Showing posts with label regulation. Show all posts
Showing posts with label regulation. Show all posts

Friday, April 24, 2020

Quickies: The Lockdown Lever

     The rising sentiment among common Americans is that this “stay at home” BS has gone too far and must end forthwith. Yet it’s not ending. Not all the enforcement power in the world could keep Americans confined to our homes, were we to decide that we’d had enough. Yet we’re doing so. Why?

     Some of it is probably fear. “The experts” – you know, those guys who’ve been wrong about absolutely everything from the start of this mess – continue to preach fear. Quite a lot of our countrymen have probably been affected by those preachments, at least to the extend of muttering “better safe than sorry” to themselves. In effect, they’re quarantining themselves.

     But there’s a more baleful influence at work, and it might have a greater part of the responsibility for our ongoing paralysis: licensure and business regulation.

     I’ve written before about the essentially totalitarian nature of licensure. Business regulation – the institution of conditions under which a business must do its business or be shut down by the State – is another facet to that evil jewel. There are fewer businesses than there are Americans – and those businesses’ owners and managers are aware of what the State could do to them should they step out of line.

     So our employers – and remember, the Fortune 3000 employ half of all working Americans – are afraid to reopen at the risk of the State’s wrath. But without the reopening and normal functioning of those businesses, where would most of us be going when we leave our homes? By far the greater part of our moving about is for occupational purposes!

     This applies even to “essential” businesses that are “permitted” to operate during the lockdown. Note how sharply their staffs-on-hand have been reduced. Many won’t even allow customers into their physical stores; rather, the customer must call ahead and accept “curbside delivery,” regardless of his preferences or his desire to survey the available alternatives. I’d bet the rent money that agents of the State are watching them for compliance to their decrees.

     The apostles of State licensure and regulation have always claimed that it’s for “the safety of the public.” They’ve always contended that mere registration and certification – i.e., promulgated safety standards and an easily accessed list of which businesses comply and which conspicuously do not, with no enforcement – would be “insufficient.” If that chant hasn’t grown strained yet, something has gone wrong with Americans’ hearing. We used to bridle at being told that we don’t know our own best interests, that the heavy hand of the State must confine us – and occasionally punish us – “for your own good.”

     And here we are.

Thursday, October 24, 2019

Supping With The Devil

     “If you sup with the Devil, use a long spoon.” – Origin unknown

     David L. Burkhead has posted a typically thoughtful piece about externalities: the consequences a seemingly ordinary event or transaction can impose upon persons nominally uninvolved in it. Here’s one example, taken from his article:

     Someone upstream of you, let’s call him Ivan, decides to make widgets and sell them to you. These widgets are something valuable to you. The problem is, the process for making the widgets produces waste. Ivan just dumps that waste in the stream and the contaminated water flows through your property. You, of course, are not happy with this. The contamination is a cost to you, reducing the value of that water to you. Depending on how bad it is, it might be tolerable, but it’s still a cost imposed on you.

     There are both positive and negative externalities to be considered in such a discussion. Here’s one I like quite a lot:

     Smith, Jones, and Davis are in the corner tavern one evening. Smith wants some music, so he puts his change into the jukebox and selects a song. Jones is pleased, for he likes the song. Davis is not, for he hates it. As for the bartender, he’s deliberately deaf to it; what matters to him is the cut he gets from the jukebox’s monthly take.

     There’s a case that features both a positive externality and a negative one. Jones is getting some enjoyment at zero cost to him, while Davis must endure an irritation for which he goes uncompensated. In a private-property setting such as a tavern, Davis can exercise his option to depart. (He certainly can’t invoice Smith for his displeasure, much as he might want to.) So there’s no substantive rationale for “doing something” to mitigate the externalities.

     Now let’s change it up a bit:

     Smith, Jones, and Davis are neighbors in adjacent suburban homes. Smith likes flowers, so he plants his lot with a great many of them. Jones is pleased, for he finds the array beautiful. Davis is not: he’s allergic to the flowers Smith has planted.

     We now have a quasi-public situation. Davis can hardly pick up his house and move it away from the irritation to his sinuses Smith has constructed. Perhaps he could sell it, but there are obvious costs of several kinds to that move. Besides, what Smith has done could happen in Davis’s next neighborhood. What’s the man to do?

     Quite a lot of persons would immediately reach for the State. And the State is always happy to get involved.


