The True Value of the Bill of Rights

One thing you can always count on here in the United States is that whenever a man made tragedy occurs, a sizable portion of the population will blame the Bill of Rights. Within my lifetime the most egregious example of this occurred after the 9/11 attacks. Citing the need to protect the citizenry, the United States government picked up its systemic campaign against the Bill of Rights with a renewed zeal. Although some of the actions taken during that campaign were later reversed, the citizenry ended up with fewer rights post-9/11 than it had pre-9/11. But this campaign against the Bill of Rights isn’t unique to tragedies similar in scale to the 9/11 attacks. It manifests after pretty much every man made tragedy that receives national attention.

I’ve made my opinions of the United States government, and every other government, very clear. I believe that government as a concept is awful and should be done away with. Anarchy, the state of not having a state, is far better than giving a handful of individuals absolute power and letting them do whatever they please to everybody else. I also hold a worldview that can be described as egoist. I don’t believe rights are god-given, self-evident, or in any way objective. To me rights are a concept that exist exclusively in the imaginations of individuals. With both said, I believe there is merit in many of the Enlightenment ideas upon which the United States was founded. The idea that a government should be subservient to its people, even if it is an impossible one, is meritorious as is the idea that individuals enjoy certain rights.

For those who haven’t read up on the history of the founding of the United States, the first federal governmental system was codified by the Articles of Confederation (which, despite the name, is unrelated to the Confederate States of America). The Articles of Confederation established a weak federal government and left most sovereignty to the individual states. It didn’t last long. The event that sealed the fate of the Articles of Confederation was Shays’ Rebellion. Even though Shays’ Rebellion was successfully put down by the existing governmental system (specifically Massachusetts’ state militia), power hungry politicians used the event to demand a stronger federal government. This sparked off a debate between two camps: those who wanted a stronger federal government, who are known to us as the Federalists, and those who opposed the idea, who are known to us as the Anti-Federalists.

The Anti-Federalists pointed out, correctly as we known with the benefit of hindsight, that the federal government then being proposed by the Federalists would eventually become tyrannical. While the Anti-Federalists weren’t able to stop the creation of a strong federal government, they did managed to get a concession: the Bill of Rights. As I’ve explained on this blog numerous times, the Bill of Rights failed to restrain the federal government. But that’s not to say it was a complete failure. The Bill of Rights at least slowed the rate at which federal power expanded. It accomplished this by requiring the federal government to address the Bill of Rights whenever it expanded its power over territory addressed by the Bill of Rights. Since the Constitution gave the federal government ultimate authority over interpreting the Constitution, those addresses usually ended with the federal government authorizing its own expansion of power. But once in a while a judiciary stomped down an attempted expansion or at least established a number of caveats. What so-called rights we enjoy today are the caveats established by those rare judiciaries that didn’t rubber stamp whatever the federal government was authorizing itself to do.

Fortunately, the legacy of the Anti-Federalists continues. Even today after most of the so-called rights mentioned in the Bill of Rights have been caveated into near nonexistence, debates about rights are still generally over degrees. Most debates about speech aren’t about whether an individual has a right to free expression; it’s taken for granted that the First Amendment guarantees the freedom of expression. Instead the debates are about how far free expression can go before it no longer falls under the protection of the First Amendment. While the difference is minor in the long run, the fact that the debate is framed in a way that free expression is guaranteed has kept it in a state of slow erosion instead of immediate annihilation.

Had the Anti-Federalists not managed to get the Bill of Rights included in the Constitution, we would likely live in a different political world.

Without the First Amendment, we would likely be subjected to an extensive list of prohibited forms of expression that ranged from criticism of the government to pornography. The question of who qualified as a journalist would likely be answered and the answer would be only individuals credentialed by the federal government (or maybe even the state governments if the federal government was feeling especially generous).

Without the Second Amendment, there would likely be no debate over what types of firearms an individual is allowed to own. All individual gun ownership would likely be prohibited.

Without the Fourth Amendment, law enforcers would likely be able to conduct random searches of your dwelling without even needing to make up probable cause to get a warrant. Civil forfeiture, where property can be seized if a law enforcer so much as suspects it’s related to a drug crime, would be the norm rather than the exception.

