farewell Address" of 1796, George Washington warned:

The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever the form of government, a real despotism. A just estimate of the love of power, and proneness to abuse it, which predominates in the human heart is sufficient to satisfy us of the truth of this proposition.

Similarly, Thomas Jefferson (Notes on Virginia, 1784) warned:

Mankind soon learn to make interested uses of every right and power which they possess, or may assume. The public money and public liberty...will soon be discovered to be sources of wealth and dominion to those who hold them; distinguished, too, by this tempting circumstance, that they are the instrument, as well as the object of acquisition.

And, in his Autobiography:

It is not enough that honest men are appointed Judges. All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence.

The fear of these men was not first of all the damage that free men could do in private life, but the great damage, the tyranny, that could be done when fallible men are given too much power through the reins of government. This principle was stated most succinctly by Lord Acton (John Emerich Edward Dalberg Acton, 1834-1902):

Power tends to corrupt, and absolute power corrupts absolutely.

Now, it is clear that John Olmsted is aware of this problem. The passage above ends with him saying, "When the corollary [might makes right] becomes ascendant, the First Law [people are no damn good] guarantees a bad outcome." This, however, only acknowledges that "absolute power corrupts absolutely" and brushes over the implications of "power tends to corrupt" in conjunction with the same "First Law." The error of this omission is then compounded by the manner in which John evidently confuses libertarian or "minimalist government" with the anarchy of Hobbes's "state of nature"--an "absence of a political/social fabric," where life becomes nasty, brutish, and short.

There are, indeed, libertarian anarchists, and it is even possible to argue that John Locke's own principles make it difficult to avoid anarchy. On the other hand, neither Locke, nor Smith, nor Washington, nor Jefferson, nor Mill, nor F.A. Hayek, nor even Ayn Rand were anarchists. To them "minimalist government" meant, indeed, government; and such a government needed to exercise maximal power but only for certain purposes, as never expressed better than by Jefferson himself, in his First Inaugural Address of 1801:

Still one thing more, fellow citizens -- a wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.

"Which shall restrain men from injuring one another," seems to rule out the chaos of "Yugoslavia, or Lebanon, or Somalia." Locke himself saw the institution of government as necessary to protect rights, especially property rights, that no one would be well able to defend in the state of nature. If Classical Liberal principles are indeed about abolishing rather than preserving the disabilities of the state of nature, with a sharp eye to the dangers of trusting too much power into the fallible, interested, greedy human hands of those in government, then the objections of John and Kees, and perhaps of Gray and Nozick, are answered. The confusion of Hofstadter is also revealed; for, far from, "assumed the Hobbesian war of each against all," the Founders saw government as the negation of anything like the Hobbesian war (which they didn't believe in anyway, since they saw the state of nature in Lockean, not Hobbesian, terms). They saw that too powerful a government would actually create a "war of all against all," by which politicians and interest groups profit from the corruption of government power. Of course, this is all very different if any of these people do not really accuse libertarianism of advocating anarchy but simply of advocating capitalism.

"Greed," after all, is a trendy buzzword to refer to profit, corporations, and the rich. A façade of concerns about human nature, etc., may really conceal implied criticisms of the free market, capital accumulation, and private property. Admitting such criticisms, however, would move the argument over to very different kinds of considerations. Is there an "invisible hand" that produces public goods out of private interests under the conditions of voluntary exchange in the free market? Or does capital exploit labor? Trendy leftist opinion has nothing but contempt for the "invisible hand," and in the same context the principle that capital exploits labor virtually has the status of a self-evident truth. On the other hand, since the fall of Communism, the failure of economic development in command-economy Third World countries, and the stagnation and high unemployment of socialist European economies, overt attacks on capitalism now sound anachronistic and foolish: They are usually only found at the fringe of leftist politics, even though the mainstream politics even of the Democratic Party still relies heavily on implicit anti-capitalist principles. The result is a great deal of confusion and cross purposes in political debate.

That is just the problem when answering accusations that libertarianism is somehow naive about human nature. The real argument is not about human nature, as we have seen (with those who hope for the "best" in government to restrain the greed of all the rest of us coming off as the naive ones), but about the nature of a market economy. The answer, however, will necessarily be similar. If the wealthy are thought to be greedy and so morally unworthy, are thought to have illegitimately acquired their wealth (through theft or exploitation), are thought to put their wealth to selfish and socially useless purposes, then it is clear that this wealth must be "redistributed" to produce more social good and create less "inequality of income." The problem with this we already see in Adam Smith [The Wealth of Nations, p. 423]:

The statesman who should attempt to direct people in what manner they ought to employ their capitals, would not only load himself with a most unnecessary attention, but assume an authority which could safely be trusted, not only to no single person, but to no council or senate whatever, and which would nowhere be so dangerous as in the hands of a man who had folly and presumption enough to fancy himself fit to exercise it.