     A long time ago, I addressed the subject of externalities, and their use as a rationale for government intervention in otherwise private actions. It’s not an easy subject, for the reasons Burkhead mentions and others. Most prefer to leave it to the attentions of professional analysts and economists. However, there are aspects of it that even a layman unconcerned with political theory or political economy would do well to ponder.

     The first of those aspects comes from the work of Nobel Laureate Ronald Coase. In its simplest form, Coase’s Theorem posits that when transaction costs – i.e., the frictional impediments that increase the effective cost of a transaction to the transactors, rather than the on-the-counter price that passes from one to the other – are sufficiently low, then over time each asset or right will find its way into the hands of him to whom it’s most valuable. While this isn’t “intuitively obvious,” to use a widely detested phrase, it does seem to hold true in a range of cases. It would suggest that in one approach to the “flowers problem” of the previous segment, Davis could propose to pay Smith a modest amount if Smith would agree to forgo planting species that excite Davis’s allergies. Smith would be compensated for the loss of his pleasure at being surrounded by flowers, and Davis would be freed of the irritant they would have created.

     Mind you, that isn’t guaranteed to work. Smith might not agree to any such bargain. Or he might set a price too high for Davis to meet. But if the transaction costs are near to zero, the possibility will be there.

     The second possibility involves the creation of a “bargaining chip” condition: a condition Davis can tolerate (or enjoy) that Smith finds irritating. For example, if Davis were to discover that Smith dislikes avant-garde modern music, Davis might counter-irritate Smith with blasts of Schonberg, Philip Glass, or (God help us) John Cage. That would produce a mutual-deterrence situation in which each might agree to refrain from his own irritating behavior on the condition that the other should henceforth do the same. (No, it’s not nice, but one does what one must.)

     The third possibility is to “reach for the State.” If there is a local authority with regulatory powers over residential plantings, Davis might have a case that Smith should be restrained. If there are no such authorities, it might be possible to get the municipal or county government to erect one. It could prove the least costly of all the possibilities open to Davis for the relief of his aching sinuses.

     At least in the short term.


     Among the worst of all the admitted defects of economic reasoning is this: no matter how certain some development may be, even with perfect knowledge of the situation, it’s impossible to predict when that development will arrive. People are variable and cranky. They think, if that’s the word, with their desires and opinions at least as often as with their powers of reasoning. And they often fiddle about interminably in their quest for an easier, simpler, or cheaper way.

     Worse, too many of us are prone to ignoring the incentive effects that arise from the ways we “solve our problems.”

     One inevitable consequence of the creation of a body with coercive powers – i.e., a body that can punish those who defy its decrees – is that that body will attempt to expand its scope. For example, a zoning board that starts out with authority only over the sizes of the plots required for buildings of various sizes will sooner or later attempt to gain authority over what those buildings may be used for, how many people may occupy them simultaneously, what may be stored in them, what the grounds around them can be used for and at what hours, and so forth. It may be irregularly successful in such arrogations, but it will make the attempt. There are no known exceptions.

     Another seemingly inevitable consequence of the creation of authorities is their targeting by persons or organizations that could gain important advantages by getting control of them. I think of this as the “dropped sword” dynamic: a weapon that anyone could use against his adversaries will invite a scramble over its acquisition and control. Nobel Laureate George Stigler did valuable work in this area, usually called regulatory capture theory.

     Both these developments result in a steady accretion of costs upon those under the authority’s power. If in the example above, Davis invokes some local authority to solve his allergy problem, we may rest assured that that board:

  • Will act if it already has a statutory or charter rationale;
  • Will strive to create such a rationale if one does not yet exist;
  • Will employ whatever extra powers it may acquire to reach for more.

     That’s the dynamic of power: it seeks to grow. Thus Davis might eventually be confronted by that same board over something he’s been doing that he regards as nobody else’s business: perhaps a decorative pond, or a fence of an unusual height or composition. That the cost takes a while to arrive and assumes an unpredictable form makes it difficult to factor into Davis’s calculations...if, indeed, he bothers to think of the longer term at all.

     People are so given to thinking with their wishes that such effects are more often dismissed than addressed. There’s an “it won’t happen, at least not to me” character to such dismissals, as if we could count on the bullet hitting the next soldier in line. Ostriches’ method of averting trouble works about as well.


