The Self-Correcting System

     When you break the big laws, you do not get liberty; you do not even get anarchy. You get the small laws. – G. K. Chesterton

     The Holy Grail of all designers, no matter what they design, is the self-correcting system. Decades spent in systems design and implementation taught me how ardently such systems are pursued… and how impossible they are.

     Actually, that’s an overstatement. A self-correcting system might be possible… if it had no inputs and no outputs, and if all it ever does is correct itself. It can’t do anything else, because that would require a “monitor and correct” subsystem to monitor and correct the “worker” subsystem. That in turn would require yet another “monitor and correct” subsystem to do the same for the other subsystems, which would require yet another “monitor and correct” subsystem, which would require yet another “monitor and correct” subsystem… oh, forget it.

     Any system that couples to the world outside itself will eventually break down. A system that doesn’t couple to the outside world is useless. Toss it into Plato’s Cave and forget about it.

     Man’s societies can’t be made perfectly self-correcting. Our attempts to do so have always had vulnerabilities. The most important of those vulnerabilities – the one that’s always targeted by the agents of destruction – is the set of rules that defines what it means for the system to work.

     Some such rules are made into laws. No murder! No stealing! No contract-breaking! No false witness! Simple rules like those are widely understood. Yes, some will break them, but as long as the overwhelming majority continue to believe in and support them, that majority will serve to correct the lawbreakers.

     The society will break down if the number of rulebreakers grows so large that the work of correcting them won’t allow the normal functions of society to continue. The more correcting is required, the less time, material, and energy remain for getting other things done. Imagine a society where 50% of people are criminals and the other 50% are law enforcement.

     But that’s not the only way a society can break down. It can also fail if too many rules become laws.

* * *

     Jamie Wilson has produced a fine, compendious piece on the importance of etiquette to liberty and civilization. The heart of the matter:

     When politeness weakens, institutions compensate. They add rules and procedures and signage, training, scripts, escalation protocols, and enforcement mechanisms. This expansion is not driven by malice, but by necessity. When informal, community- and self-enforced norms fail, formal control rushes in to fill the gap.
     In high-trust environments, rules are sparse because people regulate themselves. Courtesy absorbs friction before it escalates, apologies work, discretion works, and flexibility is possible because bad faith is the exception, not the expectation.
     As trust erodes, however, discretion becomes dangerous. Zero-tolerance policies replace judgment, and escalation replaces conversation. Enforcement by bureaucracies and government structures replaces negotiation. The result is a paradox familiar to anyone living in a bureaucratized society: the more formal rules are added, the worse public behavior becomes. Not because rules are evil, but because rules cannot substitute for internal restraint.

     But “formal control” – i.e., enforcement of norms by law – can’t do the job of self-control. In the nature of things, it cannot be enough. And self-control has been under sustained attack since the end of World War I.

* * *

     Chesterton’s glum reference to the “small laws” doesn’t address the problem of enforcement. He probably felt he didn’t need to go there; it “should” be “obvious.” It’s plain enough from the history of overregulated societies.

     The dismissal of prior norms for public conduct has produced a situation in which many Americans find going out of their homes distasteful or worse. The dismissal of norms for private conduct, which many hardcore libertarians are wont to shrug aside, may be even worse. It’s especially worrisome in a society that upholds the concept of privacy as a right.

     We’ve had some ghastly examples of what can occur behind closed doors. Jeffrey Dahmer. Ed Gein. Ted Bundy. There are many others that are less famous.

     Nothing could have stopped any of those men other than a forceful invasion of their private lives. Others are among us that have similarly decided that there are no rules, and we don’t know who or where they are. We won’t know until some mistake reveals their horrors. Matters have become serious enough that we must suspect that there are many of them.

     No, I’m not suggesting that mass murderers are consequences of the failure of etiquette. But the enervation of self-control, coupled to the premise that if it’s behind closed doors, it’s alright, is what makes their infamies possible.

     The social system cannot self-correct. It requires a reinstitution of norms, and law enforcement is not equal to that task. Their origin was in faith.

* * *

     When John Adams wrote:

     Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.

     … he was expressing the premise required for a society to have both a high degree of liberty and a tolerable amount of order. For liberty to be not only possible but sustainable, the rules of order must be internal to us. They must be as self-enforcing as the law of gravity. Today, owing to the increasing disaffiliation from our previously common Christian faith and the norms it propounded, that self-enforcement has largely failed.

     See also Lynne Truss’s valuable little book Talk To The Hand.

What Is "The Law Of Nations?"

     This piece and the many others that have been written since American forces deposed Nicolas Maduro have excited questions about “international law.” The phrase is portentous but misleading. If we take as our template “law” as it comes about in parliaments and is enforced by armed agents of the State, we find ourselves unable to grapple with “laws” never legislated nor backed by specific enforcers. To give “international law” appreciable meaning, we must seek guidance elsewhere.

     Article I Section 8 of the Constitution of the United States includes this provision:

     The Congress shall have power… To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

     When the Constitution was written, “the Law of Nations” was taken to mean the body of proscriptions commonly recognized and enforced throughout those nations from which the peoples of the original thirteen states held as their heritage. Two above others were paramount:

• “Thou shalt not kill.”
• “Thou shalt not steal.”

     Despite the political departure the Constitution represented, the Founders recognized the key legal commonality between America and its Old World roots: the laws against forcible predation. Thus, they empowered Congress to define those acts as punishable outside as well as inside our national borders. Other national laws were omitted from consideration, or deemed unenforceable “on the high Seas.” At the time there was no consideration of laws such as today’s forbiddings of various drugs. Smuggling laws enforced at the nation’s border were outside the “high Seas” scope of the provision.

     Today “the Law of Nations” is more extensive than in 1787. For example, there’s a general agreement among civilized nations that the international transport of certain drugs, and the unauthorized transport of weapons, should be forbidden. No world legislature passed laws against those things; it’s simply a commonality among the great majority of nations. So it became first a matter of tacit international agreement, later confirmed by various treaties and United Nations “conventions.” (It’s also a criterion for recognizing a “rogue state” or a “failed state.”)

     Mind you, such agreements, implicit or explicit, are agreements between States. States do such things to benefit themselves, not their subjects or neighbor States. Were the U.S. to rescind all its laws against traffic in fentanyl, for example, the existing agreements against international traffic would remain. The other nations would continue to enforce them to the extent possible… which, with America subtracted from the equation, would be considerably less.

     Just this morning, “The Pour Over,” a newsletter I get regularly, put forth its own take on “international law:”

     That’s not a bad abstract treatment of the subject, though it doesn’t delve into the history of the thing. As regards enforcement, it’s a bit simplistic in leaning upon “sanctions.” Clearly those are not the only instruments at a nation’s disposal, as the U.S. demonstrated by sinking several drug-smuggling boats in international waters.