"Could safely be trusted," is the key phrase; for it reveals that Smith's concern is the same as that of any other classical thinker about the power of government. Government not only has a more secure monopoly than Standard Oil ever had, but it secures that monopoly by the force of arms. To be free of the government's monopoly, one must leave the country. You cannot simply refuse to deal with it, or start a competing business, without men with guns (the police) showing up to force you to deal or to physically destroy the competition you represent.

When government is entrusted with the "redistribution" of wealth, no one should be surprised that the wealth straightaway is used to buy votes, to reward interest groups, to bribe constituencies, and to pay off friends. In terms of the growth of wealth and improvement of human life, these are all wasted uses. The situation is even worse when the money is borrowed or printed rather than taxed: The borrowed money must be taxed or printed eventually, while the printed money is simply stolen, by creating an artificial price inflation, from those who hold monetary assets (less likely to be the rich, whose assets are varied, than the poor and middle classes). These are all the stigmata of the greed and irresponsibility that afflicts those in power who have been given too much power, and especially a degree of power over wealth and property that is a virtual blank check for corruption.

Some people accept this corruption because they are deceived by the moralistic rhetoric that accompanies it (that the "self-interest" of the rich is replaced by the "public spirit" of the politicians); but it is more likely that the rhetoric is waved through more because people are satisfied with their share of the loot. As long as I get my "benefits" (Social Security, Medicare, etc.), then government must be doing a good job. Or, if "programs" exist to end or alleviate poverty, then we can congratulate ourselves on our own benevolence and compassion, as expressed through the "collective" action of government.

That anyone running a private pension plan the same way that Social Security is run would get arrested for fraud hardly gets mentioned in public discourse. That "anti-poverty programs" usually promote habits that perpetuate people in poverty rather than "lift" them out of it is something that occasionally gets said in public, but then the poor soul who dares to say that is usually mercilessly attacked and ridiculed by people who have never had anything to do with the creation of wealth or of jobs--but who mostly think that ending poverty simply means handing out money (or of requiring someone else to do the hiring).

The defense of capitalism, therefore, even without appeal to purely economic truths, can proceed in the same manner as the defense of limited government before the forms of economic life even became an issue. Distrust of human nature but trust in government betrays an incoherence whose bitter fruit is necessarily corruption and tyranny, however lofty and deceptive the rhetoric by which power always masks and rationalizes itself.

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Reprinted with permission.

very interesting article, again. Thanks. It's a lot to disseminate, however. How does this stuff apply to Kendall's argument? where does Kendall specifically go wrong? Also, suppose we have this anarchist society: who will arbitrate between the arbitrators; Who will enforce the contracts if the contractors don't enforce them; Who will protect people if their law agency runs roughshod over them, etc? Will other contractors or abitrators or security agencies do that work if such problems arise?

Kendall's main points appear to be as follows:

Lockean political philosophy improperly depends upon individual consent to abide by a bogus "social contract." [I agree]
Lockean political philosophy suffers from moral relativism and unjustified egalitarianism, as an inherent consequence of its reliance on individual consent. [I can't adequately summarize my position on this point in a sentence or three, but a drastic oversimplication would be: I disagree]
The Framers were not Lockean. [As he defines "Lockean," he is correct. But the Framers were not all of one mind on these issues, and many of them were not Burkean Conservatives, either. His statement that the Framers were largely opposed to a Bill of Rights, while true, is disingenous in the context in which he puts it]
The Framers Constitution should be understood from a Burkean Conservative viewpoint, where duties take precence over rights [I violently disagree: rights and duties are provably equivalent, and many of the Framers fully and deeply supported the idea that individuals have intrinsically equal inalienable rights]

My fundamental problem with Kendall's philosophy (Burkean Conservatism) is that it is fundamentally irrational, because it fideistically accepts certain premises as axiomatically true, without admitting even the most remote possibility that any its fundamental axioms might be false--not even in theory. By definition, that's not rational.

And it fails to recognize that an individual has no alternative but to take direct and plenary responsibility for deciding right and wrong. One cannot transfer this responsibility to one's society, to one's government, to one's church, to one' spiritual adviser, to one's ancestors, or to one's culture and traditions. Why not? Because the very act of deciding to delegate to some other source the power to decide right and wrong is itself a sovereign decision regarding the definition of right and wrong. God may dictate moral laws, but each believer makes himself the ultimate moral authority by deciding whether or not to accept the testimony of Allah's prophet, Mohammed, regarding what those laws are. In this sense, there is no escaping moral relativism--even for those who believe, as do I, that right and wrong (at an appropriate level of abstraction) are universal invariants that apply to everyone equally.

