Dealing With Them

     I’ve been encountering a fair number of graphics like the one below:

     We all know what the point is. Look at those plaintive faces! Look at the kids, so in terror of being deported, even if they don’t know what “deported” means. Such innocence! How could anyone want to kick such nice people out of the United States? What about Emma Lazarus’s poem!

     Yes, yes. It plucks the heartstrings. It makes us question ourselves. It forces a hard look at what it means to enforce the borders after-the-fact. All that and more for the price of a cheap graphic.

     We should ask ourselves all those questions. It’s ethically mandatory. When we set out to enforce a law that previous administrations allowed millions to break, we must know what we’re about: the challenges, the costs, the risks, and where to place the blame.

     An illegal alien is a lawbreaker ab initio. He gets no credit for not breaking any other laws. He gets no credit for being self-supporting and responsible, or for being a pillar of the Undocumented-American community. He should get a shred of sympathy for believing that the new administration would perpetuate the previous one’s folly. He should not be tortured or brutalized, just deported with all his kith and kin.

     That’s the law.

* * *

     One of my favorite writers, Greg Bear, gave us this powerful insight in his novel Anvil of Stars:

     “No villain comes in black, screaming obscenities. All evil has children, homes, regard for self, fear of enemies.”

     The enemy – for now, at least – is human. Vulnerable, fallible, and mortal. But he’s still the enemy. He must be dealt with. Bear’s novel is a masterpiece for depicting what that would mean on the largest imaginable scale. I can’t think of another fiction that brings it home so vividly.

     The lawbreaker is a special category of enemy. Perhaps he meant no harm to anyone. When the subject is illegal immigrants, that’s probably the case more often than not. But he’s a lawbreaker. If we believe in the law, and in enforcing the law evenhandedly, he must go: hopefully, without violence.

     Granted that the perfect enforcement of the law is beyond our abilities. Some illegal aliens will never be discovered, and so will remain within our borders. That is not an argument for declining to enforce the law as best we can. Those illegals we can identify must be expelled. Not only has the public demanded it; maintaining general respect for the law requires it.

     The late Gonzalo Lira spoke of “moral hazard:” the consequence of allowing oneself (or others) exceptions from the law. The concept applies not only to statute law but to the ethical laws that make a peaceful, civilized society possible. Moral hazard is what makes such exceptions dangerous, for they speak broadly: “If we can get away with it, why not?”

     If you’ve encountered the term weaponized empathy, this is where it’s most potent. That graphic and others much like it attempt to weaponize your empathy. “They look so innocent and defenseless! Let them stay.” It’s insidiously seductive. It invokes your compassionate nature in opposition to your interests and those of the whole nation.

     We are not somehow evil for insisting that the law be enforced as written. The evil resides with those who sought to nullify the law de facto by not enforcing it. They were trying to serve their interests: their desire for permanent power. We are not required to oblige them.

     Have a nice day.

Carta Obsoleta

     It’s difficult to deal with the news coming out of the United Kingdom these days.

     My Gentle Readers already know about some of the things beleaguering the Sceptered Isle. There are the increasingly restive and assertive Muslims, the theft and street chaos, the “grooming” of white girls by immigrants, the sinking economy, the rash of dependency, the use of the police to suppress dissent, and more.

     But can you believe that the Labour government wants to scrap the trial by jury?

'So judges are just better at finding facts?'
'They're experienced at it.'

Sir Brian Leveson, who led the criminal courts inquiry, explains why he thinks Lammy is absolutely right to scrap jury trials. pic.twitter.com/qDTQFw7acY

— LBC (@LBC) December 2, 2025

     Trial by jury is guaranteed by Magna Carta, which serves Britain as a partial constitution. You would think that a man knighted by the Crown would have at least a passing acquaintance with that document. Perhaps he does... yet he’s perfectly ready to violate that guarantee for “efficiency.”

     If Britain’s courts are “clogged,” what’s the nature of the cases that clog them? Might a great many of them be the fruits of luxuriant law and the overextension of government power? How many are free-expression cases, in which the State has striven to punish “misinformation,” or “hate speech,” or sentiments it simply disapproves? How many arise from regulatory overreach, whether via the State or one of the ubiquitous QUANGOs?

     But let’s look a bit deeper yet. What are the foreseeable consequences of a “justice system” that lacks the right to a trial by a jury of one’s peers?

1. A trial judge not restrained by a jury verdict can rule on his understanding of the law alone, which eliminates the possibility of jury nullification of a bad or unconstitutional law.
2. The trial judge has authority over what evidence may be introduced; thus a trial judge can pre-justify any verdict whatsoever merely by excluding evidence that leans in the opposite direction. Thus, as appellate judges are not permitted to assess the evidence, the probability of a successful appeal is greatly reduced.
3. The State can ensure the imprisonment of any British subject, merely by lodging an accusation against him and bringing him to trial before a government-owned judge. Given the British government’s notorious hostility toward freedom of expression, that would effectively establish a censorship regime.
4. Inversely, the State can ensure the acquittal of any subject, by routing his trial to that selfsame government-owned judge. That would allow it to create classes of subjects who are guaranteed immunity from penalty for their crimes.
5. All the above make the “justice system” a weapon the State can use against anyone it pleases: to coerce compliance in whatever direction it pleases.

     That is completely opposite to the conception of the process for ensuring justice that the United States inherited from Britain two and a half centuries ago.

     But David Lammy, Britain’s “Secretary of State for Justice,” insists that there’s no other way to “unclog” Britain’s courts. Notably, he claims that his “reform” is victim-oriented: i.e., that the elimination of the jury will result in the “right” verdicts more often, faster, and with appropriate relief to the victimized. Never mind the other consequences I’ve delineated here. The judges can be trusted to get it right.

     If Parliament allows Lammy to get away with this abridgement of Britons’ rights, it’s all over for the denizens of the Sceptered Isle. Having their right to bear arms taken from them, the British State can now ride roughshod over them. However many pitchforks Britons still possess, they would not suffice to bring down that all-powerful edifice.

Edges

     "A man once said to the universe, 'Sir, I exist.'
     'However,' replied the universe, 'that fact has not created in me a sense of obligation.'"

     [Stephen Crane]

     “Utopia is not one of the options” – David Bergland

     The wave of detentions and deportations are having an effect that could easily have been predicted:

A 79-year-old grandfather, in the United States since he was five, was detained by ICE for not complying with a deportation order issued nearly 60 years ago.https://t.co/7QwjcNQN3s

— reason (@reason) November 28, 2025

     Did no one expect that some such cases would arise? I knew they were coming. I also knew that opponents of the deportation policy would strive to capitalize on them. That’s politics, Gentle Reader.

     The above is only one. There are surely others. But that’s in the nature of a rule-based system.

---

     Charles Murray noted in his early work Losing Ground that no matter the “rules,” a rule-based system – i.e., the kind of policy whose decisions could be programmed, given the appropriate dataset – will always irrationally include some cases it should exclude and / or exclude others it should include. He was analyzing welfare policy, but the effect touches every kind of policy a law-based State might implement. The deportation orders President Trump has implemented are no exceptions.

     Every law creates a rule-based system. Even a law as simple as the one against burglary will have edge cases of the sort that make an observer say “That isn’t just.” (I happen to know someone who was snagged on such an edge.) Occasionally, legislators will try to install provisions in the law, or in the system that will implement and enforce it, to “soften” its edges. But that’s not always possible.

     Prosecutorial and judicial discretion soften the edges of the penal law. Those provisions allow human judgment to temper the applications of the penal law. They were undoubtedly well meant. Yet they too have their drawbacks, as politically-minded prosecutors and judges have demonstrated for us recently.

     The quote from David Bergland above covers all such matters. That’s why the appropriate way to evaluate a law or policy is “Has it made things better or worse?” Perfection in law is no more available than perfection in Mankind.

---

     I could go on for days about this. It’s inherent in the nature of things, for a simple and unchangeable reason:

All actions have side effects.
One or more will always be undesirable.

     Physicists call this the Second Law of Thermodynamics. It operates at all scales and in all things. Law and its enforcement are not exceptions.

     To close: Another argument has arisen over the decision of many states to decriminalize the use of cannabis-based products (e.g., marijuana). This has surely had both desirable and undesirable consequences. Some see the negatives as outweighing the positives. It’s unfortunate that there are negative side effects, but whether they mandate returning to the previous state of affairs is a matter for legislators to decide. Should they decide that way, we would shed those undesirable side effects... but we would also lose the positive consequences of cannabis decriminalization: the decreased burdens on law enforcement and corrective institutions, the extra tax revenue, and so forth.