     There were, of course, protests against those sinkings. Google’s AI summarizes those reactions, including those from outside the U.S.:

     International criticism of the U.S. strikes came from various sources:

• United Nations and Human Rights Bodies: The UN human rights chief suggested the strikes might constitute unlawful extrajudicial killings, and the Inter-American Commission on Human Rights voiced "deep concern," requesting investigations.
• Foreign Governments: Venezuela condemned the operations as aggression and violations of international law, filing a complaint with the UN Security Council. Colombian President Gustavo Petro called the strikes "extrajudicial executions". Brazil, China, France, Iran, Mexico, and Russia also stated the strikes violated international law.
• Non-Governmental Organizations and Activists: Human rights groups and legal experts, including the American Friends Service Committee, questioned the legality of the killings and the absence of public evidence.
• Public Protests: Protests against the U.S. actions occurred in locations like Rochester, New York, with demonstrators carrying signs such as "No War on Venezuela".

     The international negative reaction primarily focused on the U.S. military's use of lethal force in what were seen as law enforcement scenarios without publicly providing evidence for the "narco-terrorist" label, leading to concerns about legality under international law.

     But lethal force is the ultimate form of enforcement. It stands behind all other varieties of enforcement. The opinions of the protestors, individual or national, do not matter. The drugs and their transporters were offending against “the Law of Nations” as currently agreed among the States of the world. Moreover, they were doing so in very fast vessels designed to evade capture by the larger, slower vessels of blue-water navies. American aircraft destroyed them. As a character of mine once said, period fucking dot.

     This is not a moral defense nor a legitimization of the action. It’s what States do, and States are amoral. On net balance, I’d say it was a good thing, my opinions about the War on Drugs notwithstanding. It’s best for the potential consequences of an action to be clearly understood beforehand and plainly visible afterward.

     Let there be no misapprehensions: if there is to be a “Law of Nations,” it will be the great powers who will determine and enforce it. Indeed, there needn’t be a “Law of Nations” for that to be the case. The great powers will always enforce their will in No-Man’s Land. Consider low Earth orbit in this regard. Till now, the “Law of Nations” has barely brushed against it. That will change.

Law And Its “Enforcers”

     Over at Ace’s place, Oregon Muse reminds us of this incisive article about police and policing from Angelo Codevilla. The entire article is worth reading, as is always the case with Codevilla, but here’s the Sunday punch:

     What then shall we do with and about the police? Reality imposes certain principles.

     First, trust them only insofar as you pay them, can hire and fire, or frighten them. Otherwise, realize that they will serve whomever pays them....

     Second, take a lesson from those videos of the police standing aside. They didn’t protect the mobs simply because they were so ordered. They did it also because they were physically frightened by the mob’s use of a variety of weapons against them, as well as by the prospect of lawsuits and attacks on them and their families....

     Third, police yourselves. Call it self-defense groups, neighborhood protection, vigilantes, friends, anything but “militias.” But the essence is the same: rely on yourself and on people who have known each other for a long time—no infiltrators, please—united and armed to take care of themselves as they think best.

     We might call the first of the above prescriptions “Littlefinger’s Law:”

     The overriding importance of that effect is well established. In combination with the second prescription, it constitutes the heart of Public Choice theory: the supremacy of personal and familial interests over notions of public duty.

     The third prescription merely follows from the previous two...if, that is, communities want policing of any sort, given the complexities and consequences that attend it.

     Oregon Muse adds this:

     [W]hat this means is that, ultimately, the police are not your friend. When you most need them, odds are they won't be there. Also, you'd better be real careful how you talk to them. And I'm talking about just the local constabulary, don't get me started on the FBI....

     I'll go back to the point I keep hammering on, and it is this: the reason we are in this situation is that for the most part, we have lost the most important government there is: self-government. If each on of us can't govern ourselves, can't control ourselves, no amount of external government is going to work.

     True – as far as it goes. But it omits the recognition that even in the most virtuous societies there will be lawbreakers, predators, and the shiftless. Someone must deal with such miscreants. In today’s America, they tend to be sheltered – protected from the appropriate penalties for their actions – by their families and identity-group fellows. If there is no public nor quasi-public institution to take them in hand, what then?

     Some people call this a refutation of the libertarian ideal. I don’t see it that way. Even the freest possible society must have a way to deal with predators. Even if there’s a “best method,” and if we can work out what it is, no social arrangement is indefinitely stable – and that includes arrangements for law enforcement.

     The problem is stiff, and it won’t go away.

There Are Days When Commentary Seems Superfluous...

     ...because the news speaks for itself:

• The Hunter Biden emails have been verified as authentic.
• Businesses are boarding up pre-emptively.
• Oh, come on, now!
• The Times’s Op-Ed writers are ready for the rubber room.

     Gentle Reader, were I to pour the totality of my “future columns” links upon your weary eyes, you’d start wondering what country you woke up in this morning. However, the four linked above should suffice to indicate my frame of mind. It’s incredible that the Land of the Free should be in its current condition, but here we are. Worse, we have no one to blame but ourselves:

• We elected Joe Biden to the post from which he could sell American foreign policy.
• We failed to raise our children to respect law, public order, and property rights.
• We failed to help our communities to protect property rights.
• We kowtowed to far too many government meddlers.
• And may God forgive us: for years we bought the New York Times for its crossword puzzles!

     I know, I know. I can hear you muttering that “It wasn’t me! I didn’t do any of that!” Well, what did you do to prevent it? I can only answer for myself: not enough.

     That’s it for the gloomy intro. Now on to the gloomy analysis.

---

     Let us ponder the rioting / looting phenomenon as a special case of the general problem the morally deficient face: how a prospective criminal arrives at the answer to the question “Can I get away with it?”

     When the value of “it” is “stealing this particular object,” all the following considerations play into the answer:

• Will I be seen?
• If I am seen, will those who see me make use of it?
• Am I being recorded?
• Will the police take an interest, and if so, how zealous will they be?
• Will others know who might betray me at a later date?

     The answers to those questions are heavily influenced by other contextual factors. In the case of the looting that currently afflicts several cities, the most important of them appears to be the number of other persons striving to do what the prospective thief is contemplating. If the number of looters is large compared to the number of persons ready, willing, and able to prevent the theft and / or enforce the law afterward, all the other factors seem to fade to insignificance.

     As Rose Wilder Lane noted in the Discovery of Freedom, the security of your property depends, more than anything else, on how those around you feel about private property. If they respect it, it will be secure – and its security will derive in large measure from others’ willingness to act against those who would take it from you.