Bumpin' for later, lots of material, low on brew.

Lockean political philosophy suffers from moral relativism and unjustified egalitarianism, as an inherent consequence of its reliance on individual consent. [I can't adequately summarize my position on this point in a sentence or three, but a drastic oversimplication would be: I disagree]

i too am doubtful of his analysis of Lockean political philosophy; from what i've read (and it's not much) of Locke, Kendall's idea jives little.

The Framers were not Lockean. [As he defines "Lockean," he is correct. But the Framers were not all of one mind on these issues, and many of them were not Burkean Conservatives, either. His statement that the Framers were largely opposed to a Bill of Rights, while true, is disingenous in the context in which he puts it]

Did Kendall somehwere imply that the Framer's were Burkeans? And how does the context make disingenuous his statement of the Framer's opposition to a Bill of Rights?

The Framers Constitution should be understood from a Burkean Conservative viewpoint, where duties take precence over rights [I violently disagree: rights and duties are provably equivalent, and many of the Framers fully and deeply supported the idea that individuals have intrinsically equal inalienable rights]

I'm extremely ignorant of Burkean Conservatism, so I'll ask where does Kendall advocate such Burkean ideas?; and, what is wrong with duties taking precendent over rights? How are rights and duties provably equal? I would think that in order to have certain rights, duties must be fulfilled... That many Framers supported ideas of "intrinsic and equal inalienable rights" doesn't mean that rights and duties are equal; in fact, the two may not follow at all. What were these "inalienable and equal rights" the Framers believed in that would cause Kendall to be questioned?

My fundamental problem with Kendall's philosophy (Burkean Conservatism) is that it is fundamentally irrational, because it fideistically accepts certain premises as axiomatically true, without admitting even the most remote possibility that any its fundamental axioms might be false--not even in theory. By definition, that's not rational.

What are these "certain premises" accepted as true? Burkean Conservatism doesn't allow for the possibility of falsity of its axioms? To me that doesn't make much sense and is far too dogmatic than I realized. Can you elaborate more on this, please? More fundamentally, what's wrong with irrationality? Why is being rational better than being irrational, or at least why is rationality better than Burkean irrationality?

And it fails to recognize that an individual has no alternative but to take direct and plenary responsibility for deciding right and wrong. One cannot transfer this responsibility to one's society, to one's government, to one's church, to one' spiritual adviser, to one's ancestors, or to one's culture and traditions. Why not? Because the very act of deciding to delegate to some other source the power to decide right and wrong is itself a sovereign decision regarding the definition of right and wrong. God may dictate moral laws, but each believer makes himself the ultimate moral authority by deciding whether or not to accept the testimony of Allah's prophet, Mohammed, regarding what those laws are. In this sense, there is no escaping moral relativism--even for those who believe, as do I, that right and wrong (at an appropriate level of abstraction) are universal invariants that apply to everyone equally.

Why does an individual have "no alternative" but to take "direct and plenary responsibility" for deciding right and wrong? Does this idea that people have the "direct and plenary responsibility" then make government and it's laws fundamentally illegitimate? Also, is there a distinction between "moral laws" and "civil laws"; deciding between what one believes is moral or right, and rules and laws to govern a society? I don't think the act of transferring authority from an individual to a government, spiritual advisor, etc., necessarily transfers with it the personal responsibility of deciding moral right and wrong. The mundane matters over which a state exerts control are just that; in order for order and liberty to exist, it would seem that it is legitimate for a state to make rules to govern. If this moral relativism is taken to a logical conclusion, there would be no order, no liberty; nothing except chaos, for the ultimate aribter is each individual person.

If you could clarify the point of not being able to delegate responsibility to something other because that itself is a "soveriegn decision regarding... right and wrong" I would appreciate it. I don't understand how granting that power of right and wrong to some other person/group is wrong, if that person did it freely. Is it because the responsibility and power no longer reside with the individual, but with some other entity, that makes it wrong? I think that moral laws do exist independent of persons decisions to accept or reject them, but, I do agree that it is up to that person to do so; however I'm unsure of each person becoming his individual "moral authority" in that decision; i suppose that ties in with my belief that moral laws exist independent of individuals.

Human Nature, Anarchy, and Capitalism

Human Nature, Anarchy, and Capitalism

Copyright (c) 1997, 1998 Kelley L. Ross, Ph.D. All Rights Reserved