     Edges are like that. They’re never perfect and they’re never infinitely sharp. There will always be persons who seek a way to exploit them for personal benefit.

     It’s a cruel cosmos. But as I typed that, I realized that I need more coffee. Perhaps I’ll be back later.

“Lawful Resistance”

     A cocky chum stepped forward--one who had to be sent for twice. "You can't do this! It's against the law!"
     "What law, Gospodin? Some law back in your hometown?" I turned. "Finn, show him law."
     Finn stepped forward and placed emission bell of gun at man's belly button.

     [Robert A. Heinlein, The Moon is a Harsh Mistress]

     Heinlein’s novel of revolt against unwarranted authority and its excesses is a classic of Twentieth-Century speculative fiction. It’s also one of the most instructive novels of that era – and the passage above is a sterling example of what it has to offer. “What law?” is the question of the hour. Indeed, we should have been asking it a year ago, when “the authorities” refused to act against rampaging mobs that destroyed billions of dollars’ worth of others’ property and rendered a number of American cities near to uninhabitable. The refusal to act implicitly declared that there are two laws: one for those whose actions advance the agenda of the political elite; the other for the rest of us grubby peons.

     But if there are “two laws,” is there law at all? Law in the American sense? More to the point, what’s the point of trying to act “lawfully,” if “the authorities” can suspend, alter, abridge, or dismiss the law when it suits their purposes or the purposes of their backers?

     I must dismiss the myriad calls for “lawful resistance” to the Usurpers. I appreciate the sentiments and the intent, but those who exhort us thus are living in an America that no longer exists.

     The time for prissiness about “the law” is past. It isn’t even visible in the rear-view mirror. Whether we like it or not, what matters today is the ability to impose your will upon your circumstances: in other words, the possession of force majeure in your personal context.

     Every other notion of “law” is someone’s fantasy. Ask Ashli Babbitt.

---

     I didn’t want to write the above. My personal inclination is to get along, rather than to trigger a confrontation. But we’re at the culmination of “a long train of abuses.” We have a Usurper Administration looming ahead of us. And it has already been made quite plain that the Usurpers and their Big Tech allies intend our subjugation.

     You doubt that? Consider this story:

     On Monday, Facebook blocked former presidential candidate Ron Paul from his own page. The move came hours after the longtime congressman and libertarian hero shared an article he wrote criticizing Twitter and Facebook for banning President Donald Trump from their platforms.

     “Last week’s massive social media purges – starting with President Trump’s permanent ban from Twitter and other outlets – was shocking and chilling, particularly to those of us who value free expression and the free exchange of ideas,” Paul wrote. “The justifications given for the silencing of wide swaths of public opinion made no sense and the process was anything but transparent. Nowhere in President Trump’s two ‘offending’ Tweets, for example, was a call for violence expressed explicitly or implicitly. It was a classic example of sentence first, verdict later.”

     Paul shared the article on Facebook sometime around 10 a.m. EST. Hours later, on Twitter, Paul said he had been blocked by Facebook.

     “With no explanation other than ‘repeatedly going against our community standards,’ Facebook has blocked me from managing my page,” Paul announced on Twitter. “Never have we received notice of violating community standards in the past and nowhere is the offending post identified.”

     Dr. Paul, a widely admired former Congressman, is 85 years old. He’s been a major figure in the liberty movement for nearly fifty years. I worked for his campaign in 1988, when he was a candidate for President. Senator Rand Paul of Kentucky is his son. To cut off his communications with his many followers achieves...what? For whom?

     The irony of Facebook blocking Dr. Paul’s page because he dared to criticize Big Tech censorship is just a rotted cherry atop the fetid sundae.

     As I’ve written before, the essential requirements for the maintenance of freedom are education, communications, and weaponry. Big Tech is enlisted with the Usurper forces, and is steadily severing our ability to find and communicate with one another. The Usurper Administration has already made it clear that it intends to take our weapons. It’s also proclaimed the “necessity” of renewed “lockdowns,” to smother what remains of our economic and social vitality. Law? What law? Some law from back in the Cleveland Administration?

---

     In one of the less well considered things he wrote in The Law, Frederic Bastiat said that “Law is justice.” No, sorry, dear departed Frederic, law is nothing of the sort. At its best, it’s a statement of intentions we’re supposed to believe will conduce to justice. But the reality is often a good distance from the ideal.

     Many are the laws that go unenforced, or are selectively enforced according to the whim of “the authorities.” Many are the laws written to target particular institutions or individuals, who are thus made “enemies of the state” in fact if not in name. Many are the laws written so obscurely that even those who wrote them cannot explain their intent nor their effect. Many are the laws that have advanced injustice rather than justice.

     When those who claim to represent the law decide, arbitrarily, when it applies and what degree of enforcement it deserves, then there is no law. When they decide, for whatever reason, that the law binds some persons but not others, then there is no law. When the law is written in such a fashion that no one can be certain what it compels or forbids, then there is no law. And when the law is “interpreted” to override the natural rights of individuals to their lives, liberties, and honestly acquired properties, then there is no law.

     The rest is left as an exercise for my Gentle Readers.

The Only Basis Upon Which Legislated Law Can Rest

     Quoth philosopher of law Lon Fuller:

     If we accept the view that the central purpose of law is to furnish baselines for human interaction, it then becomes apparent why the existence of enacted law as an effectively functioning system depends upon the establishment of stable interactional expectancies between lawgiver and subject. On the one hand, the lawgiver must be able to anticipate what the citizenry as a whole will accept as law and generally observe the body of rules he has promulgated. On the other hand, the legal subject must be able to anticipate that government will itself abide by its own declared rules. . . . A gross failure in the realization of either of these anticipations—of government toward citizens and of citizens toward government—can have the result that the most carefully drafted code will fail to become a functioning system of law.

     [Lon Fuller, The Principles of Social Order]

     A system with two tiers of citizens – one subject to the law, the other above it and immune to it – is inherently unstable. When the “tier above the law” consists of public officials – executives, legislators, judges, appointees, civil servants – the instability is magnified by the evident injustice: “Rules for thee but not for me.” It will topple, or it will be toppled. So are conditions in these United States as matters currently stand.

War And Its Law

     Amid all the caterwauling from the Left about how awful it was that President Trump dared to execute Qassem Soleimani, the most fatuous emissions probably came from Speaker of the House Nancy Pelosi, who called the strike “unauthorized,” and therefore illegal:

     The Administration has conducted tonight’s strikes in Iraq targeting high-level Iranian military officials and killing Iranian Quds Force Commander Qasem Soleimani without an Authorization for Use of Military Force (AUMF) against Iran. Further, this action was taken without the consultation of the Congress.

     As it happens, there was authorization that covered the strike, though Pelosi, being rather addled at this point in her degeneration, has probably forgotten it:

     Barack Obama’s former DHS Secretary told Chuck Todd on ‘Meet the Press’ that Qassem Soleimani was a “lawful military objective” and the President had “ample domestic legal authority to take him out.”

     Former Secretary Jeh Johnson leaves open the possibility that the terror general wasn’t a terrorist, but even then, he states he was a “lawful military target.”

     Soleimani and his Quds Forces were declared terrorists by the United States in 2007 and Barack Obama never sought to change the designation.

     So much for that. But beyond that, there is this: Iran has been at war with the United States, by declaration of its parliament, since 1979. During declared war, any recognized combatant anywhere is a lawful military target under the law of war as it’s been understood since the Treaties of Westphalia. Moreover, under those same understandings, which have been codified in the Geneva Conventions, one who makes war on non-combatants is a war criminal eligible for a battlefield execution – and Qassem Soleimani had provably done that on more than one occasion.

     But these observations invite further thought, specifically about the law of war and the principles behind it.