     Life in society involves interactions with others. Some of those interactions will be unpleasant. In the usual case, there will be a choice of methods by which to cope. When one of those methods is an appeal to authority, it’s well to look closely at all the alternatives first.

     It may well be that in some cases there are no palatable alternatives. Problems involving air and water pollution have been proposed as evidence to the effect that sometimes government power is the only solution. Yet there will be costs, and they will be paid, whether by ourselves or by our descendants.

     Because those costs and their time of arrival are so difficult to foresee in exactitude, we often throw up our hands and declaim “Let our inheritors deal with the consequences.” It’s a very human thing to do. After all, we’re all mortal; we know that someday “our troubles will be over,” at least here under the veil of time. That makes it easy to hope that the price for our solutions might not be ours to pay.

     But it doesn’t mean there won’t be a price. It certainly doesn’t mean we can guarantee that the price won’t fall on our shoulders, nor that it will be bearable if it does.

     When government looks like an angel with the solution to our problems in his hands, we all too readily overlook the downside of inviting coercive power into our affairs. But history tells us that governments are far more often of a diabolical character than an angelic one...and if you’ve wondered about the reason for the aphorism at the head of this essay, now you have it.

Thursday, April 5, 2018

Can A Monopoly Be Benevolent?

     Unease has been building over the scope of major Internet organizations such as Amazon, Facebook, Google, Twitter, and YouTube. These companies, the dominant thread in the discussions has run, have attained monopoly or near-monopoly power. That power has allowed them to function as censors over social and political interchange. They might lack the power to punish in the strictest sense, but the do have the power to deny the use of their platforms to speakers of disapproved facts and opinions. Therefore they should be regulated to prevent their misuse of their power.

     I’ve delineated the perverse way in which regulation, no matter how it was intended, stifles the emergence of competition. I’ve mentioned to those promulgating such ideas that there are alternatives to all those organizations. I’ve asked why exploiting those alternatives, for instance moving one’s search activity from Google to Bing or one’s videos from YouTube to BitChute, wouldn’t be preferable to creating a dangerous precedent for government interference in Internet communications. I’ve yet to receive a comprehensible answer.

     Glory be to God, people! Am I the only participant in this fracas who’s read George Stigler? Does no one else have even a passing acquaintance with regulatory capture and the dynamics that bring it about? Is it so hard to relocate one’s activities away from these “evil” firms that otherwise intelligent persons would rather hand essentially unbounded powers over Internet communication and commerce to an already too powerful federal government?

     I could start to foam at the keyboard over such bullheaded stupidity. It bespeaks a desire to punish that overwhelms reason, a blindness to consequences arising from a sense of personal insult.

     Not to put too fine a point on it, those who promote federal regulation of the Internet giants are either ignorant, stupid, or blinded by a desire for vengeance. Especially considering what other nations, not dedicated to freedom of expression, have done to the Internet in their lands.

     Just as the proper remedy for disliked speech isn’t censorship but more speech, the proper remedy for commercial monopoly or oligopoly isn’t government monopoly – that’s what a government is, you know, and whatever domain you hand to government becomes a monopoly – but competition. You say Acme Corp’s policies aren’t to your liking, fuzzball? Then shop at Fidget’s Widgets, and quit yammering. The customer is king of the marketplace. No firm can piss off the customer for long without suffering a dire fate.

     But that’s not what I have in mind for the morning’s topic.


     The United States has known a few monopolies. Now and then one will persist despite the general recognition that it has little or no competition. Some monopolies are actually government-certified, protected from competition by law; that’s the case with many a local water or electrical power supplier, and with cable television providers in much of the country. And in the usual case, people tolerate them.

     Why? Because top management at the monopolist is sensible. The directors and executives understand that there’s always a way for competitive forces to bring a company crashing down. Those forces take three forms:

  1. Direct: Firms producing comparable products that compete on price, features, or service.
  2. Parallel: Firms producing products that can substitute for the monopolist’s product.
  3. Potential: The potential for Direct or Parallel competition. Robert Ringer called this Invisible competition.