     The police might be involved, but in the usual case only “after the fact.”

---

     The looters are currently getting away with their looting because they heavily outnumber those who are ready, willing, and able to stop them. Moreover, they’re aware of that, and that it would not be the case in many other locales. So they’ve restricted their activities to those domains in which they can’t or won’t be impeded.

     This, too, is our fault. Private-citizen Americans were once as important to the enforcement of the law as the police, if not more so. That was especially the case concerning property crimes. But in our cities today, the Sergeant Schultz attitude is prevalent. Private citizens are massively disinclined to “get involved.” “It’s the police’s job,” they say.

     Why? It’s a separate study with several factors, including the use of the law to disarm urban residents. But the moral of the story is clear: should the ethic that defends private property weaken among the public, there will be more property crime, and it will go unpunished ever more often.

     As the AntiFa types have demonstrated, the same logic applies to assaults on persons. Which leads us to an overwhelming question:

Do you go about armed?

     As you can see, there are many reasons to indulge in more than a single drink, these nights.

Which Way Are You Inclined?

     I know a fair number of people who are utterly confident that President Trump will be re-elected in November, that the Durham investigations will produce massive numbers of indictments of former Obama Administration insiders, that the economic rebound after the Wuhan virus panic will break all records, and that there will be a meaningful World Series this coming October. I also know a fair number or people who are utterly despondent, as they’re convinced that President Trump will lose to Senile Joe Biden, that the Durham investigations will sputter out without meaningful consequences, that the economy will linger in the doldrums for many more months, and that baseball as we have known and loved it is but a memory.

     I belong in neither of these groups. I won’t predict any of the outcomes they foresee. I wait, watch, and wonder whether all is not as it seems.

     What about you, Gentle Reader?

---

     John Wilder opines thus:

     How did the Modern Sporting Lawyer make you feel?

     That’s why he and his wife are condemned. That’s why they have vowed to cancel him, to make an example of them, to find a way to charge them with crime. They are the opposite of demoralization.

     The Modern Sporting Lawyer and his wife drive the Left crazy. Here, their desire to destroy as a senseless mob was turned back by only two people.

     Can you imagine if the Right was united? I can.

     Wilder is cheerfully optimistic, despite his warning that we in the Right must stop fighting amongst ourselves. I like the tone of his piece and the direction of his sentiments, but I can’t fully share his optimism. As a wise man once said:

Confident is how you feel
Just before you get blindsided.

     (Who was that wise man, I hear you ask? I think it was me.)

     To that effect, we have this recent development:

     Law enforcement officials in St. Louis have allegedly served a warrant on the St. Louis couple who recently defended their home when a large mob of angry demonstrators allegedly trespassed onto their private property.

     “5 On Your Side has learned St. Louis police officers executed a search warrant Friday evening at the home of Mark and Patricia McCloskey, the Central West end couple who confronted protesters with weapons in June,” KSDK News reported. “Sources tell 5 On Your Side police seized one of the weapons, the rifle, from the couple and they told police their attorney has the pistol seen in photos.”

     Fox News host Shannon Bream confirmed the news in a tweet, writing, “BREAKING: Warrant reportedly served on St. Louis couple who stood outside their home with weapons as protesters approached. We’re told weapon(s) seized. We’ve got the warrant and pictures for you at 11p – PLUS, Missouri @AGEricSchmitt joins us LIVE…”

     So the “forces of order” in St. Louis have disarmed a couple targeted by a violent and destructive mob. That couple is the very same one Wilder referred to in his optimistic piece. As this news was broadcast on St. Louis media, the mob now knows that the McCloskeys have been shorn of the power to resist them. What would you predict from these conditions?

• Will the McCloskeys ever get their weapons back?
• Will they face charges for having dared to defend themselves?
• Will other St. Louis residents dare to defend their property with weapons?
• Will the mob attack the McCloskeys’ home now that they’ve been disarmed?
• Will the D.A.s of other riot-torn cities react similarly toward armed defense of private property?

     It doesn’t look good to me – certainly not as rosy a picture as John Wilder has painted.

---

     The central unanswered question throughout the riots has been “Which side is officialdom on?” It must be answered locale by locale, of course. In some areas, the answer has been heartening: no one in Coeur d’Alene has been harassed by the police for having defended that city from the rioters who tore up Spokane. In others, the answer appears to be the reverse: in St. Louis, defending yourself against criminals is being treated as a criminal offense. Here on Long Island, the chips have yet to fall.

     A great rearrangement of regional populations is underway. Large numbers of Americans are departing from long-time homes on the coasts, especially in and around the major cities. They’re moving to less densely populated areas that have not yet been targeted by the Black Lives Matter / AntiFa / Communist coalition. Many are giving up a great deal – careers, neighborhoods they’ve loved, proximity to family and friends – in a quest for greater safety from the rampaging mobs. That constitutes a barometer of popular sentiment: yea, even among those who voted for the very officials who have sided with the mobs and against peaceable citizens.

     As soon as I can manage it, I will be part of that population rearrangement. I want to believe that all will be well, as John Wilder has predicted. However, belief must give way before the evidence – and just now the evidence does not inspire confidence:

• The mass army of the Right John Wilder envisions is not yet in evidence.
• Police forces in riot-torn cities have stood aside before the rioters.
• D.A.s would rather prosecute the peaceful and law-abiding.
• No federal response to the riots is in prospect.

     So: How do you see things working out, Gentle Reader? If you’re a resident of – or proximate to – one of the riot-torn cities, what are your strongest inclinations concerning the safety of your home and family? What conceivable developments would cause you to alter those inclinations?

     Please let me know. What you can tell me about conditions in your district, and how you’re minded to meet them, is information of value to others in similar circumstances. Lives could be at stake.

The New Abnormality

     New York Post columnist Bob McManus has penned a piercing indictment of the de Blasio and Cuomo Administrations:

     You say you didn’t like stop-and-frisk? Well, how do you like duck-and-cover?

     Stop-and-frisk was a front-line NYPD safe-streets policy for two decades. So was broken-windows policing. As were the flying squads of anti-crime cops. They’re all gone now. Perhaps you think New York is better off without them?...

     This new darkness isn’t a random, natural malevolence — unpredictable, unavoidable and thus demanding no accountability. It’s the result of a deliberate unstitching of arguably the most sophisticated and successful anti-crime strategy ever implemented in this nation....

     All that is history now. The de Blasio administration dismantled a winning strategy, one element at a time, and the results are clear: New York is not Chicago — 77 shot, 14 dead over the holiday — but it’s careering in that direction.