---

     Tom Kratman’s excellent novel A Desert Called Peace, which opens his Terra Nova / Carreraverse series, contains a great deal of pithy commentary on war and its law. The following passage is particularly relevant to the events of the week behind us:

     "As you probably know, there is, over on the continent of Taurus, a fairly new court, the Cosmopolitan Criminal Court, or CCC. This court purports to have universal jurisdiction over certain crimes, much as any nation's courts have jurisdiction over piracy at sea. Without going into the merits of this 'universal jurisdiction' here, let me ask you what the CCC could have done to you, or to the Sumeris, that was one whit worse than what was done here today? The answer, as I am sure you are all aware, is precisely nothing. Courts are for civilized circumstances where people can be deterred by punishment. There is nothing any court can do to anyone, and even what it could do it cannot do very quickly, that even begins to approach what we do to each other in war, routinely. The CCC, or any similar court, is toothless as far as furthering its stated purpose. It might be effective, mind you, at its true purpose which is undermining national sovereignty and the ability of the civilized world to defend itself from barbarism. That, however, is the subject for another day.
     "What is important for this day is that the law of war—customary, statutory, or common—cannot be enforced by any court, ever. Because we live in an anarchic system of sovereign states, and because the stakes in war are so high, the only thing that can enforce the law of war is the law of war itself. To do this it has one recourse: reprisal. Reprisal, which I am sure you are familiar with because Tribune Puente-Pequeño, your law of war instructor, told you about it— I've heard him, is a war crime, or conduct that would ordinarily be a war crime, but which becomes legal and legitimate in order to counter or deter an enemy from violating the law of war. It is all we have, all the world has, to make the law of war work.
     "Thus, I ordered you to reprise for the murder of our men. Thus," and here Carrera stopped for a moment and pointed skyward where three Turbo-Finch Avengers were winging it northward, "I have ordered leaflets prepared, in Arabic, to be dropped ahead of our forces, to let the enemy know what we have done and to explain to him the laws which he must follow in the future if he wishes to avoid a repetition. Thus," and his finger pointed at the pressies, still standing in clueless (which Carrera was certain was their natural state) shock (at being treated with open contempt), "I had those . . . people brought here so that they, too, can spread the word. Let everyone know that if you commit a crime against the Legio del Cid then punishment will be immediate and frightful."

     Perfect from first to last. Note especially Carrera’s observation that “we live in an anarchic system of sovereign states.” I’ve made the same comment:

     The States of Earth exist in an anarchic relation to one another. Each has its own regional code of law, which might differ markedly from all the others. Despite several thrusts at the matter over the centuries, there is no “super-State” to enforce a uniform code of law over them all. More, they view one another as competitors in many different areas; their populations and institutions are often in sharp economic competition with one another. Thus, they are often at odds. They resolve important disputes among them through negotiation or warfare.

     As war is a phenomenon that occurs between or among sovereign states – the key word here being sovereign — there is no alternative to warfare when negotiation fails. In the midst of a war already in progress, war itself is the enforcement mechanism for the law that remains.

     It simply cannot be otherwise.

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     War, speaking in Westphalian terms, is an organized attempt by one state to impose its will on another through violence. In that regard it can seem distinct from what we call “terrorism,” which often appears divorced from the intentions or actions of any state. Yet the distinction is illusory. An organized force that declares itself, by word or by deed, to be above the penal laws that prevail in a given jurisdiction has declared itself, de facto, to be a sovereignty, and therefore unaccountable to the laws promulgated by others. Under circumstances entirely confined to the territory of the United States, we tend to treat persons who commit terrorist acts as simple criminals. When apprehended, they’re referred to the justice system. When such a force acts beyond our shores, we cannot take that approach. We must regard the actors just as we would a hostile sovereignty, and act accordingly: i.e., according to the laws of war.

     Let the execution of Qassem Soleimani, not the Obamunist kowtowing to and appeasement of those who hate us and wish us ill, serve as the pattern for future dealings with them. Either they will “get the lesson” or they will die – and in either case Americans’ interests will be properly served.

Ready And Able...But Willing?

     Never before has there been as much “official force” in America as there is today. It comes in many forms:

• active-duty military;
• military reserves (i.e., National Guard);
• federal law enforcement agencies;
• state police;
• local police;
• lots of federal, state, and local government employees who go about their daily business armed.

     Some of these are “obvious;” others are not. For an example of the unobvious kind, were you aware that field agents of the U.S. Department of Agriculture routinely go armed? How about those of the Environmental Protection Agency? It’s true, in both cases.

     It happened quietly, as with most threatening moves by governments. To have done it noisily, with nationwide announcements that “Henceforward, agents of the Department of XXX will routinely go armed on their daily rounds” would have queered the deal. Americans would have demanded an explanation – and in all probability we would not have accepted whatever we were offered.

     Yet here we are. Moreover, it could have been foreseen, for a simple reason: there’s far more law in America than ever before. Law engenders law enforcement – emphasis on force.

     The fundamental fact about law is that it is meaningless unless enforced. I’ve written before about the pernicious nature of an unenforced law:

     An unenforced law is among the most insidious of all political things. First, it weakens respect for all law. Second, it muddies the predictability of events. Third and perhaps worst, it gives the politicians a rationale for moving against anyone unwise enough to act as if the law had been repealed.

     It’s dangerous for other reasons, too:

     In essence, the law as it genuinely affects the lives of Americans is that subset of the de jure laws – i.e., the laws passed by Congress or the state or local legislature – which is effectively enforced: the law de facto. Why, after all, would anyone care overly much about unenforced laws?

     (In point of fact, there is a reason to concern oneself about an unenforced law: it’s available to be used against those the political elite dislikes. Consider that before arbitrarily dismissing unenforced laws such as Andrew Cuomo’s “SAFE Act.” However, in practice only those laws that are actively enforced are pertinent to the private citizen...at least, as long as he keeps his head down.)

     So when we see a government moving to enact a law aimed at persons who’ve already announced their unwillingness to comply with it, there is reason for more than academic concern.

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     The unwillingness of Virginia’s gun owners to comply with the anti-gun laws the Democrat-dominated state government has proposed (and is overwhelmingly likely to enact) is on open display. All but a handful of Virginia’s counties have declared themselves Second Amendment Sanctuaries prepared to defy any such laws. Yet Governor Ralph Northam and Virginia’s Democrat legislators appear unwilling to back away from their anti-gunnery. Thus the stage is set for a confrontation.

     Something like this occurred in New York State at the time Governor Andrew Cuomo rammed the “SAFE Act” through the state legislature. Not one sheriff in the state was willing to enforce the terms of that law. The law has gone unenforced...yet it remains on New York’s books. It remains available for selective enforcement, should the mandarins of the Empire State decide to use it:

     At its base, law -- legislated law, not natural law, religious law, or any other sort -- is a statement of intent. If this happens, these shall be the consequences. While law is sufficiently widely and deeply respected, it also functions as a way to predict what will follow from certain well-defined actions taken in relevant contexts. But when that respect has attenuated below the required threshold, such predictions become worthless. Non-enforcement against privileged persons and selective enforcement according to political priorities render the words of the law meaningless. The Rule of Law becomes meaningless as well.

     What shall we make of the Fourteenth Amendment’s guarantee of “equal protection?” Can there be such a thing when laws go unenforced but remain nominally “in force?” Suppose for a moment that such a law has been “in force” for decades but has never been enforced. Would you call it harmless? I wouldn’t.

     I have a dear friend, a shooting enthusiast with a lot of guns, including several the Northam proposals target, who lives in Virginia. Would you counsel her to relax? Would you do so after ten years of non-enforcement? How about twenty?

     The unwillingness of today’s myrmidons does not guarantee a continuity of that attitude among their successors.

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     The joker in Virginia’s deck is this: Suppose Northam mobilizes the Virginia National Guard and directs its commanders to enforce his new anti-gun laws. Suppose, moreover, that the commanders comply, and that the troops offer no significant resistance to their orders. Alternately, suppose Virginia’s state police are dispatched to effectuate the law. What then?

     Have some thoughts from Matt Bracken:

     [E]ven if the Virginia governor was given the go-ahead by the SCOTUS, and even if the present demographic shift in Virginia (based on mass immigration) continues to favor the Democrats in future elections, if any significant percentage of Virginians consider gun confiscation raids to be unconstitutional and worth resisting, make no mistake, there will be armed resistance. Many millions of Americans, including Virginians, consider mandatory gun registration (much less confiscation!) to be a necessary first step on the path to socialist tyranny, boxcars, gulags, and worse. If and when widespread gun confiscation begins, even under the cover of so-called “red flag” laws, or following the refusal of Virginians to comply with gun registration mandates, there will be a civil war.