     Alcoa, the monopoly producer of aluminum for many years, was aware that a competitor could arise at any time. So as its techniques improved it lowered its prices:

     Notwithstanding the fact that for years Alcoa had a monopoly on aluminum production in the United States, it lowered its price over the years, so much so that it was charging only $0.20 per pound in the 1930s as compared to $8.00 a pound in 1888. Alcoa recognized the power of invisible competition. [Robert Ringer, Restoring the American Dream]

     When a monopoly acquires government protection, whether by tariffs or regulation, it can ignore Direct competition. However, Parallel competition can never be foreclosed, as Toyota, Nissan, and Honda demonstrated to the American auto makers in the 1970s and 1980s.

     Some companies, aware of their monopoly or near-monopoly status, will deliberately create conditions to foster the emergence of competitors. IBM did this for decades, pricing its products considerably higher than would have been optimal from a marketing and profit standpoint. The resulting “price umbrella” stimulated technological innovation among would-be competitors, which simultaneously protected IBM from legal assault, provided customers with alternatives, and kept Big Blue’s engineers on their toes. Everyone benefited, as IBM’s top management foresaw.

     Regulation can’t do any of that.


     In an earlier day, monopolies were granted by kings to their favorites. It was evident that a law aimed at individuals would be absurd; the effective course was to prohibit the political power from granting monopolies. But the proposal to “regulate” corporations to prevent monopolies seemed plausible. If it were mere folly, it would leave things no worse than they were; but it contains another element—it reintroduces status law....

     Another aspect of the imposition of political “regulation” on economic effort is the pretext that the corporations had too much power, an economic power which also influenced politics. This is likewise imputed to large private fortunes, as an excuse for heavy death-duties. As a matter of fact, the danger inherent in large fortunes is their weakness against political power. But if it were proved that the corporations did have and exercise such undue power culpably, and a serious proposal made to remedy this condition by handing over the government to the corporation management, would it not be manifestly a lunatic scheme? Yet that is the net effect of government regulation, beyond the enforcement of contract law as it applies to any commercial transaction between private persons. The political and economic powers are merged, brought under a single control. Thereafter it is immaterial which group of persons exercises the joined powers (though the politicians will inevitably get the upper hand); the sum of power will be the same....

     Government cannot “restore competition” or “ensure” it. Government is monopoly; and all it can do is to impose restrictions which may issue in monopoly, when they go so far as to require the permission for the individual to engage in production. This is the essence of the Society of Status.

     [Isabel Paterson, The God of the Machine]

     Paterson’s observations above have a quaint feel to them, applying as they do to companies that make tangible goods. But companies that provide Internet access, Internet services, or publishing outlets obey the same dynamic. Once the government seizes the power to “regulate” such a company, the government becomes the arbiter over how its services can be used, and by whom. Only two outcomes are possible:

  1. Government personnel – likely appointed rather than elected – will make all such decisions, and will use that power to favor the ruling class’s objectives.
  2. Corporation personnel will seize the regulatory apparatus – i.e., they will become, in that domain and for those purposes, the government – and use it to acquire political privileges and to forestall competition.

     That is the dichotomy the evangelists of Internet regulation are aiming for, whether they’re conscious of it or not. It’s up to you to decide whether to “trust” our Omniscient, Omnipotent, Omnibenevolent federal government with such broad and unprecedented powers. Put me down for the negative position; I’d rather take my chances with Google.

Tuesday, April 26, 2016

Immoral Laws And Regulations

     Jeff Carter at Points and Figures makes a strong case for deliberately disobeying them:

     Regulations aren’t what you assume. Economic Nobel Prize winning Chicago Booth Professor George Stigler found, many times regulations aren’t written to protect innocent people. They are written to provide a regulatory barrier for the corporations that endorse them. I think this is especially topical today as we see politicians rail against special interests.

     Stigler uses a simple model of regulation: A regulator faces special interest pressure from producers and electoral pressure from consumers. The special interest pressure is always more “persuasive,” so producers always win. Regulations are passed only for the benefit of large firms, not for the benefit or protection of consumers.

     Are these regulations that are passed “moral” any more than Jim Crow laws passed after the Civil War?

     Stigler did, indeed, demonstrate that regulatory bodies are routinely captured – i.e., their operation is bent toward the protection of the supposedly regulated companies – by the largest and strongest players in the regulated sector. However, the mechanism to which Carter alludes is a step more complicated than he makes it appear.