Without the Fifth Amendment, there would likely be no limit to the number of times an individual could be charged with the same crime. The state would be free to bring the same charges for the same crimes against an individual as many times as it needed to get a conviction.

But that wouldn’t matter because without the Sixth Amendment, individuals charged with a crime would likely not enjoy a trial by jury. While the jury system here in the United has flaws (many flaws), it’s still a step up from a Star Chamber.

The true value of the Bill of Rights is that it puts the federal government into an awkward position. In order to maintain the illusion that it is governed by a system of laws (which is the illusion upon which its legitimacy in the eyes of the masses is built), it cannot simply pass a law that curtails an enumerated right. Maintaining that illusion requires that any law curtailing a right must be accompanied by a lengthy campaign to convince the masses that the amendment or amendments that address that right don’t actually mean what they say. Furthermore, the illusion requires the federal government to entertain challenges to the law on constitutional grounds. Once in a while the federal government even needs to temporarily concede ground and wait for a more opportune time to curtail that right.

Had human imagination never conceived of the destructive force we call government or had the majority dismissed the it for the bad idea it is, the Bill of Rights and similar declarations of rights would be of little value. But we live in a world where the majority share a mass delusion, a delusion that says we need to vest power in a handful of individuals to prevent a handful of individuals from taking power. So long as the majority of people suffer from that contradictory delusion, the Bill of Rights and the concept of rights have value even if both are, like government, figments of our imaginations. When you find yourself in the Neighborhood of Make-Believe, sometimes the only way to survive is to play a game of make-believe yourself.

Ghost Stories

This evening I logged onto Facebook and saw a bunch of my friends were commenting on the following infographic:

It was produced by the National Museum of African American History and Culture (NMAAHC) and has caused quite the stir (which is to say it has served its likely intended purpose). Some of my friends expressed agreement with it and some of my friends expressed disagreement with it. Not surprisingly there was a significant correlation (as in 100 percent) between a friend’s opinion and their expressed philosophical ideology.

However, even those who disagreed with it failed to address the primary problem with this infographic. The ultimate failure of this infographic isn’t that it claims that characteristics like rugged individualism, nuclear families, and Christianity are white or that it implies that those characteristics are undesirable. The ultimate failure of this infographic is the same failure of all commentary on “cultures,” “societies,” and “classes.” It’s listing “facts” about make believe.

Cultures, societies, classes and other attempts to treat unique individual as anything but don’t actually exist. They’re made up, as George Calin once said about rights, like the boogeyman. Listing facts about a culture, society, or class is no different than listing facts about elves. Doing so is often a fun exercise, but elves aren’t real (outside of Iceland, of course) so any “facts” you list about them are entirely made up.

With that said, I didn’t write this post to ruin your fun. Don’t let it stop you from arguing about this infographic. People argue passionately about make believe all the time. But do know that I’m laughing at you, not with you, because, as Max Stirner would say, you have a head full of ghosts and are badly in need of an exorcism.

How You Can Help Fight Law Enforcement Brutality

Here’s an idea for something you can do right now to help fight law enforcer brutality.

Stop calling the cops over stupid shit like your neighbor’s grass being too tall, an individual openly carrying a firearm walking around and minding their own business, a voluntary transaction of cash for illicit drugs happening in a parking lot, or kids playing at a playground without parental supervision.

Interactions with law enforcers always carry the risk of turning violent. Reducing the number of interactions will reduce the number of opportunities for harmless activities turning into violent encounters.

Do your part, don’t be a snitch.

Tyranny in New Zealand Isn’t Beginning

In the wake of New Zealand’s announced gun ban I’ve seen a lot of pro-gun people stating that this is the beginning of tyranny in New Zealand. However, tyranny in New Zealand isn’t beginning, it’s already well established. Yesterday I posted not just about the new gun ban but about New Zealand’s law that grants the government permission to lock somebody up for up to 14 years for publishing objectionable material. It shouldn’t surprise anybody that the government not only gets to jail people for posting objectionable material but it also gets to define what is objectionable.