     New York, city and state, has been hard at work disassociating crime and punishment for some time now — and bragging on it.

     Please read it all. McManus allows that the policing practice of stop-and-frisk was “Imperfect and prone to overzealous application.” Indeed, it was Constitutionally dubious, but made mandatory by other Constitutionally dubious ordinances that infringe on the law-abiding citizen’s right to go armed. Those ordinances guaranteed that the law-abiding citizen would be unarmed, whereas one already minded to break the law would carry whatever armament he thought he could get away with. Stop-and-frisk was the response to that imbalance...and in the context of New York City, it worked.

     The rash of shootings and other felonious crimes has been made possible by the termination of stop-and-frisk, in combination with New York’s hostility to private firearms and the Cuomo Administration’s removal of bail requirements for those accused of “non-violent” offenses.

     Chessplayers will tell you: a bad decision will often give rise to other bad decisions...to “justify” them. In the argot of the game, “one lemon leads to another.”

     The deep thinkers who hailed de Blasio’s and Cuomo’s moves are strangely silent just now. Regret for the policies that have elicited such carnage? None. Expressions of responsibility for the deaths and other losses? None. As Glenn Reynolds has observed, “The left is always blaming its enemies for people’s deaths, but never takes responsibility for the people it kills.” Nor is there much chance that the pernicious policies will be reversed; politicians don’t often allow that they’ve erred.

     Extortionate taxes and fees, stifling regulations, intrusive state and local governments, a welcome mat for illegal aliens...and a complete lack of citizen security. This is the Empire State in the year of Our Lord 2020. It’s why I’m preparing to get out.

     Yet Andrew Cuomo has been mentioned in connection with the presidency. It is to laugh.

---

     The Declaration of Independence states explicitly that governments exist to secure the people’s rights: “to effect their happiness and safety.” Maybe the political elite tried to squelch our celebration of the Independence Day just behind us because there was too great a danger that we would remember that passage. It’s worth a spot of thought. Why pay taxes or observe a plethora of laws and regulations if there is no increment to our happiness and safety – indeed, if the net consequence is both less happiness and less safety? Not too long ago, the worthy Ace of Spades had a few thoughts of that sort:

     The cops have decided to make us each fight for our own lives.
     There is no help coming but self-help.
     So what the fuck do you expect us to do? Just... go along with any street vigilante who decides to subject us to an involuntary, physically-coerced struggle session?
     Just say, "Ah well, the permanent brain damage I suffer from this savage gang-assault is a small price to pay for the cause of ending White Supremacy?"
     Fuck you. That's false imprisonment -- and people are allowed to use a reasonable amount of force to free themselves from it.
     This is getting very dangerous. People have no choice but to resort to self-help -- force -- to defend themselves, and they're going to start doing so.
     And don't count on having a lot of SJWs on the jury to convict them for defending their lives.

     I’ve been saying this – typically with regard to the ongoing race war – for some time. If the Big Apple precedes the rest of the country in this manner, I suppose it will just be another “first” for the City That Never Sleeps. But I don’t expect New York City to be alone in this for long.

     If you reside in a major American city, this is reality for you right now. If a major American city is within an hour’s driving distance of you, you don’t have long to wait. Prepare yourselves.

Public Spaces And The Current Crisis

     The ongoing violence and disruption in Democrat-controlled cities has evoked an optimistic piece from Bookworm, who deposeth and sayeth:

     The media are lying to us: Outside of the media’s Democrat-run communities, Americans are getting along fine and are well aware of what’s really going on.

     Believe it or not, things in America are better than you think. In a way, America is the equivalent of a fundamentally healthy plant under attack from hard-left aphids. If we can rid ourselves of that parasite, we will be fine.

     I’m not entirely in agreement with that assessment, on the grounds of the presence of the first (and most important) word in the last sentence: if. Getting rid of a parasite without simply uprooting all the affected plants is no small nor simple undertaking. In this case, the parasite has a support system comprising the educational system, the entertainment industry, and the journalism and communications giants. Those supports can sustain it for quite a long time – possibly long enough to compel the use of violent purgative measures from which the country would emerge in a quite different form.

     Atop that, there’s been a transformation of the way we see public spaces, including where we see them and what rules apply to conduct in them.

     For a society to maintain public spaces of any sort, there must be rules about how they can be used, and what individuals are allowed to do in them. Moreover, those rules must command the willing compliance of 98% (or more) of the populace, as a rule that would lack that degree of popular consent could not be enforced by measures a peaceful society would tolerate. When a significant fraction of those who use a public space disregard the rules or blatantly flout them, the space becomes chaotic. A chaotic space cannot serve any reasonable interest.

     I trust I needn’t present a detailed argument about why this is so. Experience alone provides ample confirmation. It’s one of the reasons libertarians argue for the minimization of public spaces, but that’s a subject for another time.

     Just now, we have the following happening as we watch:

• A radical group has seized public spaces in many urban districts.
• That group aims at inflicting as much disruption on normal American life as possible.
• Within the spaces it has seized, enforcement efforts have been inadequate – in some cases, nonexistent.
• As the group has fattened on its gains, it has encroached on the surrounding private spaces in an attempt to add them to its demesne.
• In some cases those private spaces have been defended; however, the media, which has decided to support the radical group, has done its best to vilify the defenders.
• The “authorities” with nominal responsibility for the afflicted spaces have almost unanimously thrown up their hands and said something to the effect that “It’s their right to protest.” In one ironic example, the mayor of Seattle decided to act against the radicals only after they threatened her own home.

     The genesis of this goes back several decades. We’ve seen precursor elements in the Watts and Detroit riots, the 1968 street disturbances in Chicago, the Weatherman incidents, violence aimed at such gatherings as the G20 conferences, and most recently before the BLM / AntiFa obscenities, the Occupy “movement” that first manifested itself in lower Manhattan. In each case, a group flouted the rules for conduct in public spaces, sometimes with violence and destruction of property. In each case, by refusing to enforce those rules, local “authorities” gave the disruptors de facto sanction for their deeds. They whose aim is to create chaos that would eventuate in the collapse of the American order have built on each such cession of legitimate authority.

     Do the disruptors constitute a sufficiently large fraction of the populace to make public-conduct laws unenforceable? I can’t say definitely, though I incline to doubt it. But remember always that people naturally emulate the successful. To the extent that the disruptors succeed in attaining their goals, they will inspire emulators. There will be a further decline in respect for public-conduct laws, and therefore in persons with an ugly agenda who will defy those laws when it suits their purposes.

