Friday, July 10, 2009

Guest Post: Townie76 and a critique of my Libertarian positions

Townie76, like Waldo, is an old friend of mine of more than 25 years, who has begun reading this blog and commenting during the past couple of months. He is a career military officer, a trained historian, a legal scholar, and a profound thinker regarding the American experiment. He's not by any means a Libertarian, as you will surely notice by the following, but I think that he represents such a voice of rationality within our currently intellectually bankrupt public discourse that I could not resist sharing his recent, lengthy response to this blog with you.

What you get is what he wrote, with minimal editorial omissions as noted in the text and two corrections of obviously mis-typed words (I was "condemning" and not "commending" DHS for the Rightwing Extremism Report, and I really think he meant to refer to the States as multiple "laboratories" rather than "lavatories" of Democracy, but considering Larry Craig, maybe not.):

While I agree in part with what you say, I also find myself in disagreement in part, but that is nothing new, as our graduate school debates were always more about agreeing to disagree.

If I was to offer a major critique of what is the underlying philosophy of your blog it would be this; you postulate a Lockeian vision for a Hobbesian world. While we should always strive for obtaining the vision which Locke set forth in Second Treatise on Government the reality the world we live in is more like the world described by Hobbs in Leviathan.

But having said that, let me at least touch on the points which we agree.

Regarding speech, I am totally in agreement with you that the right and the left use inflammatory speech, and will try to use “eliminationist” in order to paint those who disagree with them as being something akin to take your choice of words.

So why do groups or individuals, be it Glen Beck or Paul Krugman use language and rhetoric which is over the top? I wish I had an answer for this, but what I do know is it adds to the course nature of our debate. Calling for the killing of abortion doctors or homosexuals, may make someone feel good but in the end enables some to act out the words of provocateur. But restricting such speech, whether uttered by conservative, communists, liberal, socialists, or god forbid moderates is a cure worse than the illness. Likewise, our college and universities must begin to show some willingness to permit speech, which is contrary to the majority view, despite the fact it might offend someone or some group on the university campus. We must also ensure that students and faculty respect the right of those whom they disagree to speak. I would argue that good manners are something which we should insist upon.

Regulating speech and belief is impossible; for there is always someone who thinks and sees the world differently from society in general. (Having been this person for over thirty years in the military—not to the extent of some—I have been more often at odds than in agreement with most of my peers.) The question is: are the beliefs and speech of a group so threatening to the internal security of a nation that they must be banned or at least monitored? This is where we get into an area that is fraught with civil liberty implications. The badly mishandled DHS report. (By the way I have it on good authority that report was began, written, and approved by the Bush administration but not released, whereas it counterpart of left wing groups was!)

Should we be fearful to the point of banning groups that advocate the violent overthrow of America—I think not, as most are harmless ranting of a few. However should we know who they are and monitor them—I think so, but maybe it should not be the federal government who does so. The Southern Poverty Law Center is doing a good job, and if they should find troubling developments I am sure they are capable of alerting appropriate authority. It seems to me that unless a federal crime has been committed we should not waste the time or energy to monitor these groups.

Where you have been right to raise the increasing rise of the federal police state, I think the greatest threat comes not from the federal government but rather from overzealous state and local law enforcement agencies. I am troubled by the perceived need of state and local law enforcement agencies to gather intelligence on their citizens, to write reports on otherwise law abiding citizens because they are associated with a particular group, who words not actions, cause concern. I am also disturbed by the “thin blue line” mentality, which increasingly has the police looking more like the military than the good Patrolman Flannigan! Is there a need for the police to wear military style utility uniforms, is there a need for the police to swarm building in delivering routine warrants, is it necessary for the police to use no knock warrants, to bust into a house in the middle of night and shoot and kill a ninety year old women (Atlanta GA) or shoot the owners two Labrador Retrievers (Prince George County Maryland), or to use a Taser against a man simply because he is loud and vocal (University of Florida). The greatest threat to our civil liberties comes not from the federal government, but the increasing Para-militarization of the state and local police departments and the willingness of local and state government leaders to condone the use of extraordinary means at all times in the conduct of police activities. Too many of our police have forgotten they are to serve and protect, and that they have an obligation to their fellow citizens to live by the laws they are to enforce.

Regarding the Bill of Rights, I have always maintained, that no one of the amendments is more or less important than another, that they should all be regarded as inalienable and essential to the exercise of the liberties which all men receive at birth. It always amazes me that some believe that the Bill of Rights includes all the rights except the 2nd Amendment, or that somehow that Freedom of the Press is more important than “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The question, which has not been fully resolved, is whether the Bill of Rights applies only to the Federal Government (see Chief Justice Marshall’s opinion in Barron v Baltimore, however given the language of 14th Amendment, I am hard pressed to believe, despite the Supreme Courts reluctance to do so, why they should not be incorporated.) In fact, I would go as far to argue that the Bill of Rights provides a minimum which each state must provide, but which the individual states may expand upon. At one time, a law student and I postulated a theory of Constitutional Common Law, but it never got beyond the academic discussion stages!