     The trick lies in “reasonable and proper” enabling legislation. Most regulatory enabling bills leave a large amount of discretion in the hands of the regulators. In effect, the regulators will write the “working parts” of the law. That makes the regulatory body a target. Those who most want to control commerce in that sector will have the strongest incentives to influence it. Those are, of course, the managements of the companies in that sector – and in the usual case, the way lies open to them.

     The adit exists because of the regulatory body’s need for “subject experts.” Such experts are more likely to be found in the existing companies to be regulated than anywhere else...and of course, they’re highly likely to “advise” the regulators in a fashion that would benefit their employers.

     Such benefits can be of several kinds. One variety is the requirement that products sold in that sector must incorporate features that the existing players control, perhaps by patent. Another is the imposition of mandatory liability provisions: i.e., large escrow accounts from which judgments against the product would (notionally) be paid. A third is the creation of a regulatory maze or process that favors high-volume sellers, such that startups in that sector would be unable to afford an adequate compliance department. There are others.

     The net result is invariably a tailwind for the existing players and a headwind – often a prohibitive one – for anyone else. Thus can supposedly well meaning, “consumer oriented” regulation become a shield for a de facto cartel, by indirectly foreclosing competition from newer or smaller organizations.


     As soon as government management begins it upsets the natural equilibrium of industrial relations, and each interference requires further bureaucratic control until the end is the tyranny of the totalitarian state. – Adam Smith
     Government has always exercised the right of universal interference, and nobody ever questioned its right to do so. – Herbert Spencer
     The state seeks to hinder every free activity by its censorship, its supervision, its police, and holds this hindering to be it duty, because it is in truth a duty of self-preservation. – Max Stirner

     Regulation of industry and commerce under color of law is, in Adam Smith’s terms, government management of industry. It is an intrusion into the private affairs of supposedly free men. If it were viewed in the same light as the regulation of land use – i.e., the curtailment or removal of the property rights pertaining to a tract of land – it would be too obviously a taking, for which “just compensation” must be paid. Needless to say, such compensation is never offered.

     Though it’s a longstanding principle of American law that a government may not interfere with a man’s livelihood, if it’s lawful under the penal law, that principle has been vitiated by the application of regulation. Carter mentions licensure in this connection, which is the most obvious case. Licensure has been described as “government taking away your rights and offering to sell them back to you.” In some cases, the State refuses to return those rights for any price.

     A great deal has been said and written in this connection about the Food and Drug Administration’s effectively absolute power to inhibit the production and sale of particular drugs. Many cases of sufferers at the edge of death pleading for access to as yet unapproved drugs have appeared in the media. The excellent movie Dallas Buyers Club, which featured Oscar-winning performances by Matthew McConaughey and Jared Leto, tells of a real-life workaround Ron Woodroof employed to acquire and distribute unapproved drugs for the treatment of AIDS. However, such workarounds are not always possible.

     Would anyone care to argue for the proposition that denying a dying patient access to any possible hope – effectively denying him the right to try to sustain his own life by his own decisions and efforts – is a legitimate, moral function of government?


     Some of the above would horrify even the most enthusiastic promoters of the Omnipotent State. They agree on how deplorable it is...just before they present their “but” arguments. In the usual case, their minds are closed to the moral argument, because it would undermine their assumption of moral and intellectual superiority. They have an infinite supply of “buts,” and will change the subject in ways both blatant and subtle, to avoid grappling with the horror. As there is no persuading them, there’s no use arguing with them.

     When argument is useless, there remains defiance. However, defiance puts one on a different scale: one that balances possible benefits against possible government vengeance. Ron Woodroof defied the FDA, and eventually the entire edifice of the federal government, because his life was at stake: He had nothing to lose. Few of us, and approximately none of our business enterprises, would be willing to make that bet.

     In conclusion: Yes, it is morally acceptable, and in some cases morally obligatory, to defy the State by violating an unjust law. How often a man or an organization will find the spine for such defiance is an entirely separate and much more challenging question.

Saturday, September 5, 2015

The Rule Of Law In America: An Autopsy

     For our lead-in, here’s WeirdDave at Ace’s Place:

     What idea was the cornerstone of the ideological wall that the Founding Fathers used to construct this nation? What single, simple concept embodied everything that they hoped to create, and would serve as a yardstick for future generations to measure their path?