None of this is new either. There is a long tradition of censorship in New Zealand, including filtering Internet traffic. As an amusing aside, New Zealand’s Internet filtering came almost immediately after its government promised not to implement Internet filtering:

In March 2009, the Minister for Communications and IT, Steven Joyce, stated that the government had been following the controversy surrounding Internet censorship in Australia, and had no plans to introduce something similar in New Zealand. He acknowledged that filtering can cause delays for all Internet users, and that those who are determined to get around any filter will find a way to do so.[5] Later in July of the same year, it was reported that the Department of Internal Affairs had plans to introduce Internet filtering in New Zealand.[6][7] The project, using Swedish software, cost $150,000.[8] February 2010 saw the first meeting of the Independent Reference Group, who are tasked with overseeing the responsible implementation of the DCEFS.[9] In March 2010, a year after Joyce stated that there were no plans to do so, the Department of Internal Affairs stated that the filter was operational and in use.[10] Tech Liberty NZ objected to the launch of the filter, but DIA defended the system and noted that trials over two years showed that the filter did not affect the speed or stability of the internet.[11]

Free speech, which is usually considered a cornerstone of a free society, hasn’t existed in New Zealand for a very long time. Banning firearms is just another step in the direction New Zealand has been traveling for a long time now.

This Is What Democracy Looks Like

Ars Technica ran this story with the title China’s “democracy” includes mandatory apps, mass chat surveillance. The important part to note is the scare quotes around the word democracy. From the article:

As the National People’s Congress gathers in Beijing for the beginning of China’s “Two Sessions” political season, state media is making an international propaganda push on social media—including on platforms blocked by China’s “Great Firewall”—to promote China’s “system of democracy.”

[…]

That system of democracy apparently involves mass surveillance to tap into the will of the people. While China’s growth as a surveillance state has been well-documented, the degree to which the Chinese leadership uses digital tools to shape the national political landscape and to control Chinese citizens has grown even further recently. That’s because authorities have been tapping directly into Chinese Communist Party (CCP) members’ and other Chinese citizens’ online activities and social media profiles.

I’m using the Ars Technica article for illustrative purposes but the general attitude amongst Americans seem to be that China isn’t actually a democracy. However, democracy is a system where voters have the opportunity to gang up against each other. This inevitably results is a paranoid police state where everybody has voted to surveil and punish everybody else.

The primary difference between China and apparently freer democracies is where they started. Take the United States for example. It started with an almost powerless federal government and a strong mythology about individual freedom. It took a great deal of time for voters to first vote a larger government into existence and then vote to wield it against each other. The People’s Republic of China, other the other hand, started with a much more powerful government so there was no delay from voters having to first vote it more power before they could wield it against each other.

The things for which us enlightened people of the glorious Western democracies mock China are in our future. Just look at the massive surveillance apparatuses in the United States and United Kingdom. There is scarcely a thing you can do or a place you can go that isn’t surveilled by some government entity. The Ars Technica article discusses the effort China is putting into propagandizing its party members but the author likely failed to recognize the similarities between those efforts and the efforts in Western public education systems to propagandize young children. While most Western democracies aren’t as overt about controlling their news outlets as China is, all of the major supposedly independent media outlets are little more than government propaganda machines (how else are reporters going to get access to the James S. Brady Press Briefing Room or get themselves invited to the White House Correspondents’ Dinner).

Make not mistake, what we’re witnesses in China today is the endgame of any democratic system. To insinuate that China isn’t a democracy is to misunderstand what a democracy truly is.

With a Wave of My Hand

When I was in high school, I was taught about how the three branches of government counterbalance each other. The president can’t write or pass law. Congress can’t sign legislation into law. If the president and Congress conspire to do something illegal, the judicial branch can overrule their actions. But like Santa Claus, the Easter Bunny, and the Tooth Fairy, the idea that the three branches of government balance each other out is a fairy tale.

The executive branch has continued to grow in power since the beginning of this country. Instead of slapping down attempts by the executive branch to grab more power the legislative branch has worked to retroactively declare those power grabs lawful. The judicial branch, which is ultimately ruled by the Supreme Court, which consists of judges nominated by the executive branch, has more often than not rubber stamped executive power grabs.

Now instead of Congress proposing and voting on legislation and the president signing it into law, new restrictions can be created by the executive bodies that have been granted regulatory power. The latest example of this is the reclassification of bump stocks as machine guns. Congress never passed legislation. The president said that he was going to ban them and one of his agencies, the Department of Justice, created a new regulation that declared bump stocks machine guns and thus put them in a category that is unlawful to own (machine guns that weren’t registered by May 19th, 1986).