     Bracken sounds quite certain, doesn’t he? If he’s correct, it would be the start of a conflagration guaranteed to spread across the lower 48 states. It would have the effect of pitching the lower-density population regions against the more urbanized ones. Under those conditions, the defenders of the right to keep and bear arms would have a considerable advantage:

     The geography and topography of much of Virginia means that convoys of police cars and SUVs on gun confiscation missions will be forced to travel through labyrinthine terrain on their way to and from their objectives. After a few bloody (and all-too predictable) gun raid outcomes along the lines of Ruby Ridge or Waco, at least some Virginians will not simply wait for another law enforcement (LE) convoy to arrive unmolested on their street for the next set-piece gun confiscation raid. These LE convoys will be readily identifiable far in advance of their gun raid objectives, and in the event that this constitutional struggle over the Second Amendment turns kinetic, these confiscation convoys will be taken under accurate long-range fire from hidden marksmen on the way to or returning from their objectives.

     Bracken is talking specifically about Virginia and Virginians, but his analysis generalizes to many other parts of the nation. Moreover:

     I’m simply not aware of any previous civil war where tens of thousands of aggrieved citizens began the struggle armed with rifles capable of making 500 yard and greater precision shots. This is an equation changer. Gun raids will not be possible for long if law enforcement convoys are taken under accurate fire en-route to and from gun confiscation operations, and roadside car-search checkpoint duty becomes a suicide mission. Never forget what happened to the British redcoats on the famous 1775 gun confiscation raids at Concord and Lexington, and perhaps more importantly, remember what happened to them during their retreat to Boston.

     Should both sides exhibit equal willingness to fight, I cannot gainsay Bracken’s analysis. However, the balance of that critical factor can only be known once it’s been demonstrated.

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     The ultimate determinant of any possible confrontation is willingness: the willingness of the attacker to press the issue versus the willingness of the defender to stand fast. Wars great and small are won not by body counts or bomb damage assessments, but by breaking the enemy’s will. If the Virginia Democrats conclude that their probing bayonet has met steel, whether before or after any attempts at enforcement, the defenders of Virginians’ Second Amendment rights will prevail. But should those defenders’ will to resist slacken – should they decide that they’re unwilling to court (more) bloodshed – the anti-gunners will win. And there is a middle case that ultimately might prove more troublesome than the “extremes:” the anti-gunners might refrain from active enforcement, but the anti-gun laws remain in force de jure, to trouble and intimidate Virginians present and future through targeted investigations and selective enforcement.

     Keep your eye on the Commonwealth of Virginia.

Portentous Phrase Pugilism

     I managed to misplace this Angelo Codevilla piece when it first appeared – possibly because of my travails with the Brave browser – but thanks to Mike Hendrix it’s come back to mind.

     As with all Codevilla’s essays it’s a worthy read from first to last, but there are two segments I feel compelled to cite in particular. The first one:

     William Webster, the only person ever to have headed both FBI and CIA, seized that opportunity with an op-ed in the New York Times, in which he claims both agencies acted to protect “the rule of law,” and that they should continue to do so. That claim abstracts from the undeniable—and undenied—clash between the FBI and CIA’s anti-Trump campaign and current law.

     Hold on tight to that well-focused little paragraph, because it’s “one” of a one-two punch. Codevilla trashes Webster’s claim in a few nicely pointed sentences, and arrives here:

     In short, Webster’s “rule of law” amounts to the assertion that he and people like himself are the law. Hence, to criticize them is to criticize the rule of law.

     Got you right on the chin, didn’t it? Codevilla’s argument is simplicity itself. The Supreme Law – the Fourth Amendment – requires probable cause for a search warrant of any sort. Even if the Foreign Intelligence Surveillance Act (FISA) permitted the use of unverified, slanderous allegations as adequate grounding for surveillance – it doesn’t – it does not override the Fourth Amendment requirements. It can’t.

     Ergo, Webster’s claim about “the rule of law” is a complete falsehood: one hundred eighty degrees from the truth. Anyone with the vaguest acquaintance with the Bill of Rights should see it at once. So why did he make it?

     Heh, heh, heh!

---

     Allow me a seeming tangent. The genuinely excellent movie God’s Not Dead contains two scenes of striking relevance here. In the first of these, a college freshman struggling to defend the tenability of his belief in God to a philosophy class confronts a statement by physicist Stephen Hawking:

     In the second, the student counter-thrusts against Hawking’s statement with a reciprocal logical technique:

     In the first scene, the snooty Professor Radisson (played by Kevin Sorbo), submits an argument from authority: that is, he invokes Stephen Hawking’s prestige in physics as the basis for his thrust. He even attempts to amplify it by calling Hawking “the greatest genius in history,” which he was not. In the second clip, freshman Josh Wheaton (played by Shane Harper) counter-thrusts with a second authority of greater relevance – John Lennox, a professor of mathematics and philosophy – setting Professor Radisson’s “argument” at naught.

     An “argument from authority” is not an argument. It’s an implicit claim that the question under discussion has been definitively answered, but it is not an answer. You’d think the difference “should” be “obvious.” Yet to many people, it isn’t obvious at all.

---

     William Webster was (at separate times) the head of two prestigious federal agencies. That’s the source of whatever “authority” he wields. Yet neither of those posts has any bearing on “the rule of law.” That phrase has been bruited about by the Democrats in Congress as if it were a complete argument for their crusade against President Trump. Yet it is nothing of the sort. It is, however, what R. A. Lafferty once called “a good round thumping phrase:” the sort that can be used as a bludgeon against those who react to such formulations without thinking.

     The careless slinging of portentous phrases has done a great deal of harm to public discourse. “The rule of law,” which is merely shorthand for the principle that no one shall be deemed exempt from the law’s requirements simply because of who he is or what stature he may have achieved, is one such phrase. Another, which I’ve already torn to shreds, is “national security.” Neither phrase is an argument of any kind, no matter whose mouth pours it forth.

     If you’re an habitué of the talking-head shows, I suggest you start a little journal. Include in it, as far as possible, all the instances you encounter of portentous phrases being submitted as arguments. Note who did so, what sort of “authority” he claims, and which edge of his axe he was trying to grind. Take special note of the use of one portentous phrase to counter another; such occasions can provide amusement of a unique variety. After a week keeping track of these things, you’ll be an authority of a sort yourself: on the vacuity of discourse as practiced by partisans and would-be “experts.” Who knows? A dissertation on the subject might get your authority officially recognized...especially if you contrive to include as many “good round thumping phrases” as the subjects of your analysis.

     What’s that? You think I should undertake this effort? Sorry, I have a novel to finish. But do have a nice day. (:-)

Quickies: A Fourth Amendment Conundrum

     Automobiles in public places have long been objects of legal controversy. Cops are eager to have them treated as outside the protections of the Fourth Amendment. However, current case law holds that without probable cause that a crime has been committed or is in the process of commission, a privately owned car is as protected against arbitrary search and seizure as is any privately owned building. One of the consequences is a form of police misconduct that’s very difficult to prosecute: the convenient “I smell marijuana” allegation. Cops have often used that dodge to compel a private citizen to submit to a search of his vehicle and person.

     But recently, something new has been added to the mix:

     Back in 2012, the US Supreme Court ruled that it's illegal for the police to attach a GPS tracking device to someone's car without a warrant. But what if you find a GPS tracking device on your car? Can you remove it? A little more than a year ago, the state of Indiana charged a suspected drug dealer [Derek Heuring] with theft for removing a government-owned GPS tracking device from his SUV. This month, the state's Supreme Court began considering the case, and some justices seemed skeptical of the government's argument. "I'm really struggling with how is that theft," said Justice Steven David during recent oral arguments.

     At trial, Heuring's legal team argued that the search had been illegal because the police didn't have probable cause to believe their client had committed theft. The defense pointed out that the device could have fallen off the car by accident or simply malfunctioned. Even if Heuring did take the device off the vehicle, he couldn't have known for sure that it belonged to the government. It wasn't exactly labeled as the property of the Warrick County Sheriff's Office. Most important, it's not clear that taking an unwanted device off your car is theft -- even if you know who it belongs to. With the case now at the state Supreme Court, the stakes are high. If Heuring can show that the police lacked probable cause to search his house, he could get all of the evidence gathered in the search thrown out -- not only evidence of GPS device theft, but evidence of drug dealing, too.

     It would certainly be ruled a Fourth Amendment violation were the police to attach a listening device to the wall of a private home. How is putting a GPS tracker on a private vehicle materially different? Though I doubt it, perhaps the state of Indiana will have a novel argument that sidesteps existing case law about the privacy protections of such vehicles. But no matter the verdict, the case will have implications for other police practices.