     “This shall be a nation of laws, not men”

     This was the idea that galvanized a group of Englishmen to revolt against an overreaching crown. This was their solution to prevent future totalitarian regimes from subjecting their progeny to depravities that they themselves were suffering. It was not only to be the framework of the new nation, but also the mortar holding it together, binding both citizen and official into a web of interconnecting loyalties and obligations. Rule by man could, no, inevitably would, be capricious. Rule of law was as constant as the northern star, providing the only model where justice could be guaranteed with tyranny excluded.

     A bit dramatized and overwritten, but the essential points are there. To avert the possibility of tyranny, whether monarchical or oligarchical:

  • The law would be “public property,” made by open, Constitutionally defined processes;
  • It would be comprehensible by any reasonably intelligent adult;
  • It would bind all Americans without exception.

     And it seemed to work very well for quite a long time. But then, it wasn’t the sole pillar of the new Republic. It collaborated with several others:

  • The limited powers of the federal government;
  • The essential weakness of the state governments;
  • The widespread armament of the American citizenry;
  • And the great reluctance of the legislatures to tinker.

     It’s that last point that’s most on my mind this morning.


     It was observed, by Thomas Jefferson among others, that legal stability is a necessary precondition for the knowability of the law, and thus for the effectiveness of the rule of law. Jefferson was particularly scathing about the federal judiciary’s arrogation of the power to “interpret” the law, including the Supreme Law, the Constitution:

     "Contrary to all correct example, [the Federal judiciary] are in the habit of going out of the question before them, to throw an anchor ahead and grapple further hold for future advances of power. They are then in fact the corps of sappers and miners, steadily working to undermine the independent rights of the States and to consolidate all power in the hands of that government in which they have so important a freehold estate." -- Autobiography, 1821

     "The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them." --Letter to Spencer Roane, 1821

     "It has long been my opinion, and I have never shrunk from its expression,... that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary--an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed." --Letter to Charles Hammond, 1821

     "The judges... are practicing on the Constitution by inferences, analogies, and sophisms, as they would on an ordinary law. They do not seem aware that it is not even a Constitution formed by a single authority and subject to a single superintendence and control, but that it is a compact of many independent powers, every single one of which claims an equal right to understand it and to require its observance." --Letter to Edward Livingston, 1825

     To Jefferson it was clear that stability in law, and thus its knowability by the common citizen, were incompatible with a judicial regime capable of “interpreting” it to mean other than what it said in its plain English text. His insights in this regard are among the many marks that cement his place as the supreme genius of the Founding Era. They seem queerly prescient when read in this age of the Republic.

     But for all his brilliance, Jefferson, who lived at a time when “regulation” was synonymous with “law,” and legislators were relatively ordinary men who would lay down their regular responsibilities for six or eight weeks each year to decide a few questions, adjourn, and return to their homes, could not have foreseen the incessant, frenetic, wholly unrooted dance of the legislatures and regulatory bodies that were to come.


     Legal stability begets knowability: the citizen’s ability to know what’s required of him and forbidden to him. But stability in law doesn’t rest solely on plain-English wordings stoutly resistant to creative “interpretations.” It also requires:

  1. Limits to legal scope;
  2. Steadiness of existing laws;
  3. A small, inexpansible volume of laws.

     The first condition was supposed to arise from constitutionalism: the requirement that every law conform to the higher law under which it was made. Each county would have its charter, which would be subordinate to the state’s own constitution, which would in turn be subordinate to the Constitution of the United States. The powers thus conferred upon a legislature would be circumscribed in a fashion that precluded the violation of recognized rights and ensured that constitutional and charter obligations would be respected.

     The second condition seemed to be guaranteed by the democratic process, which would elevate common citizens to seats in the legislatures. “Common citizens” as legislators! Today, when politics has become a career and ascent even to a county legislature requires prodigious expenditures of time, money, and effort, the notion seems fantastic. Yet the Founders assumed it would be so, because Americans would all have other pursuits, to which they would be attached and would want to return.

     The third condition...well, let’s just say that none of the Founders, Jefferson included, could possibly have imagined the volume of laws and regulations under which we labor today.


     The best indicator for the unbearable luxuriance of law is the legal library even the humblest practitioner is required to maintain. Hundreds of thick volumes populate the shelves...but even perfect knowledge of their contents would not be a sufficient guide to the law, for today’s lawyer is perforce a specialist. He operates in a corner of the law, defined by subject matter and geographical application, and dares not venture beyond it without consulting another lawyer whose specialty would adequately supplement his. If the heavily educated, licensed practitioners of law are so confined, what, then, could the common citizen know of it?