This reclassification by an executive agency isn’t new. This has been the norm for decades. I just wanted to highlight it because, unlike Santa Claus, many people believe in the fairy tale of a balanced government well into adulthood.

Tim May Has Passed

Yesterday I learned that Tim May, the man who established the concept of crypto-anarchy, passed away:

Tim May, co-founder of the influential Cypherpunks mailing list and a significant influence on both bitcoin and WikiLeaks, passed away last week at his home in Corralitos, California. The news was announced Saturday on a Facebook post written by his friend Lucky Green.

In his influential 1988 essay, “The Crypto Anarchist Manifesto,” May predicted that advances in computer technology would eventually allow “individuals and groups to communicate and interact with each other” anonymously and without government intrusion. “These developments will alter completely the nature of government regulation [and] the ability to tax and control economic interactions,” he wrote.

The Crypto Anarchist Manifesto influenced me greatly. It was an important document when it was released and its importance has only grown since then. Today surveillance technology is pervasive, which has caused many people to feel hopeless but, as The Crypto Anarchist Manifesto pointed out, technological advances would also give people the power to communicate away from the gaze of Big Brother.

May’s predictions did pan out. Consider the Silk Road and it’s various offspring. Crypto-currencies enable people to avoid one of the government’s largest sources of control, monetary exchanges. Tor provides a protocol that allows people to view and host sites anonymously. When these two technologies were combined, the prohibition enforcers had a hell of a time taking it down and only managed to do so because the suspected creator made a post on a clear web forum with an e-mail address associated with an account on Silk Road. Today there are dozens of online drug markets veiled by Tor and crypto-currencies that the prohibition enforcers have so far been unable to take down.

There are numerous technologies available to allow us to communicate with each other secretly. Signal is probably the best example as it is both easy to use and its protocol has remains unbroken. Even clear web traffic has become more difficult to surveil. When Edward Snowden revealed the National Security Agency’s (NSA) pervasive domestic surveillance program, a lot of online traffic was transmitted in the clear. Today more and more traffic is transmitted in an encrypted manner, partially thanks to the efforts of Let’s Encrypt, which allows server administrators to setup trusted Transport Layer Security (TLS) connections for free.

Tim May and the ideas he helped establish deserve a lot of credit for influencing all of this. Fortunately, even though he is no longer with us, his ideas are established and will remain with us.

Score One for the First Amendment

James Webb came across a law enforcer expropriating wealth from a motorist and did what any red blooded American would do, he cranked up NWA’s Fuck the Police. The officer, having no self awareness or sense of humor, cited Webb for violating the city’s noise ordinance. Instead of paying, Webb decided to take the matter to court. The jury quickly decided that the case was “>stupid and ruled in Webb’s favor:

A man facing jail time for blasting the song “F the Police” and allegedly violating Pontiac’s noise ordinance was found not guilty by a jury.

[…]

“The police officer’s reasoning was that he said this music was vulgar. And part of the vulgarity was that it used the F word, but we had on the video that the first man the officer had pulled over; the officer is dropping F-bombs with him. So why is it OK for this man to hear the F-word but not other people?” said Nicholas Somberg, who represented Webb in court.

Webb chose not to pay the fine for allegedly violating the noise ordinance and instead chose to take the case to trial. The jury took all of nine minutes to come back with a not guilty verdict.

Kudos to Webb for taking the citation to court rather than paying it. Kudos to the jury for only taking nine minutes to decide that the accusation against Webb was stupid. And kudos to the officer whose argument was based on the vulgarity of Webb’s music while he was on camera using vulgarities himself.

Score one for the freedom of expression.

The American Medical System

What do you get when you take a wonderful free market medical system and continuously inject a little more government into it? The American medical system:

Sorry, let me explain a hospital to you: we give you medical care, then we charge whatever the hell we want for it.

If you don’t like that, go fuck yourself and die.

Honestly, there’s no telling what you’ll pay today. Maybe $700. Maybe $70,000. It’s a fun surprise! Maybe you’ll go to the ER for five minutes, get no treatment, then we’ll charge you $5,000 for an ice pack and a bandage. Then your insurance company will be like, “This is nuts. We’re not paying this.” Who knows how hard you’ll get screwed? You will, in three months.