     For example, consider the “Denver boot:” a device used to immobilize a car or truck, the removal of which only occurs after the vehicle’s owner has paid a fine. So far, the use of such devices has not been successfully challenged in court. But should the placement of a GPS tracker on a car be ruled illegal, the underlying principle might extend far enough that the vehicle owner could destroy the boot, freeing his vehicle without legal penalty.

     This is a case worth watching.

The Limits Of The Law

     Legislatures will legislate about anything. it’s why there are so many nonsense laws on the books. Every so often you’ll find a list of some of the sillier ones on the Web. Here’s one such.

     (I had no idea it was illegal to slurp soup in New York! I’d better augment the Fortress’s soundproofing right away.)

     It’s characteristic of such laws that no attempt is made to enforce them. (Why they were never repealed is a separate subject.) In some cases, the authorities know the law is silly and would prefer not to look ridiculous...well, all right, more ridiculous. In others, enforcement would be impossible for various reasons. Often what makes enforcement impossible is the Fourth Amendment to the Constitution of the United States:

     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.

     Note the wording: shall not be violated. This style of construction indicates that the prohibition applies to every level of government. Compare it to the construction of the First Amendment:

     Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

     This amendment prohibits Congress from interfering with religion, expression, and peaceable assembly, no other level. That was quite deliberate, as several of the states had established churches and censorship laws at the time of the ratification of the Bill of Rights. Those states would not have agreed to the Bill of Rights had it invalidated their existing laws on those subjects.

     I made note of the privacy-preserving power of the Fourth Amendment in The Wise and the Mad:

     “I’ve been told that a wise man once said that ‘love laughs at hardware,’” Holly said. “I know the sort of love Heidi and Roland chose to enjoy isn’t to everyone’s taste. It’s not that long since it was illegal, both here and in the U.K. Oscar Wilde went to prison for it, did he not?”
     “He did,” Walsingham said.
     “Is sodomy still against the law across the water?”
     “That law was overturned quite some time ago,” he said. “There have been attempts to have it reinstated, but all have failed.”
     “It’s the same here, and just as well,” Holly said. “There can be no pretense of autonomy or personal privacy in a land where the private bodily conduct of consenting individuals is a fit subject for the attention of the police.”
     Walsingham’s face worked. “That is the usual argument. Yet there are many who regard the maintenance of society’s moral standards to be of greater importance.”
     “I know. It’s unclear to some how utterly impossible it is to have both individual freedom and legally enforced sexual standards at once. The Constitution was the touchstone for reform here, particularly the Fourth Amendment. But America has groups demanding the return of the old laws, too.”

     Those “groups demanding the return of the old laws” will fail for the reason given immediately above. On net balance, that’s a good thing...but in some cases, not everyone will agree.

---

     There’s a rising tide of pro-life / anti-abortion sentiment, which is all to the good. The carnage of abortion has reaped at least fifty million defenseless lives in this country alone, and has helped to corrupt relations between the sexes simultaneously. But no matter how strong that tide becomes, there will be abortions of a certain kind that will escape scrutiny, and therefore any attempt to ban or restrict them by law. The Fourth Amendment is the reason.

     If Miss Smith is the only person aware that she’s pregnant – a common condition in the first couple of months of a pregnancy – she and compliant Doctor Jones can arrange for a dilation and curettage (D&C) abortion with no one else aware that it’s taken place. Such abortions took place long before Roe v. Wade, without legal consequences. There’s no way to prevent them through the law.

     Think about what it would take to ensure that Miss Smith’s condition could not be concealed. Even the most invasive scheme for bodily monitoring would be uncertain at best – but more to the point, it would be a Fourth Amendment violation. Nor could the abortion be detected through any monitoring of Doctor Jones, as the D&C procedure is also a treatment for certain menstrual disorders. If both were to remain discreet, they would be safe from any attempt to prosecute them, regardless of how the law is drawn.

     President George W. Bush, in his early remarks about the importance of building a “culture of life,” was undoubtedly aware of this. While no law would prevent Miss Smith’s abortion, her own conscience could do so, if it were equipped with knowledge of the sanctity of human life. A culture of life would be one in which Miss Smith had absorbed that knowledge and incorporated it into her moral foundation.

     (This is in part what Catholics mean by the importance of a properly formed conscience. We’re all amoral savages from birth to about age seven. We have to be taught not to kill and eat our playmates or kidnap their little sisters for “a bit of fun.” In most households those lessons normally come right after the one about not putting your elbows on the table.)

     So even in the most severe imaginable legal regime, there would be some abortions that the law could not touch. Though it might horrify my Gentle Readers, we should be grateful for the Constitutional constraints that make it so.

---

     The law has limits. Congress cannot outlaw bad weather, the demands of the “global warming / climate change” flacksters notwithstanding. Neither can it police the entirely private conduct of individuals without transgressing the Fourth Amendment. Finally, the common-law tradition of the presumption of innocence protects individuals from prosecution for unspecified crimes and accusations in the absence of a demonstrable crime.

     Some people dislike those constraints. Others argue that the law has more than one function – that it can also be used to “send a message.” The technical term for such persons is “fools.” A law that cannot be enforced, whatever the reason, weakens the public’s respect for the law and the lawmaking authority. We’re already seeing this play out with unenforceable anti-firearms laws in several states, including New York. We’ve seen it nationwide in the cases of alcohol prohibition and the War on Drugs. In the worst cases, an unenforceable law can foment a rebellion.

     Fortunately, the Constitution is very hard to amend. The older Constitutional provisions are hardest of all to change, thank God. The Fourth and Fifth Amendments are among the oldest. If you’ve wondered why Kelo v. New London raised such an uproar, or why the National Popular Vote Compact has so many tempers flaring, now you know.

     It is empirically well established that a law that more than 2% of the public is willing to violate is unenforceable de facto. Just now, at least a third of the public would willingly violate any anti-abortion statute. We who cherish innocent human life might chafe at that, but it’s the way things are.

     So the pro-life advocate’s first duty is to build a culture of life. With such a culture in place, laws against detectable abortions could have some practical effect. But even were we successful beyond all hope, there would still be some abortions. They would go unpunished for the reasons set out here. Legislated law and human law enforcement are not all-powerful. Despite this unfortunate aspect, that’s something for which we should be grateful.

An Excellent Article For Gun Owners (And Damned Near Everyone Else)

     Alex at Ammo.com has alerted me to another excellent article at the site:

Locked Up:
How the Modern Prison-Industrial Complex
Puts So Many Americans in Jail

     Give it a look. There’s a lot of important data in it.

Quickies: The Great “We Are The State”

     Recently a brief piece appeared at Hot Air that asks “Does The Right To Self-Defense Apply Against Agents Of The State?” This is not the question many would suppose it to be.

     In a de facto sense, the attempt to defend yourself against agents of the State is more likely than not to get you killed. Normally when they come for you, they come unannounced and with force majeure, such that the odds are heavily against you from the outset. However, in a de jure sense, if you had no right to defend yourself against an agent or agents of the State, then you would have no rights of any kind.

     This question must not be muddled up with the separate subject of “sovereign immunity,” an obscenity with which the courts have refused to treat as it deserves. Your right to defend yourself pertains to your actions, not those of the persons against whom you choose to defend yourself. If a law enforcement officer, or any other government employee, were to attempt to use deadly force against you for a reason or in a situation not sanctioned by the constraints applied by the Fourth and Fifth Amendments, and you were to defend yourself successfully — i.e., at the end of the exchange you’re alive but he isn’t – you would have a perfect case for self-defense against a criminal. A criminal is no less a criminal because he possesses a badge.

     There would still be unpleasantness to endure. You would almost certainly be arrested and forced to defend yourself in court. But assuming that testimony and circumstantial evidence were to bear out your claims, you would be acquitted. And that is as it must be.

     But should a LEO come to arrest you for some offense for which he has a valid warrant or an in-person complaint, you’re much more likely to survive if you go along peacefully.

I Didn’t Expect To Post Even Twice Today...

     ...but here I am with a third piece for this last day of November.

     First, please view the video below. It’s quite short. (Feel free to stop when you get to the promo for D’Souza’s recent movie.)

     The conception of “a moral order in the universe” goes back many centuries. Indeed, the first monotheists, the Jews of Abraham’s time, did not accept the Ten Commandments because they sounded good, but because they reflect the way the world works. Disregarding any of them leads to calamity, and sometimes to social chaos in which even the most temperate and self-restrained persons, fully aware of their obligations and ready, willing, and able to meet them, will suffer.