Now I will turn my attention to your stated positions on foreign misadventure. I too share your concerns, that the military has become the first instrument of foreign discourse rather than the means of last resort. I think that part of the problem lies with the passing of the “Wise Men” who understood that to be part of family of nations required the judicious use of force, that you could get more with sugar than vinegar. Unfortunately with the fall of the Berlin Wall, the end of the Cold War, rather than turning our back of foreign involvement, we allowed our position as the Alpha among the family of nations to rule our heart and not our head. I would also submit, that at the end of the cold war, we did not go far enough in dismantling our Cold War military. We should have retreated to inside the borders of our nation, leaving German, Italy, Japan, and the United Kingdom and return our armed forces to the terra firma of the United States. These are we should have, but we didn’t and we are left with legacy of foreign involvements in the expense of our most precocious resources.

Having said this, we are in Iraq—which was clearly a mistake. I am less sure of Afghanistan, although we must and should be wary of long involvement in this region. We should not view it as a nation, but rather a series of tribes connected by a common religion, but who have no concept of what nationhood means nor any desire to become a nation. Should we have gone into Afghanistan after 9/11—I think not, we should have hunted terrorist throughout the world and forced them back into Afghanistan. We didn’t: we decided that revenge was better warm than cold—clearly we forgot the lesson of Don Corelone in the Godfather.

Having said all of this, I do not believe we can return to our isolationist past, nor do I believe we can radically alter the size of the United State Military. In many respect, the Department of Defense has become the quintessential New Deal agency. It size and breath fuel much of our nation’s economy, there is a presence in every community in our nation be it a recruiting station, and national guard or reserve armory, or a industry which in large or small parts contributes to the armed forces of our nation. The Department of Defense is much more adapt at delivering stimulus money than the government as a whole. [Here follows an extremely detailed proposal for reducing the size and scope of the US military, which I will eventually publish as a separate item.]

While I think my thoughts have a certain common sense appeal, the reality is they shan’t have a chance in hell of even being considered. How to limit foreign adventure is best achieved by fiscal restraint in funding the military. If the military is kept small and poor (a lesson of history) then the civilian masters will be less likely to commit our forces to poorly considered foreign adventures.

Now some thoughts on the role of the central Government, its scope, and relationship with state governments. There has always been a tension between the greater and lesser republic. Madison warned us about the tyranny of faction (Federalist 10) and Calhoun argued for a minority veto (Exposition and Protest) (I should note than Lani Guinier essentially for the same and was pilloried in the Clinton Administration by the right!), we fought a Civil War over the right of state to succeed from the Union. As Gary Wills has shown part of the Sui Genius of Abraham Lincoln was the incorporation of the Declaration of Independence into governing philosophy of our Constitution. The Federal Government is now the Greater Republic; with the State being important was clearly beholden to the Central Government. The question is how involved should the Federal Government be in the lives of its citizens.

There are those, who believe that government knows best. The best exemplars of this attitude are the Labour Government under first Tony Blair and now Gordon Brown and Henry Waxman (D California) and (Rosco Barlette) R Maryland.

First I shall disparage Blair et al of Labour. Despite their protest to the contrary their third way was an imposition of the ultimate nanny state. Because they were better educated, because they were rich and successful, because they were urban and not rural, they knew what was best for the citizens of the United Kingdom. Traditional education standards were cast aside in order to promote a diverse nation, being English was seen as somehow not in keeping with the 21st Century. Yet, for all their reforms their education is routinely considered to be failing its students and declining as measured against other European countries. Fox Hunting was an affront to their urban educated sensibilities, so rather than letting the minority who enjoyed the sport continue to do so, they banned it because they could do so. They did it in a heavy handed way that showed their true colours, which was to stamp out any traces of Toffiness. Of course this has proven to be a legal and public relations disaster for Labour.

Likewise, the imposition of draconian rules and regulations on the owners of Public Houses has merely turned a once thriving commercial industry into a slowly dying one. But of course while imposing draconian rules and regulations they allowed their urban well educated friends in the financial industry to create new means of making money, but through means that not only put their individual fortunes at risk but also the financial underpinnings of the United Kingdom most importantly the common working stiff, who led on by unscrupulous lenders has lost not only his home, his job, and his life savings. Rules and regulations are fine for the Toff and the working stiffs, but not us who smart and know what we are doing. Of course, these are the same ones who have now been caught with their hands in the cookie jar so to speak, by padding their expense accounts.