When I buy gas, books, groceries, a cell phone plan, computers, or anything else, the prices are clearly posted. I know what a gallon of gas costs before I buy it. I know what a gallon of milk and a carton of eggs costs before I buy them. But when I need anything involving the medical industry, I seldom have any idea what I’m going to be charged. If I ask, I won’t get a straight answer (unless I’m dealing with one of the handful of wonderful medical facilities that deals in cash but they’re still pretty hard to find). I’ll be told that it will depend on my insurer.

My insurer is an asshole. It has continued to increase my premiums and deductibles will reducing my services. I’m stuck with it though because I, like most Americans, get my insurance through my employer and my employer isn’t big enough to strong arm insurers into providing better packages. This was an entirely different situation before the passage of the Affordable Care Act (ACA), which mandated that every American do business with medical insurers and thus removed any motivation they had to provide a good product at a reasonable price. Before the ACA my insurance was pretty decent and if it hadn’t been decent, I could have found an individual plan that suited my needs.

The passage of the ACA was just one amongst decades worth of laws that slowly transformed the country’s free market medical system into the government controlled mess that won’t even clearly tell you what the product you’re buying costs. Unfortunately, most people subscribe to the idea that if something didn’t work then it wasn’t tried hard enough. If you ask most people how the medical system can be fixed, they’ll tell you, “More government!” Needless to say I’m not hopeful that I’ll be able to walk into a clinic and see a board that clearly advertises the prices being charged for offered services anytime soon.

Intellectual Property Laws are Ineffective

I’ve enjoyed pointing out the absurdities that the concept of intellectual property enables. Now I want to address the matter from a more pragmatic angle.

Gun rights activists like to point out the fact that gun control laws are ineffective and thus passing them is pointless. Advocates for drug legalization like to point out the fact that drug prohibitions are ineffective and should thus be repealed. Both are sound arguments. Investing resources into enforcing ineffective laws is a waste. Those resources would be better redirected at effective means of addressing problems. Many of the people who make those two arguments are surprisingly inconsistent with their logic when it comes to intellectual property laws though.

Intellectual property laws are ineffective. I can pirate almost any creative work right now with a few keystrokes thanks to numerous piracy websites. The most notorious of these sites is The Pirate Bay. Governments around the world have attempted to use intellectual property laws to shutdown The Pirate Bay for more than a decade but the site remains online. Even when governments are able to shutdown a piracy site, several new ones appear in their place. And those are clearnet sites whose server locations and operators are, for the most part, easily found. There is a whole world of “darknet” piracy sites hidden with Tor Hidden Service, I2P, and similar protocols.

Piracy can’t even be thwarted in the physical world. Everything from counterfeit designer clothing and fashion accessories to counterfeit electronics can be readily had. Even the government of the United States can’t reliably distinguish counterfeit components from authentic ones.

Advocates of intellectual property continue to claim that intellectual property laws protect inventors and authors of creative works but the evidence indicates otherwise.

Intellectual property is a fairly modern concept. Before it came into being inventors and authors came up with other strategies to protect their works. The same is still true today even with intellectual property laws on the books. Coca-Cola, for example, doesn’t have a patent on its formula. Instead it relies on keeping it a secret. Kentucky Fried Chicken relies on the same strategy. Many online content creators make a living on content that they release for free. How do they accomplish this? By urging their fans to support them through services like Patreon. For a fee Twitch viewers can subscribe to the channels of creators they enjoy to support them. YouTube allows creators to monetize videos through advertising. Many inventors and authors utilize crowdsourcing services such as Kickstarter to get paid upfront before releasing their latest product.

Netflix, Spotify, and iTunes Music have also demonstrated that piracy can be reduced by offering a product in a convenient package at a reasonable price. Why bother searching through various pirating sites for a song when you can pay $10 a month to Spotify or Apple to access a vast all-you-can-consume buffet of music? Your time is worth money after all and for many people $10 a month isn’t a lot of money.

None of these strategies would likely exist if intellectual property laws were effective. If gun control laws and drug prohibitions are argued to be pointless because they’re ineffective, then so should intellectual property laws.