     It might be too late to apply sufficient enforcement power to the problem. I hope it isn’t; travel and routine commerce are tough enough under normal circumstances. But unless the “forces of order,” which have been doing very little to promote and maintain order up to now, assert themselves in defense of public-conduct rules, the phenomenon will metastasize and spill into semi-urban, suburban, and ever more rural districts. And that’s to say nothing of the importance of the laws that “should” protect individuals and their legitimate property.

Carrots And Sticks

     One of the sturdy wisdoms the “progressives” have striven to eliminate from general acknowledgement and acceptance goes like this:

The only way to get someone to do something he isn’t already doing is to get him to want to do it.

     This is not “obvious” (i.e., in the usual sense of “Damn it all, how could I have overlooked that for so long?”) to most people. Yet it’s a fundamental truth about Mankind. Indeed, it would apply to any race of sentient creatures with independent consciousnesses.

     At this point, let us recur to our old friends Smith and Jones. There are exactly two categories of methods by which Smith can get Jones to “want to do it:”

1. Smith can offer Jones rewards for compliance.
2. Smith can threaten Jones with penalties for noncompliance.

     Sometimes, Category 1 involves getting Jones to see some aspect of his self-interest of which he hadn’t been aware. Sometimes it involves an “extra” reward provided by Smith himself. In either case, Smith is making an appeal to Jones’s own values and / or desires.

     Category 2 is a bit different in tone. Sometimes it involves calling Jones’s attention to some negative consequence he hadn’t considered, or had under-weighted. But in other cases it involves Smith’s forcible imposition of punishment upon Jones, should Jones fail to cooperate.

     Methods for “getting him to want to do it” are equally relevant to “getting him to not do it” – and here we enter the realm of public policy.

---

     Some years ago a libertarian activist named David Miller composed the following chart:

     This image provides a schematic summary of how Smith and Jones can interact, according to whether Smith wants to get Jones to do something specific, or whether he wants to stop Jones from doing that something. (It also illustrates, in a fashion no other simplification of human interaction can, what the word moderation really means, or ought to mean.)

     Let’s omit as uninteresting the possibility that Smith is indifferent to what Jones might do. While the great majority of us are genuinely indifferent to what the great majority of us are doing (“Have you ever considered that the rest of the world doesn’t give a damn about you?” – Walter Williams), every now and then that condition of “benign indifference” fails to apply. Those are the interesting cases.

     If Smith wants Jones to do X, he has three general ways to incentivize Jones:

• Help: Smith can collaborate with Jones in some way: encouragement, provision of resources, offering a reward for performance, and so forth.
• Hurt: Smith can harm (or threaten to harm) Jones for not doing X: he can harm Jones physically, or confine him, or take some of his property.
• Kill: Smith can take Jones’s life for not doing X.

     A similar pattern applies if Smith wants Jones not to do X:

• Warn: Smith can counsel Jones against doing X, or can promise to withhold some benefit Jones might otherwise expect (but to which he doesn’t have a moral right) should Jones go ahead with X.
• Hurt: Smith can harm (or threaten to harm) Jones for doing X: he can harm Jones physically, or confine him, or take some of his property.
• Kill: Smith can take Jones’s life for doing X.

     The symmetry “should” be “obvious,” as should one other thing which is emphasized by the vertical red lines: Outside the middle zone of the chart, things can get ugly. They imply the use of force, or the threat thereof.

     If we exclude a priori the use or threatened use of force, all we have are gentle methods of “getting Jones to do what Smith wants.” Gentleness, while it’s always attractive in theory, isn’t applicable in every case. Consider a very simple example that’s currently relevant to a certain Pacific Coast city: Getting people to not defecate on public property. How has the gentle method of tut-tutting while wagging a disapproving finger at the bums and vagrants as they drop their pants worked out for San Francisco to this point?

     The methods that involve force, when imposed by a government on those within its sovereign territory, are what we usually call law enforcement. Hopefully, this will come as no surprise to any Gentle Reader of Liberty’s Torch.

---

     Yesterday, John Hinderaker of PowerLine had some cutting things to say about the assertion of “rights” to impede the enforcement of laws that protect public order:

     Ardent Democrats may be surprised that voters care about crime and the problems associated with homelessness, but no one else is.

     He quotes Lawrence Tribe in a juicy example of the ways the Left “reasons away” law enforcement with specious rights-talk when it suits them:

     The supposed “rights” of those who are upset or psychologically threatened by the homeless, the deinstitutionalized, or others similarly situated are what I would call second-order rights, rights that a polity cannot fairly treat as having as strong a claim to protection, as trumps that override utilitarian claims as is true of genuine rights.

     Hinderaker comments thus:

     The derelict’s right to defecate in public is a “genuine right,” whereas your right not to have to watch people defecate in public is a “second-order right.” Presumably this is in the Constitution somewhere.

     What is not clear is whether the criminal’s right not to be imprisoned for his crime is “genuine,” while your right to be free of criminal violence is “second-order.”

     Indeed.

---

     While there are certain problems attendant to the idea of “public property,” Americans have accepted the notion as the best way to preserve various aspects of public order. If the public can be persuaded to grant the status of “public property” to a facility, then the application of law and law enforcement to that facility follows naturally. The laws appropriate to the facility will depend on the nature of the facility.

     The thoroughfare — a passageway provided for persons and / or their vehicles to get from place to place – is one of the oldest kinds of facility to be deemed public property. Sidewalks and public streets are obvious examples of thoroughfares. Their proper use is to transit them from source to destination; there is no other. Thus the laws appropriate to them would fall into two broad categories:

• Keep moving;
• Don’t do anything to impede or discommode others.

     If laws to prevent bums and derelicts from camping out on the streets and sidewalks are appropriate, how much more so are laws to prevent such persons from using them as open-air latrines, impeding the passage and endangering the health of passers-by and persons with adjoining properties? And how much more fatuous could an assertion get than Lawrence Tribe’s nonsense about the “right” of the “homeless” to defy such laws without suffering a legal penalty?

     Thoughts?

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.

---

     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.

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.

Quickies: Tragedy Begets Sanity

     Or at least, a halting step toward sanity:

     HOUSTON, Texas (KTRK) -- Houston Police Chief Art Acevedo says 'no-knock' warrants will end on his watch after the controversial raid that left a man and his wife dead on the southeast side....

     "Nobody is as pissed off as me," Acevedo told the crowd. "There's a lot of good work going on. One or two people have taken relationships and taken community relationships back decades, and it pisses me off."

     I am unfamiliar with what any court has said about “no-knock” raids. If a federal court has ruled on such things, it would have to contrive some sort of legal exception to the Fourth Amendment:

     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.

