If you’ve been a Gentle Reader of Liberty’s Torch for a goodly while now, you’re probably familiar with the late Sam Francis’s coinage anarcho-tyranny. For those who haven’t yet made the acquaintance of this useful term, here’s the original formulation:
What we have in this country today, then, is both anarchy (the failure of the state to enforce the laws) and, at the same time, tyranny – the enforcement of laws by the state for oppressive purposes; the criminalization of the law-abiding and innocent through exorbitant taxation, bureaucratic regulation, the invasion of privacy, and the engineering of social institutions, such as the family and local schools; the imposition of thought control through "sensitivity training" and multiculturalist curricula, "hate crime" laws, gun-control laws that punish or disarm otherwise law-abiding citizens but have no impact on violent criminals who get guns illegally, and a vast labyrinth of other measures. In a word, anarcho-tyranny. [From the essay Synthesizing Tyranny, written shortly before Francis’s death.]
The longer I live, the more I come to view anarcho-tyranny as the terminal state toward which all governments tend as they mature and degenerate.
But that’s a subject for a later tirade. For today, let’s have a look at the most conspicuous recent outcropping: the assertion of various courts that they possess jurisdiction sufficient to block the enforcement of President Trump’s temporary ban on immigration from several chaotic, violence-ridden countries.
Mark Levin, in whose emissions I seldom take much interest – he’s simply too shrill for my tastes – captured the matter thus:
“We have, ladies and gentlemen, rogue federal district judges now; we have rogue courts,” Levin exclaimed. “We have judicial anarchy taking place…where judges are seizing plenary authority from the president of the United States to keep this nation safe — to control our borders and to determine the nature of our immigration in this country.”
Strictly speaking, there is no need to submit to "judicial anarchy." The courts have no enforcement arm for this very reason. With regard to the current foofaurauw, if the Attorney-General were to prepare a finding for the president that says the courts don't have valid jurisdiction over the subject matter, the president could ignore the courts, freely and without adverse consequences. Andrew Jackson did it; why not Donald Trump?
The reason might be that the Trump Administration fears a popular backlash: i.e., an adverse reaction from the portion of the electorate that believes the courts to possess plenipotentiary authority over everything. This actually helps to illuminate both the current contretemps and the intra-governmental relations of the courts and the other branches.
James Madison, often called “the father of the Constitution,” regarded the courts as “the least dangerous branch” of government. The widespread belief is that that was because the courts were allowed no enforcement arm, apart from the bailiffs allowed for keeping order during a court proceeding. However, this reverses cause and effect. The courts were allowed no enforcement arm because of the danger they would otherwise pose, as is well established by English history.
The great majority of judges in pre-Industrial Revolution England, from which much of our legal tradition derives, were not government employees, neither elected nor appointed nor hired. They commanded deference on the basis of their personal qualities and their willingness to sit as judges; in other words, from popular respect for their wisdom and diligence. If you’ve heard the term “circuit judge” and have wondered about its provenance, it comes from the time when a judge would routinely “ride a circuit:” i.e., he would regularly travel a known route from place to place, hearing such cases as were presented to him in each place and ruling on them according to the “common law,” another American inheritance from England.
To make this a workable living, a judge needed to be known and respected in each of the stops along his circuit. A judge’s enforcement arm was the willingness of the commoners whose cases he heard to enforce his rulings. Thus, he had to have a reputation for fairly and consistently applying both the common law and what precedents might exist for its enforcement. For a judge to become known as capricious or arbitrary – e.g., for promoting his personal views over the common law as English commoners knew it – would spell the end of his career.
England’s problems with “star chambers” and the like came about because of courts whose authority descended from the Crown – i.e., whose enforcement arm was the force commanded by the King. Common-law judges posed no such problems, precisely because they had no enforcement power of their own. Indeed, it was often the role of a common-law judge to prevent a lynching or other variety of mob “justice:” something only a very well known, well respected jurist could do by force of character.
Even though American judges are government employees, the essence of the English common-law judicial system – that the court have no enforcement arm of its own – was largely preserved by the Founding Fathers. The courts’ authority is essentially one of popular consensus concerning the probity and wisdom of the courts: i.e., that the courts are assessing the laws faithfully rather than whimsically or capriciously.
But by innumerable capricious judgments: both failures to uphold the black-letter law and usurpations of jurisdiction that in no way belong to them, the courts have destroyed that consensus. Where, then, do we stand?
Sam Francis’s thoughts on anarcho-tyranny are nicely illuminated by contemporary developments – and not just in the federal courts. A justly famous article about “the coming middle-class anarchy” makes the point quite well, albeit in language a bit rougher than is likely to be found in any judge’s opinions:
When the backbone of a country starts thinking that laws and rules are not worth following, it’s just a hop, skip and a jump to anarchy.
TV has given us the illusion that anarchy is people rioting in the streets, smashing car windows and looting every store in sight. But there’s also the polite, quiet, far deadlier anarchy of the core citizenry — the upright citizenry — throwing in the towel and deciding it’s just not worth it anymore.
If a big enough proportion of the populace — not even a majority, just a largish chunk — decides that it’s just not worth following the rules anymore, then that society’s days are numbered: Not even a police-state with an armed Marine at every corner with Shoot-to-Kill orders can stop such middle-class anarchy.
Brian and Ilsa are such anarchists — grey-haired, well-dressed, golf-loving, well-to-do, exceedingly polite anarchists: But anarchists nevertheless. They are not important, or powerful, or influential: They are average — that’s why they’re so deadly: Their numbers are millions. And they are slowly, painfully coming to the conclusion that it’s just not worth it anymore.
Once enough of these J. Crew Anarchists decide they no longer give a fuck, it’s over for America — because they are America.
Please read the whole article, if you haven’t done so before. While it’s not merely the courts’ fault that this attitude is gaining strength, the descent of the courts – especially federal courts – are a major component of the machine steadily reducing us to anarcho-tyranny.
For decades now I’ve flitted between minarchism and outright anarchism. If you’ve read my Spooner Federation books, you’re familiar with the process I consider inevitable:
- The disorder of the “state of nature” – read Thomas Hobbes – gradually gives way via natural processes to order, albeit without a recognized – i.e., a pre-indemnified – government.
- A well-ordered yet ungoverned society – i.e., the anarchist ideal – will slowly evolve into an (at first) well-ordered governed society with strong popular consensus.
- This gradually becomes an unjustly governed society owing to the dynamic of power-seeking: i.e., the men most likely to gain power are those who want it for its own sake and the benefits it can bring them personally.
- The unjustly governed society will steadily lose its order, and therefore its popular consensus: the consent of the governed. This will precipitate collapse.
- Collapse means a return to anarchy, which by dint of natural processes will slowly regain order, restarting the cycle.
This cycle has overwhelming historical support. It suggests that there’s no way out of the cycle, which implies that for best results, one simply has to trust to luck – i.e., to be born in the right time and place – and mobility – the readiness, willingness, and ability to move from an undesirable society to a more desirable one. But where does that leave us of Twenty-First Century America?
Why, right where we are today, of course: enmeshed in a steadily deteriorating, ever more anarcho-tyrannical context. At the moment, the only escape is to even less desirable places. That might change; developments in space flight and workable space habitats are ongoing, and it’s impossible to say if or when they’ll mature. But the cycle itself appears to be embedded in human nature. If that’s the case, then no matter where men go, the cycle will go with them.
I yield the floor to my Gentle Readers.