     God was not telling the Jews of the Book of Exodus anything they didn’t already know. He was merely codifying principles of conduct their own experiences should have taught them. That there have been millions of persons who strove to break those laws and get away with it – some of whom did succeed, in this life anyway – does not invalidate the laws themselves.

     It is noteworthy that the Ten Commandments are merely a modest extension of the Noachide Commandments of the Book of Genesis. So in Biblical terms, the meat of the moral order of the universe has a lineage that extends rather far back toward Creation.

     D’Souza is quite correct in stating that prior to world War II, at least, Americans were near-unanimous in affirming that moral law exists outside the individual. Even the most corrupt, most sybaritic American would not have dared to say “Naah, the Ten Commandments are just some asshole’s opinions.” Even those who chafed at them and strove to violate them with impunity would at minimum give them lip service – and would teach his children to observe them.

     In recent decades even the most secular of intellectuals have found that there are damned good reasons for believing that there’s a moral order in the universe.

---

     Allow me to cite one of my favorite Ralph Waldo Emerson quotations yet again:

     You cannot do wrong without suffering wrong. Justice is not postponed...Every secret is told, every crime is punished, every virtue rewarded, every wrong redressed, in silence and certainty. [From Emerson’s essay Compensation ]

     And now allow me to extend it some distance:

     This Law writes the laws of the cities and nations. It will not be baulked of its end in the smallest iota. It is in vain to build or plot or combine against it. Things refuse to be mismanaged long....Though no checks to a new evil appear, the checks exist, and will appear. If the government is cruel, the governor’s life is not safe. If you tax too high, the revenue will yield nothing. If you make the criminal code sanguinary, juries will not convict....

     The ingenuity of man has always been dedicated to the solution of one problem - how to detach the sensual sweet, the sensual bright, etc. from the moral sweet, the moral deep, the moral fair; that is, again, to cut clean off this upper surface so thin as to leave it bottomless; to get a one end, without an other end....

     We can no more halve things and get the sensual good, by itself, than we can get an inside that shall have no outside, or a light without a shadow....

     Whilst I stand in simple relations to my fellow-man, I have no displeasure in meeting him. We meet as water meets water, or as currents of air mix, with perfect diffusion and interpenetration of nature. But as soon as there is any departure from simplicity and attempt at halfness, or good for me that is not good for him, his eyes no longer seek mine; there is war between us; there is hate in him and fear in me.

     There is genius in the above. There is a recognition and an acknowledgement that Law is at work – the kind of law that enforces its own decrees. Clearly such a law is not the product of any legislature. It certainly isn’t a matter of anyone’s opinion.

---

     Now for the Ace kicker: Despite the Law as Emerson has explicated it above, some persons do – seemingly, at least – succeed in detaching “the sensual sweet, the sensual bright, etc. from the moral sweet, the moral deep, the moral fair” and getting away with it. When we realize that someone has done so, it wounds us deeply. But why? Do we envy the successful criminal? Are we saying to ourselves, in the silence of our souls, “I wish that were me” -- ?

     Some might react thus. A minority, perhaps a tiny one. But for most of us, we sense that a Law beyond any legislature’s competence has been violated – and that our culpability in not ensuring its enforcement will, sooner or later, rebound against us.

     For Man is part of the natural order.
     We have a role to play in the enforcement of the Law.
     When we slacken, or look aside, we are complicit in such a violation.

---

     The above is important for more than one reason. It reinforces the dictates of our consciences. But beyond that, it teaches us of the importance of knowing where the law must end. It’s but a short step from the above observations to the law’s limits:

If a law cannot be effectively enforced,
It must not be passed.
A law already on the books that has proved unenforceable must be repealed.

     There are many unenforceable laws here in the Land of the Formerly Free. I shall leave the completion of this exercise in sociopolitical logic as an exercise for my Gentle Readers.

Quickies: About The U.S.-Born Children Of Illegal Aliens

     Most of the time my memory functions like a junk drawer, or perhaps a disorderly basement used for the indiscriminate storage of uncategorized items. When I reach into it, I can’t be sure what I’ll get. However, it also has an active mode, in which it tosses up interesting bits that bear some relevance to whatever I’ve recently been thinking about. It just presented me with one such item.

     The item is a curious legal term: estoppel:

     Estoppel is a legal doctrine that prevents a person from adopting a position, action, or attitude, asserting a fact or a right, or prevents one from denying a fact inconsistent with an earlier position if it would result in an injury to someone else.

     Now, that’s written in legalese, which makes it a challenge for most of us English-speakers to decode. For disentanglement, hearken to the late Louis Nizer, in his legal autobiography My Life In Court, about his participation in the curious case of John Jacob Astor, the man with two legally recognized wives:

     Astor [asserted] that the Mexican divorce decree that he had obtained against Gertrude [his first wife] was void, and therefore that he was still married to her and that Dolly [his second wife] was not even his wife. He imposed a counterclaim in which he took the offensive. He asked that the court annul his marriage to Dolly because of a prior subsisting marriage. Finally, for good measure, even if he lost his other contentions, he asked for an absolute divorce from Dolly on the grounds of extreme cruelty. So the issue was joined.

     We contended that Astor could not take advantage of the invalidity of the Mexican divorce because he had procured it himself and had asked Dolly to marry him on the strength of it. We invoked the ancient equitable doctrine of estoppel. One may not take advantage of his own wrong deed. He is estopped from so doing. [Emphasis added by FWP]

     Estoppel has many applications, as the citation from U.S. Legal goes on to detail. However, the moral rationale is uniform: The misbehaver must not be allowed to profit from his misbehavior.

     This might not bear upon the citizenship or lack thereof of the baby – indisputably as innocent as any party to the matter could possibly be – but it would defeat any contention by the illegal-alien parents that they’re entitled to permanent residence in the United States by virtue of having borne a child on our soil. One is forbidden to profit from one’s lawbreaking.

     Finally, to any readers Liberty’s Torch has in the United Kingdom: Happy Guy Fawkes Day! It’s always struck this revolutionary firebrand funny that our English cousins commemorate a coup attempt that failed, but hey, other places, other mores.

The Creep Of The Categories

     “The party in power is smug and arrogant. The party out of power is insane.” – Meghan McArdle, a.k.a. “Jane Galt”

     Among the older maxims of politics is to beware handing the State a new power without first reflecting on how your opponents could use it against you. For as sure as the Sun rises in the East, your opponents will return to dominance someday, and whatever powers you awarded the State will be in their hands.

     Just now, the focus is on President Trump’s choice of a replacement for retiring Supreme Court Associate Justice Anthony Kennedy. The Democrats are tearing their collective hair out over this, as now that the filibuster is a dead letter for judicial appointees, their minority status in the Senate leaves them no way to block his selection. Yet it was Senate Democrats during the Obama Administration who first attacked the filibuster – when they were in the majority and sought to confirm Obama appointees. Coulda told ‘em then, but they weren’t in a mood to listen.

     Today’s critical battles are over freedom of expression and “deplatforming.”

---

     Some folks of sound mind and generally good will are exercised about how Silicon Valley giants such as Facebook and Twitter regulate their immensely popular social-media platforms to disfavor conservatives. The complaints have been many, and a great many of them are both accurate (i.e., the things complained about really happened) and valid (i.e., only persons of conservative or libertarian bent were silenced). However, they come up against a barrier that’s proved impassable to date: the right of private property.

     So a lot of those folks have embraced the notion that those platforms could be regulated by the federal government as public accommodations. That’s the conception under which the Civil Rights Acts were deemed to hold legitimate authority over restaurants, hotels, movie theaters, and other nominally private properties. If you present your facility as “open to the public,” the logic runs, then you can be forbidden to discriminate – i.e., to provide your services to some members of the “public” but not others.

     (For those who remember the “nationwide Bell System,” the phrase common carrier might rise to mind. The concept is essentially the same, as was the federal government’s assertion of authority over it. However, in that particular case, the rationale was that the Bell System was a monopoly, protected by that same federal government. Telecom deregulation and the breakup of the Bell System put paid to that scheme, thank God.)

     Those in the Right who favor this notion are asking for trouble. Someday the balance of power will shift leftward once again. What would the Democrats – an increasingly totalitarian bunch who’ve never seen a law, a regulation, or a tax it didn’t love – do with the precedent that an Internet platform can be regulated as a public accommodation, despite being private property?

     It’s worth more than a moment’s thought.