     I can’t see it. How could there be any exception to the plain wording of the amendment without destroying all basis for the stated right? Never mind that there have been so many erroneous “no-knock” raids, that innocent people have been killed, have had their homes and lives destroyed, and have often faced criminal charges for acting to defend themselves against the invasion of their property. Never mind the numerous cases of “SWATting,” in which maliciously inclined persons have used police power to disrupt the lives of those they dislike. And never mind that there is no way to get your reputation back once one’s neighbors have seen the police at your doorstep.

     In the case cited here, the Houston police killed two entirely innocent persons. That’s an outrage of the highest degree. But what if those persons had possessed some sort of contraband? The usual excuse for a “no-knock” raid is the presence of drugs that can be easily destroyed should the possessor have any warning that the police are coming. Given the significant probability that a “no-knock” raid on the home of someone who would face felony changes for what he possesses will eventuate in lethal violence, how can anyone rationalize it? Is it reasonable that a man should face the prospect of death by gunfire for such a thing?

     I know, I know: I’m a hopeless idealist who thinks people should be free to own whatever they can rightfully acquire without legal consequences. Totally out of step with the hyper-paternalistic ethos of our era. But I leave those of you who are supporters of the War on (Some) Drugs with a question: How many persons, innocent or otherwise, must lose their lives to police-state tactics before you concede that there’s something wrong with the law? Were the law and its enforcers to target something you prize – say, your guns – would you feel the same way as you do about the War on (Some) Drugs and the tactics used to prosecute it?

Law Enforcement As Political Bludgeon

     Several court decisions have ruled that the enforcers of the law, however we understand them, are under neither a legal nor an occupational obligation to “protect” anyone. This stands to reason, as a duty to protect is an affirmative one that can only arise from a contract between individuals, or between an individual and an organization. However high our taxes, they cannot impose a responsibility upon any employee of the local, state, or federal government to stand between us and would-be predators. Their role lies in the deterrence of predation via the investigation of crimes, the pursuit of lawbreakers, and the administration of justice. Or so a rational man would imagine.

     But recently law enforcers have “taken on a sideline:” coercing individuals targeted by a government agency into complying with extra-legal demands while instilling prejudice against them in the public's mind. As regards a well publicized recent “arrest,” Paul Craig Roberts has a few thoughts for us:

     Formerly, if a prosecutor staged an arrest for publicity purposes, as Mueller did by placing a CNN presstitute on the scene and sending a couple of dozen heavily armed men in a pre-dawn raid to arrest a well known political consultant for allegedly “lying to Congress” when the appropriate procedure is for [Special Prosecutor Robert] Mueller to inform [Roger] Stone’s lawyer to present his client for indictment, the judge would throw out the case on the grounds that the prosecutor’s unethical action had biased the juror pool and made a fair trial impossible. The judge might also have thrown out the case on the grounds of selective prosecution. James Clapper while serving as Director of National Intelligence lied to Congress under oath and suffered no consequences, and Hillary Clinton has clearly broken the law and lied about it.

     Today judges permit unethical behavior by prosecutors that deprives defendants of a fair trial, because judges don’t want the bother of trials any more than prosecutors do. Consequently, according to official statistics 97% of federal criminal cases are settled by a defendant pleading guilty to a charge negotiated by his attorney and a prosecutor. As the charge is a negotiated or made-up one, most people in prison are there for confessing to crimes that never occurred.

     Such abuses of power under color of law are not entirely new. The Securities and Exchange Commission used a similar approach to coerce Michael Milken into pleading guilty to six “process crimes” – paperwork nonsense that had no bearing on any actual wrong deed. In Milken’s case the feds threatened several of his family members, including his brother and his ninety year old grandfather, with prosecutions they were ill-equipped to endure. Protecting his family cost Milken heavily: two years in prison, $600 million in fines, and permanent exile from the securities industry. But the feds were determined to bag him to put an end to the rapidly expanding and completely legitimate high-yield bond industry, which was forcing useless and corrupt managements out of their sinecures. (Two excellent treatments of this farce of extortion-as-law are available: Daniel Fischel’s Payback and Jesse Kornbluth’s Highly Confident.)

     The contemporary approach, as in the case of Roger Stone, is the dramatic, heavily publicized takedown, often with a SWAT team and the media on hand. Such an arrest inherently taints the reputation of the accused. People will naturally associate him with danger to the public, for why else would so much force have been used to arrest him, and in the middle of the night at that? Never mind that Stone is a 66 year old man with no slightest hint of illegality in his past. Never mind that his location was well known. Stone was collaborating with Congress in an investigation of the misdeeds of Hillary Clinton, and our federal “law enforcers” were determined that his contributions to that effort be tarred with the blackest of brushes.

     In this connection we could also delve into the assaults on Randy Weaver’s Ruby Ridge homestead and the Branch Davidian compound at Waco. Both were plainly intended to plant deep in the public’s mind the conviction that the targeted persons and groups were deadly dangerous. Innocents died in both cases, but that’s mere “collateral damage” in the eyes of the Omnipotent State.

     Is it even imaginable that a person so targeted could thereafter receive a fair trial before an impartial jury?

     Roberts’s conclusions concerning the motivation behind the Stone arrest are chilling:

     Since Donald Trump won the Republican presidential nomination, the media has been allied with the military/security complex and the Democratic Party in an effort to deep-six Trump. As I expected would be the case, Trump had no idea how to staff a government that would have supported him against the Establishment. He has been blocked on every front from normalizing relations with Russia to establishing control over US borders to withdrawal from Syria. The latest line from the military/security complex and the presstitutes is that the US cannot withdraw its troops illegally occupying a rump section of Syria, because ISIS is resurgent in Syria and Iraq and will renew the war if US troops are withdrawn.

     He could well be correct, though there are probably more players in this game than the “military / security complex” alone. To me, one implication is worse than anything the Robert Mueller farce has produced so far: no organ of “law enforcement” or “justice” can be trusted to defend persons targeted by such tactics. Not even the president of the United States is safe from the bludgeon that has been fashioned from them.

     Your tax dollars at work, Gentle Reader. Ponder that as you prepare for your annual mulcting by the IRS.

Quickies: Policing For Profit

     Do you ever travel with a substantial amount of cash on you, or with valuable articles in your possession? Beware.

     Alex at Ammo.com has alerted me to yet another compendious, almost definitive article: Civil Asset Forfeiture: Policing For Profit. And once again, it’s a must-read for anyone who wants to keep what’s rightfully his out of the clutches of Bad Blue.