     When legislation constitutes a lifelong career rather than a brief stint in public service, when unelected, faceless regulators have carte blanche to “make rules” with the force of law, and when judges who are essentially proof against correction can interpret black to mean white, there can be no “rule of law,” for the requirements of the law are inherently unknowable.

     We await arbitrary enactments and alterations by career politicians.
     We hang on judicial decisions about the meanings of ordinary English words.
     We swim through seas of “regulations” decreed by unelected persons according to processes unbound by Constitutional norms.

     The rule of law, once a vital organ in our philosophical body, has been wrenched out, hacked up, and left to rot.

     It’s time we admitted as much, buried the remains, and acted accordingly.

Monday, May 19, 2014

Quickies: Self-Defense for the Self-Defense Industry

Apologies for the lack of a post yesterday, Gentle Reader. I won't bore you with the reasons. Suffice it to say that at one point I was moving so fast that I crashed into myself coming around a blind corner.

Anyway, have a gander at the Obamunists' latest assault on our rights:

Gun retailers say the Obama administration is trying to put them out of business with regulations and investigations that bypass Congress and choke off their lines of credit, freeze their assets and prohibit online sales.

Since 2011, regulators have increased scrutiny on banks’ customers. The Federal Deposit Insurance Corp. in 2011 urged banks to better manage the risks of their merchant customers who employ payment processors, such as PayPal, for credit card transactions. The FDIC listed gun retailers as “high risk” along with porn stores and drug paraphernalia shops.

Meanwhile, the Justice Department has launched Operation Choke Point, a credit card fraud probe focusing on banks and payment processors. The threat of enforcement has prompted some banks to cut ties with online gun retailers, even if those companies have valid licenses and good credit histories.

“This administration has very clearly told the banking industry which customers they feel represent ‘reputational risk’ to do business with,” said Peter Weinstock, a lawyer at Hunton & Williams LLP. “So financial institutions are reacting to this extraordinary enforcement arsenal by being ultra-conservative in who they do business with: Any companies that engage in any margin of risk as defined by this administration are being dropped.”

A Justice Department representative said the agency is conducting several investigations that aim to hold accountable banks “who are knowingly assisting fraudulent merchants who harm consumers.”

“We’re committed to ensuring that our efforts to combat fraud do not discourage or inhibit the lawful conduct of these honest merchants,” the Justice Department said in a May 7 blog post.

But gun retailers say their businesses are being targeted in the executive branch’s efforts.

Clever, eh? The law, both statutory and "case law," is more firmly on the side of an individual right to keep and bear arms than it has been since U.S. v. Miller. But the Obamunists are determined to keep us from acquiring guns...rather, any more guns. So they've mounted a flank attack on the firearms industry: they've put intense pressure on the financial industry to deny them service.

These days, you don't have to be a lawbreaker to fear the weight of "the law," if we include the regulatory bureaucracies' power to inflict hardship on a company via onerous mandatory inspections and surrender of corporate records. Few who haven't been personally embroiled in such an inquisition have any idea how disruptive it is to business. For practical purposes, the company under the regulators' microscope must essentially cease to do business until the ordeal should end...and there's no guarantee that the ordeal will ever end.

Banks and credit card processors are the most heavily regulated category of business in these United States. As the dollar continues to deteriorate, ever more purchases are moving into the range where credit cards are the preferred (both by purchasers and vendors) method of payment. That makes payments processing an ideal "choke point" at which to apply strangulation pressure to any disfavored industry.

For firearms manufacturers, a healthy, reliable line of credit is a sine qua non. But of course, that requires a healthy, reliable banking relationship as well.

The C.S.O. is an accountant by trade. As the formation of a bank / payments processor that caters specifically to the firearms industry would seem to be the best response, I asked her what would be involved in creating such a bank. Her answer was, in essence, "Forget it." Regulations are once again the stopper; the federal regulatory authorities would ensure that such an institution would never open for business.

Washington's "assault weapon" is the regulatory bureaucracy: its de facto power to make law, its swelling cadre of armed enforcers, and Congress's unwillingness to rein it in. It has targeted the foundation of Americans' rights: the means we must have to defend them. What, then, must we do?