---

     The Left isn’t blameless in this matter. It’s been a while since left-leaning courts started to rule that a private club could be forbidden to discriminate on the basis of sex. The arguments there haled back to the public accommodation concept, with a grace note: that since unrelated business transactions are often facilitated in such clubs, to forbid women to join them was also a form of economic discrimination, to which the Civil Rights Act of 1964 had already been held to apply.

     However, today, the Left’s attention is on freedom of expression, which they claim has become a new form of oppression. If you’re familiar with Herbert Marcuse’s essay “Repressive Tolerance,” you’ll recognize the contemporary Left’s argument as on all fours with his:

     To discuss tolerance in [a democratic polity] means to reexamine the issue of violence and the traditional distinction between violent and non-violent action. The discussion should not, from the beginning, be clouded by ideologies which serve the perpetuation of violence. Even in the advanced centers of civilization, violence actually prevails: it is practiced by the police, in the prisons and mental institutions, in the fight against racial minorities....

     The very notion of false tolerance, and the distinction between right and wrong limitations on tolerance, between progressive and regressive indoctrination, revolutionary and reactionary violence demands the statement of criteria for its validity. These standards must be prior to whatever constitutional and legal criteria are set up and applied in an existing society (such as 'clear and present danger', and other established definitions of civil rights and liberties), for such definitions themselves presuppose standards of freedom and repression as applicable or not applicable in the respective society....

     Liberating tolerance, then, would mean intolerance against movements from the Right and toleration of movements from the Left. As to the scope of this tolerance and intolerance: ...it would extend to the stage of action as well as of discussion and propaganda, of deed as well as of word.

     [Emphasis added by FWP.]

     Marcuse had no patience for the notions of freedom of expression and conviction as the Enlightenment thinkers conceived them. For him, they weren’t rights but privileges to be enjoyed only by those he favored:

     The whole post-fascist period is one of clear and present danger. Consequently, true pacification requires the withdrawal of tolerance before the deed, at the stage of communication in word, print, and picture. Such extreme suspension of the right of free speech and free assembly is indeed justified only if the whole of society is in extreme danger. I maintain that our society is in such an emergency situation, and that it has become the normal state of affairs. Different opinions and 'philosophies' can no longer compete peacefully for adherence and persuasion on rational grounds: the 'marketplace of ideas' is organized and delimited by those who determine the national and the individual interest....

     Withdrawal of tolerance from regressive movements before they can become active; intolerance even toward thought, opinion, and word, and finally, intolerance in the opposite direction, that is, toward the self-styled conservatives, to the political Right--these anti-democratic notions respond to the actual development of the democratic society which has destroyed the basis for universal tolerance.

     Whenever you hear some Leftist moonbat screaming about how “Hate speech is not free speech!” you’re hearing an illiterate repetition of Marcuse.

     But the Left, just as with the Right, has no idea what powers it’s contemplating investing in the State. For it could only be the State, through legislation and judicial action, that would define and delimit what constitutes protected “free speech” and unprotected “hate speech.” It could only be the State that would enforce laws or regulations that touch on them. And control of the State swings back and forth between Left and Right in an irregular and unpredictable way. But they of short time horizons take no interest in such matters.

---

     Caution in the delegation of authority to governments is an important thing. It’s why we have a written Constitution that’s difficult and time-consuming to amend. Note that the United Kingdom, which lacks a written Constitution, has descended swiftly into totalitarianism, as is evidenced by the recent arrest and incarceration of Tommy Robinson...for practicing journalism.

     Stability in the law, wrote Thomas Aquinas, is a virtue above and apart from the law itself. In a stable legal order, men can plan. They can arrange their affairs with confidence. When the law is unstable, capable of being twisted about according to fads and fashions, all planning is done with trepidation. Note how American businesses practically froze in their tracks, declining to invest or expand, during the legally unstable Obama years. Note also how the return of a conservative Administration has relieved that paralysis.

     The same guideline applies to every area of human life the law touches. Men of good will should respect the limits on their ability to see far ahead in time. They should not be too quick to shout that “There oughta be a law,” no matter what it is that currently rankles them.

Commitment

     It’s not that long ago that the several states operated insane asylums to which one could be committed – involuntarily confined for an indefinite period – through a fairly casual procedure. Actually, such facilities still exist, though they’re fewer. So do the commitment procedures, but the psychiatrists have grown considerably more reluctant to use them.

     Correlate the rate of commitments with the population trend among the “homeless.” Draw your own conclusions. The causal forces might not be determinative. But don’t imagine that there’s no relation between them.

---

     The misuses and abuses of involuntary commitment are well documented. Here’s one from 2011:

     My friend had been communicating with a mental health professional. He mentioned suicide, but had never harmed himself, made no mention of a plan, and closed the message with: "But I have to go to work. I'll call you later." Hardly seems like an emergency to me though of course I'm no expert.

     Pursuant to NY Mental Hygiene Law § 9.27, an ambulance appeared at his home and took him to an emergency room. His room was strikingly uncomfortable due to the removal of any object he might use to kill himself. While there he was lied to repeatedly by the staff. They lied to me too. They threatened him, and me. They intimidated him and discouraged him from exercising his right to a hearing. They disregarded the laws requiring them to give him proper notice of his rights....

     If you are committed against your will, you do not get read a Miranda warning and you do not have the same right to remain silent. The hospital is required to provide you with written notice of your rights and to post them conspicuously. In practice if they do so the notice is buried among other papers and there is no requirement that they make sure you understand your rights. If you choose to remain silent, your silence will be deemed a lack of cooperation with their evaluation and treatment, and will be used against you in any hearing. My friend did not receive any written notice. When I visited the rights were not posted anywhere I'd call conspicuous - I couldn't find them and I looked for them. There were places where things were posted conspicuously and the relevant rights were not there.

     If you are arrested you have the right to an attorney. If you can't afford an attorney, one will be provided for you. You are notified of this as part of the Miranda warning. Once you request an attorney, they can't question you without your attorney present.

     In involuntary commitment, there is no clear right to an attorney. There are some requirements that the Mental Hygiene Legal Service be notified and they will serve, in a sense, as your public defender. In practice you don't get to see them for a while.

     I tried to assist my friend. Hospital staff limited my access to him. They refused to allow me to be present while he was questioned.

     When my friend submitted his written request for a hearing, one of the hospital psychiatrists got right in his face and yelled at him. This treatment was not therapeutic.

     The above comes from an Albany defense lawyer. Clearly, he saw a great gulf between the rights and procedures afforded to one accused of a crime and those afforded to one deemed “a danger to himself or others.” As it happens, New York law on the subject makes plain that this is supposed to be the case:

     Section 9.27(b) describes 11 categories of persons who may request or submit an application for involuntary commitment of an individual. The list includes any person that lives with the allegedly mentally ill person, close family members, the court, the supervisor of a correctional facility, a treating psychiatrist and other professionals familiar with the individual’s lifestyle and behavior patterns. In order to be considered, the request must include written statements regarding the facts surrounding reasons for the request.

     After the request is submitted, a person may be involuntarily committed if:

• Two physicians agree and present documentation that the person has a mental illness necessitating inpatient care and treatment;
• The individual’s judgment is so impaired that he cannot understand the need for care and treatment;
• He poses a substantial threat of harm to himself or others due to his mental illness, which may include the inability to meet his needs for food, shelter, clothing, and health care or dangerous conduct and noncompliance with mental health treatment programs.

     The laws of the other forty-nine states are similar. If this isn’t a situation ready-made for massive abuses, I can’t imagine how to design one. And revelations of abuses of these systems have sufficiently embarrassed America’s “mental health professionals” to make them far more reluctant to engage in involuntary commitments than they were previously.

     But note the last condition listed immediately above: “[if] He poses a substantial threat of harm to himself or others due to his mental illness, which may include the inability to meet his needs for food, shelter, clothing, and health care or dangerous conduct and noncompliance with mental health treatment programs.” That encloses the “homeless” like a tent – something few of them possess.

     Once again: Draw your own conclusions.

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     Abuses of the commitment laws were made public in the Seventies to great public indignation. The notion that “a close family member” could say something to “a mental health professional” that might result in one’s involuntary and indefinite confinement appalled huge numbers of Americans (which might say as much about the state of our family relations as anything else). Though changes in the commitment laws and the procedures they specify were generally few and modest, psychiatrists became steadily more reluctant to initiate the process. Insane asylums (by whatever euphemism they were named) closed down in droves.