Now I shall turn my attention to Messers Waxman and Barlette. Mr. Waxman, is the exemplar of the bully nanny state. Nothing is too small for his inquisitions. He regularly belittles Executives of legal industries (Tobacco) for selling a legal product, he proposes draconian solutions to problems by increasing the scope and reach of government. Mr. Barlette, on the other hand, believes that somehow the United States must protect young impressionable and honorable young men of the Armed Forces of the United States from the purveyors of pornography such as Playboy and Penthouse with their pictures of scantily clad or naked females. He also believes that gay men and women are not honorable to serve in the United States military as somehow he believes they will turn good heterosexual military men and women into deviant perverted screaming and flaming homosexuals.

Now, having said all this let me turn the other cheek and speak out the other side of my mouth. Whereas in my previous discourse I spoke to the desire of man for liberty and freedom, free from the unnecessary and unwarranted intrusion of government into their lives let me address the other need of mankind—the need for order.

In the world of Locke mankind is perfectly capable of regulating (intentional choice of a word) his/her conduct; whereas in the world of Hobbs (an I should not many Calvinists) man requires a strong central government to control the rabble of the polity. The essential question is how to balance the need for Liberty with the need for Order. [A graphic which did not make the transition with this email has been omitted.] I would submit you could go to any period of American history, in 1798 the Patriot Act could be replaced by the Alien and Sedition Act.)

Several weeks ago, you posted a condemnation of the Department of Homeland Security for their release that implied that right wing extremist posed the greatest threat to our nation. Given the history of right wing extremist groups, was this not a prudent move, to alert state and local police to the potential of violence by these groups? Where DHS made a mistake was to determine the threat based on ideology rather than the propensity for violence, if that standard had been used then it would have group gangs, environmental extremists, PETA etc in one report.

While we should respect the Bill of Rights, I believe that our history has highlighted, even the founders believed that the Bill of Rights were not absolute. It seems where one of the failing of those who argue that the 2nd Amendment is absolute fail, is the fact that the other rights contained in the Bill of Rights are not absolute. Assembly and speech have some limits; assembly can be regulated by time, manner, and place; speech can be regulated where it cause violence, or as Justice Holmes said, it does not give one license to yell fire in a crowded theater; religion has some restrictions in particular the use of Christian prayers at public assemblies; some searches are permitted without a warrant when the police can show there is high probability of flight and a linkage of the search to a crime. As the Supreme Court decision in Heller v. the District of Columbia, the restrictions imposed by the DC Government were too extreme, but the Court acknowledged that governments have a right to impose some reasonable limitations in order to maintain order in society as whole, of course they left it to the Courts to determine what was reasonable. This reminds me of the guidance contain in Lemmon v Kurtzman (403 US 602) which provide broad pronouncements regarding the entanglement of religion in the matters of state.

Can rights be absolute? I think not, as it would be anarchy, which would be appealing to neither the Locke nor Hobbs which resides in each of us.

In this day and age can we as a nation afford to allow the state unrestrained determination of what the role of government? I doubt for a moment you want California to determine how the government of Delaware should function, rather you would want the good citizens of Delaware to determine their own fate, nor do I believe you want each state in our great nation to be the same in how it views governance. In fact I would argue that one of the strengths of our nation is the fact that as David Broader says, there are multiple laboratories of democracy in operation in our nation at any given time.

Despite my general good feelings for Locke, and despite my admiration for the concept of democracy as a system of government as a whole, I must confess that I wonder whether too much democracy is necessarily good for the body politic. In this, I believe, I share many who wonder if the progressive impulses of Hiram Johnson have served the state of California and its citizens in obtaining good governance.


tom said...

"The question, which has not been fully resolved, is whether the Bill of Rights applies only to the Federal Government

The 14th Amendment & Barron v Baltimore notwithstanding, it seems to me that it should be very difficult to unintentionally misinterpret the 2nd clause of Art VI, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.", in a way that did not make the "declaratory and restrictive clauses" of the 2nd-9th Amendments binding on the States.

The 1st is a bit more difficult to interpret as applying to the state governments since it specifically refers to Congress.

David Settino Scott, II said...

Although, I personally am so far to the left that even the democrats appear to me to be "right-wing," I consider myself to be a strict constitutionalist. It is my opinion that since its inception there has been an organized and systematic assault by the conservatives in the United States on the civil liberties written into the US Constitution. The “War on Drugs”; “War on Terror”; “War on Communism” and a host of other wars waged by the right wing are really nothing more than a War on People--an excuse to erode civil rights to the point of non-existence. I invite you to my website devoted to raising awareness on this puritan attack on freedom:

tom said...

[off topic to David Settino Scott, II ]

Just out of curiosity, where are you on the Nolan chart?

tom said...

On the other hand, whether or not the Federal Bill of Rights was binding on the states should have been a moot point because between 1776 and 1791, most of the colonies/states adopted their own constitutions with protection of individual rights roughly equivalent or in some cases stronger than the Federal government's, and Congress could have easily made that a precondition for statehood.

David Settino Scott, II said...


According to your chart, I am at the top of the libertarian square.