     The incentive structure erected around civil asset forfeiture guarantees that police departments at every level of government will be in on the action, and determined to stay there. As John Ross alluded in his blockbuster novel Unintended Consequences, such seizures can touch any item of value – and are often “engineered” at the moment of impact. In the following, gun expert Henry Bowman is invoking a favor from FBI agent Mike Garland, to aid a friend in getting a “contraband” gun into the United States:

     “[It’s] an elephant gun, made in England seventy years ago that Ray bought in a Boston sporting goods store in 1959. Customs guy’s not asking for duty. He's trying to steal the whole gun because of the front sight. It’s a piece of elephant ivory about the size of half a grain of rice....
     “Mike, I know the way this works. I’m trying to save everyone some time here....If the guy at the airport wants to be a prick and make Ray miss his plane and have to get a hotel, fine, but he’ll eventually get all his guns back.^[1] If you tell him to let him go now, your guy can keep Ray’s .38 as consideration for expediting his clearance, okay?
     “But Mike? As we speak, Ray is watching his guns. There is no way that any drugs are going to miraculously appear inside any of them, as can happen sometimes with vehicles. Particularly expensive, fast, German vehicles.^[2] Okay?”

     Note 1: Ray does have the documentation attesting to when and where he bought that “elephant gun,” but he doesn’t have it with him – and if the gun should leave his possession, it could easily “get lost:” i.e., wind up in some Customs agent’s private gun safe.

     Note 2: An earlier scene involving Mike Garland shows him boasting, oh so delicately, about his acquisition of a high-end BMW through “snowflaking.”

     Draw the moral. Never, ever carry anything with you that might tempt an act of “policing for profit.” Ship it instead.

     UPDATE: Apparently I rely too much on my memory. John Ross has just informed me that Mike Garland was a Customs agent rather than FBI, and the "snowflaked" car was a Porsche. Apologies. (Hey, at least I got the nationality of the car right!)

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.

Cowards With Badges?

     Time was, Americans took pride in what we called “the forces of order.” The police were prominent in that group of public servants. We believed that they existed to protect the rest of us. We understood their jobs to include the obligation to accept risks, including mortal risks, under certain circumstances. We believed that they understood that as well. And perhaps it really was so.

     It doesn’t seem to be that way today. Indeed, police actions in recent years suggest exactly the opposite: that police forces are characterized by an aversion to risk that the rest of us would deride as cowardice.

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     Everyone is risk averse to some degree. No one accepts any and every risk he confronts without consideration of its upside and downside. Certain occupations are kind to the extremely risk averse. Others are not.

     The rash of reports about police not venturing into active-shooter confrontations, police shooting unarmed and unresisting citizens, police shooting dogs, and police intimidation of nominally peaceable citizens suggests that some of our cops are more risk averse (and less respectful of Americans’ individual rights) than the occupation should tolerate. Certainly the situation is worse for Americans in regions where the police are frequently active.

     A number of commentators have opined that the typical citizen is better off not involving himself with the police to any degree. You say your house was burglarized? Let the insurance company handle it. Your car was stolen out of your driveway? Same advice. You were mugged on the street? Same advice, with the addendum that you should rethink your choice of neighborhoods to walk through.

     Every interaction with anyone carries some degree of risk. An interaction with a policeman is no different, except that the policeman is far more likely to be armed. To depend on the police to protect you and your property, when Supreme Court decisions have held that there is no such obligation, is foolish. If the general level of risk aversion among police is truly rising, it’s even more foolish.

     But is it unfair to view policemen generally as cowards with badges?

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     Institutional dynamics, whether in the private or the public sector, are bound by certain laws of valuation akin to Gresham’s Law of monies and currencies:

     "When a government overvalues one type of money and undervalues another, the undervalued money will leave the country or disappear from circulation into hoards, while the overvalued money will flood into circulation." It is commonly stated as: "Bad money drives out good".

     In point of fact, Gresham’s Law operates in any institution in which two items – and they may be persons — are valued equally by the institution despite differences in their operational value. For example, if Smith and Jones, two employees with equivalent responsibilities, are equally valued by their employer – i.e., in salary, perquisites, prestige, and opportunities for promotion – while Smith consistently outperforms Jones, Smith becomes likely either to leave the company or to reduce his performance to Jones’s level. This dynamic can be seen in operation in many places. Owing to the irresistible power of the SNAFU Principle, it’s the bane of large companies with many levels of management.

     Police departments are not immune to these dynamics.

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     Over time, older policemen retire or die and are replaced by younger ones. If the departing policemen exhibited less risk aversion than their replacements, the dynamics discussed above will result in an ever more risk averse police force. Whether that is happening now is a subject for serious study.

     The possibility has been discussed, at Western Rifle Shooters that police are taught today that “the most important thing is to go home safe.” If this is true, and there is anecdotal evidence to support it, then the emergence of extremely risk averse police – e.g., the sort who stood down during the Parkland, Florida school massacre – is only natural. I have no countervailing evidence. Whether there is an opposed effort in progress in police academies is hard to determine.

     Of one thing we may be sure: A highly risk averse police force is more dangerous to law-abiding citizens than to criminals. Criminals are comfortable with violence, and the police know it. The typical private citizen is not comfortable with violence...and the police know that too. Given that a desire to wield authority is a common characteristic of persons who enter law enforcement, that would have serious implications for relations between cops and private citizens, and for much else besides.

A Muscular Minority

     In any civilized society, those who are willing to use violence to gain what they seek will be a minority. Those who are eager to do so will be fewer still. But as I wrote a few days ago, when violence and intimidation fail to evoke an adequate – i.e., adequately violent and intimidating – response, we should expect the ranks of the willing to swell. However, the pressure on those who nominally have the job of responding will grow greater as well.

     It appears from recent events that that’s exactly what’s happening:

• MILO YIANNOPULOUS UC BERKELEY EVENT CANCELED; VIOLENT PROTESTS SHUT DOWN BREITBART EDITOR APPEARANCE
• After Berkeley: A Right Wing Call to Self-Defense
• Be Careful What You Ask For
• “Genocide, racial hate, America was never great”
• Protests and Attacks Cut Gavin McInnes’s Speech Short

     Those are only samples from the most recent events, of course. For some years now the trend among left-wing activists has been to disrupt – to render impossible, if they can – any gathering of persons they regard as enemies. They’re distressingly good at it, and successful more often than not.

     But the counterpressures are building. Conservatives expect the police to act: to suppress disturbances, maintain public peace, and protect the rights of the innocent. That hasn’t been the case in most of the recent leftist disruptions. If the police continue to hang back, there are three possible outcomes:

• The Left will succeed in its totalitarian-fascist drive to overturn our civil order;
• When the police finally respond, it will be indiscriminate and bloody;
• Badgeless citizens will take matters into their own hands.