     One consequence was a tide of releases of the confined back onto the streets. Some of those persons had nowhere else to go.

     Have a few thoughts from CBD at Ace of Spades HQ, about the recent death of a homeless woman:

     What is ironic is that the majority (probably all) of the people involved and interviewed probably support the deinstitutionalization craze that has gripped America since the 1970s. I wonder whether a firm public policy of forced commitment would have helped this woman. My suspicion is that it would have. That is not to say that our institutions were wonderful, but an all-or-nothing approach makes no sense. We have moved the mentally ill out of sometimes awful psychiatric facilities into the revolving door of the street, prison and an early death.

     Collectivization of the inmates of those institutions as “mentally ill” strikes me as unwise. Some of them were surely insane (“a danger to himself or others”) and thus benefited from being confined for their own safety and well-being. But it’s likely, given the weakness of the legal protections of one compelled to undergo psychiatric examination, that some were not – that they were victims of others the law allowed to railroad them into confinement.

     Still, CBD has a point: Surely some of the “homeless” occupy our heating grates because of deinstitutionalization. This is not a matter in which the arrow of justice points unambiguously and inarguably in one and only one direction. How, then, can we distinguish those who would genuinely benefit from confinement from those who are victims of procedural abuse?

     Some final thoughts from Warren Redlich, “Albany lawyer:”

     It is idiotic that those suspected of being a danger to themselves have less rights than those suspected of actually harming others. Yes it is important to make an effort to protect people with dangerous mental health problems. But it is more important that we ensure this is not abused. Anyone subject to involuntary commitment should have at least the same rights as an arrestee.

     And thanks to Winston's comment on facebook, there's another point. When the mental health professional pulls the involuntary commitment trigger, it inherently damages the relationship. That may be necessary at times. But if the process thereafter is unfair, it further damages the relationship between the patient and the entire mental health profession. Future care for this person will be far more difficult.

     Food for thought.

The Pardon Power

     In Tom Kratman’s chilling novel Caliphate, he describes – interstitially, which is an interesting way of injecting important backstory data into a narrative – the use of the president’s pardon power to legalize assassination. The president at issue was elected in the wake of a nuclear attack by Islamists on three American cities, and is, shall we say, a bit impatient with restraint. He uses the pardon power to immunize those who kill his political enemies and other obstructors to his agenda. Indeed, at one point he effectively pre-announces pardons for persons who would do so, even though the murders haven’t yet occurred:

     In addition to the camps for males and females, President Buckman also opened camps for the political opposition, such as it was, though these were integrated. No particular effort was made to fill these camps. Instead, the administration published lengthy lists of people it considered enemies of the state. The camps were declared to be “safe zones,” where those same people would be protected from the anger of the masses.
     Implicitly, of course, Buckman was saying, “Outside of these camps, you will be murdered and we both know you will because I will pardon your killers. Inside, we will keep you alive. Or, of course, you could leave the country. And good riddance.”

     Kratman describes this in such matter-of-fact terms that one might as well be reading a newspaper account. It makes the idea all the more chilling. And while it would clearly be a moral abuse of the presidential pardon power, it would not, by a strict reading of the Constitution, be a legal one.

     Given that blatant moral abuses of the pardon power have occurred within recent memory – Bill Clinton pardoned fugitive financier Marc Rich, under multiple felony indictments, after allegedly receiving “considerations of value” from Rich’s ex-wife Denise – the subject is worthy of serious thought.

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     These days, refusals by “authority” to enforce the law as it stands are too common to bear enumeration. Despite the municipal statute against going in public with one’s face and identity concealed, the Charlottesville, VA police declined to enforce the law against Antifa. New York sheriffs are virtually unanimous in refusing to enforce Andrew Cuomo’s unConstitutional SAFE Act. Barack Hussein Obama explicitly directed the IRS not to enforce portions of the Patient Protection and Affordable Care Act (a.k.a. ObamaCare) that he found politically inconvenient. You’d almost imagine that “the law” is a set of optional guidelines “law enforcement” is preauthorized to ignore when it pleases.

     The consequences have been disastrous for Americans’ respect for the law. When the authorities are tacitly empowered to ignore the law at their discretion, what replaces the law is human opinion: the rule not of laws but of men. I’ve made my opinion of that nightmare plain:

     “Why are you so...fixated on the Constitution, Mr. Sumner? Isn’t it a little bit naive to think a document two centuries old contains all the answers to the problems of a complex modern society?”
     “Have you read it, Miss Weatherly?” Sumner’s voice remained mild.
     “Not lately, no.”
     “Then you might have forgotten that it’s the supreme law of the land. All other law and all government action must conform to it. If it needs to be revised or expanded, it contains provisions for that.”
     “A lot of people would say,” Weatherly cooed, “that we’ve done that, only informally.”
     Sumner pursed his lips and glanced down at his shoes. For a moment, Weatherly thought she might finally have scored against his infuriating self-assurance.
     “Miss Weatherly,” he said with a note of regret, “I’m a lawyer. I was raised by a lawyer. He taught me to think of the law as our most precious possession. One of the questions he repeatedly insisted that I ponder was ‘What is the law?’ Not ‘What would I like the law to be,’ but ‘What is it really, and how do I know that’s what it is?’
     “My profession, sadly, has made a practice of twisting the law to its own ends. There aren’t many lawyers left who really care what the law is, as long as they can get the results they want, when they want them. So they play the angles, and collaborate with judges who think they’re black-robed gods, and generally do whatever they can get away with to get what they want, without a moment’s regard for what it does to the knowability of the law.
     “I care. I want to know what the law is, what it permits, requires, and forbids. I want my clients to know. And the only way to reach that result is to insist that the words of the law have exact meanings, not arbitrary, impermanent interpretations that can be changed by some supercilious cretin who thinks he can prescribe and proscribe for the rest of us.
     “The Constitution is the supreme law, the foundation for all other law. If it doesn’t mean exactly what its text says—the public meanings of the words as ordinary people understand them—then no one can possibly know what it means. But if no one can know what the Constitution means, then no one can know whether any other law conforms to it. At that point, all that matters is the will of whoever’s in power. And that’s an exact definition of tyranny.
     “Washington was against it. Jefferson was against it. Jackson was against it. All of these men rose to the office of president. I am against it, and I seek the same office. The rest is for the voters to decide.”

     The abuse of “interpretation,” “prosecutorial discretion,” “judicial review,” and other mechanisms to subvert the plain meaning and impact of duly enacted laws has gone so far that there is no longer a “rule of law” in these United States. Harvey Silverglate made a considerable point of this in his book Three Felonies A Day. The malady may be uncorrectable...which makes what follows in this tirade too ironic for the self-respecting citizens of a supposedly Constitutional republic to bear.

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     Three days ago, President Trump pardoned former Maricopa County, AZ sheriff Joe Arpaio. Arpaio had been “convicted,” by a judge rather than a jury, of “criminal contempt.” Contempt for what? A court order that forbade him to arrest suspected illegal aliens. But illegal aliens are lawbreakers under explicit federal laws concerning immigration, ports of entry, and permissible residence in the U.S. So Arpaio had been “convicted” of the “crime” of enforcing federal law.

     For President Trump to pardon Joe Arpaio was a pure act in the defense of the rule of law – in other words, a defense of justice against tyranny. Yet he’s been assailed from one end of the political spectrum to the other for that pardon. Why?

     For the life of me, I can’t imagine it. For that matter, where on Earth would a judge of any level whatsoever find the authority for ordering a law enforcement officer not to enforce the law? A county sheriff has the same duty and authority to enforce the law as any other LEO, be the law local, municipal, state, or federal. Moreover, Sheriff Joe was supremely admired for his determination that the illegal-alien laws should be enforced in his demesne – a portion of Arizona badly beset by illegals and the crimes they facilitate.

     Quoth the redoubtable Mike Hendrix:

     Contrary to a whole passel of hysterical psychotics, Trump was more than just within his rights as President to pardon the man; in truth, he HAD to do it, lest the entire idea of justice and the rule of law be forever dismissible as no more than a bitter joke. Good for him for standing up to the monstrous tyrants of the PC Left once again. And hats off to Sheriff Joe for standing firm under the never-ending onslaught of these despicable cretins, from their jug-eared-moron Savior on down.

     I enthusiastically second this from first syllable to last – and they who seek to deny that objective, easily comprehensible and enforceable law exists because it would inconvenience them to admit it should be among our first targets for removal from any office of public trust.