     None of those developments would be welcomed by any man of good will. Yet there are no other possibilities.

     We speak of the police as the forces of order. Sometimes they’re not, particularly when they confer de facto protection on thugs for any reason. De facto protection is what the leftist rioters have been getting: the police have stood by – sometimes under orders from civilian authorities – and decent citizens have been inhibited from action. Consequently, the rioters have...run riot. Brutalizations and destruction of property have been widespread.

     Is it just too obvious to say that this will not end well?

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     Muscular minorities have taken power in other lands by the use of exactly the same tactics as the Left is using today. The best known case is, of course, the German Third Reich. The Nazis were never a majority; indeed, that was no part of their intentions. But they were classically “activist” in the streets of the Weimar Republic, and neither the police nor private Germans were willing to take up cudgels in defense of the civil order. The Brownshirts will triumph if the rest of society sits idle.

     The Left believes its field forces and popular support are sufficient to carry the day. They make no pretense about what they want: the nullification of the November election and the installation of their preference in the Oval Office. Present trends continuing, it’s difficult to be confident that they’ll fail.

     There must be a response, and the sooner the better.

     Americans have been led to believe that all the “important stuff” happens in Washington D.C. That’s not the case, especially today. A “demonstration” such as those that have disrupted cities and universities nationwide – riots, really – is a local affair, to which a local response is required. It’s time for riot-riven cities, communities, and universities to press local executives to do their jobs. It must be made clear to them that those jobs will be peremptorily taken from them should they elect to remain sitting with folded hands.

     Do you know your mayor’s, county executive’s, and governor’s email addresses, Gentle Reader? If not, why not?

Legitimizations

     Once more, with feeling:

Opinions Are Like Assholes:
Everyone’s Gotta Have One.

     Trouble is, there are...persons who think – if that’s the right word – that their opinions entitle them to suppress others’ opinions, by whatever means are expedient. And quite a few of them have been, shall we say, acting out on the streets of our larger cities.

     I’m sure all my Gentle Readers are aware of the unruly and disruptive protests, some amounting to open riots, that have occurred in the wake of the election of Donald Trump to the presidency. Given the intensity of hatred the Left has exhibited toward anyone who might dare to oppose it, and further given the willingness of Leftist strategists and financiers to encourage that hatred all the way to its foreseeable consequences, I must sadly state that those events were to be expected.

     A Martian who had just arrived on Earth might view the tumult and wonder whose baby had been raped and dismembered in Macy’s Times Square window. Surely so much hatred and destruction couldn’t be about losing an election. Elections are supposed to obviate violence: as the old saying goes, to exchange bullets for ballots. That was the original point.

     Well, it appears that particular lesson in civics hasn’t sunk into the minds of a lot of younger folks. Their behavior wouldn’t be acceptable from a three year old, but in their sacred opinion, it’s wholly justified by not getting their way.

     It’s getting worse by the minute, too – because the supposed forces of order, by their inaction in the face of so much lawbreaking, are legitimizing it.

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     A behavior deemed generally unacceptable, if permitted to continue without being redressed, thereby becomes legitimate. Not approved, mind you; just moved outside the scope of the law and the operations of law enforcement. We might call this a precedental effect: “He got away with it, so you can’t punish me!” Unfortunately, quite a lot of people “reason” that way.

     There are all manner of problems in the law regarding what we glibly call “public property.” In point of fact, there can be no such thing. There are only two kinds of property: that which some individual or entity owns, and that which “resides in the common.” The differentiating characteristic is called excludability.

     In the simplest terms, he who possesses the power, de facto, to exclude others from accessing or using an item is the current owner of that item. It is his property, for as long as he can maintain excludability at his whim. Whether the item is “real” – i.e., land – or “movable” – anything that’s not land – what matters is who possesses the power to exclude others from its use.

     When contemporary notions about ownership were formalized in the law, the de facto considerations mentioned above were backed by de jure ones. Thereafter, the law would lend its force to the recognized owner in maintaining the excludability of his property. Over time, the law assumed the power of forcible exclusion wholly to itself and away from the property owner. In other words, it was no longer the man sitting on his porch, shotgun across his knees, who maintained the property status of his plot; it was the police precinct he would call to evict a trespasser.

     This has important implications for what we call “public property.”

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     As I said above, there’s really no such thing as “public property,” for “the public” possesses no power to exclude others – and who would those be, anyway? – from “public property.” That power resides in whichever governmental unit is conceded jurisdiction over the item of “public property” at issue. Thus, though we call a street or a government building “public property,” in reality it’s government property, and the government that owns it will make damned sure you understand that.

     In most cases of “public property,” there are specific conditions under which members of “the public” can access the property. In the matter of public streets, those conditions are partially explicit and partially implicit. For example, an organization that wants to hold some public event on Main Street, during which the customary flow of traffic would be impeded, must apply to the relevant governmental unit for a permit to do so. If the permit is denied, the event in question would be illegal, and those who might participate in it subject to arrest.

     The demonstrations and riots that have followed the election have not been conducted under permit from the municipalities in which they’re occurring. They’re blatantly illegal. But as far as I can tell, municipal police forces have done far too little to curb them. (That’s undeniably the case in those cities where violence against passers-by and nearby private properties have occurred.) Thus, the de jure maintenance of excludability of unapproved users – trespassers, in the conventional phrase – by the relevant governments has failed.

     This constitutes a legitimization – i.e., a legal concession – of the demonstrations and the actions of the participants. It is they who now hold the power, according to their whim, to exclude. As a practical matter entirely outside the purview of the law, the demonstrators and rioters currently own the streets.

     And that’s not the end of the story.

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     A legitimization cannot be one-sided. Once de facto control displaces de jure control, whoever possesses the greatest and most effectively asserted force owns the contested item. Nor is any particular assertion the final verdict on the matter.

     In this, I think, lies our greatest danger. One spate of disorder does not, by itself, mean that the de jure order is gone for good. As matters stand, there is still time for law enforcement to reassert control of the streets and insist upon the re-establishment of order. But should the apparent willingness of the authorities to scamp their responsibilities by tolerating these disorders persist for too long, they will lose their authority. The de facto legitimization of the demonstrations will provoke counteraction by opposed persons and organizations. Naked force, and not the law, will determine whatever kind and degree of order prevails. The language of war will overpower the language of law.

     It does not matter that the Left “has it coming to them.”
     It does not matter that the Right is better armed and trained.
     It does not matter that we would enter the fray on the side of law and order.

     This is not “a consummation devoutly to be wished.” Remember how many bodies littered the stage at the end of Hamlet.