Quotation of the Day…

by Don Boudreaux on November 5, 2011

in Civil Society, Hubris and humility, Nanny State

… is from an 1835 “Minute” on India written by Thomas Babington Macaulay; it is quoted on page 322 of John Clive’s magnificent 1973 biography of Macaulay:

A government cannot be wrong in punishing fraud or force, but it is almost certain to be wrong if, abandoning its legitimate function, it tells private individuals that it knows their business better than they know it themselves.

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{ 85 comments }

Greg Webb November 5, 2011 at 11:30 am

it is almost certain to be wrong if, abandoning its legitimate function, it tells private individuals that it knows their business better than they know it themselves

But, that’s the whole point of today’s administrative state! Some people are just better and smarter than others! And, as a result, the better/smarter people should tell those not good/smart enough what to do. It leads to a more effective and efficient state. And, as long as this distinction is not based on race, it is not slavery.

Bastiat Smith November 5, 2011 at 11:50 am

Never mind the implication of Ricardianism on trade. It emphasizes that we are all different. So, some are more capable than others. And who better to make decisions than the people most knowledgeable and most capable of enforcement. Never mind that regulators are always one step behind or that they regulate with enumerable unintended consequence. Never mind that those hurt by trade are rarely compensated, in design, by those who benefit . Let’s just ignore the ideas of equality and liberalism. Those are archaic ideas championed by ideologues…. What we need is a stronger state.

Greg G November 5, 2011 at 11:52 am

I agree that the government should punish fraud or force but I am interested to know why you do not think that markets should be able to take care of fraud on their own. Won’t market participants tend to band together to identify, exclude and punish those who commit fraud even without the help of government? And don’t we have market prices for things even in societies where there is no government that can prevent fraud?

No doubt it is true that by preventing fraud government can make markets work better. But once you open the door to government trying to make them work better don’t you also open the door to any number of other laws that might make them work better?

And how should government raise the money to pay the cost of preventing force and fraud?

vidyohs November 5, 2011 at 12:16 pm

“A government cannot be wrong in punishing fraud or force”

There is a huge difference between preventing and punishing

Governments can no more prevent fraud or force, than they can command the tides. This is why government interference always causes such catastrophe, the attempt or the stated attempt to regulate so as to prevent something.

It is obvious that laws to prevent drug abuse are totally ineffective.
It is obvious that laws to prevent alcohol abuse are totally ineffective.
It is obvious that laws to prevent prostitution are totally ineffective.
It is totally obvious etc etc et. al.

The only thing government can do is “punish” fraud or force that has been identified, brought to its attention, and proven.

Methinks1776 November 5, 2011 at 12:22 pm

Exactly. It’s amazing that some people can’t understand the difference.

GAAPrulesIFRSdrools November 5, 2011 at 1:03 pm

All government laws are ineffective at preventing things that are proscribed in penal codes. Nobody disputes the “malum per se” of murder, given the the thousand of murders that happen every year.

Does that mean we should suspend all laws?

vidyohs November 5, 2011 at 5:46 pm

Were you asking me specifically, or was that a rhetorical question?

If you were directing it at my comment, then I would just suggest you reread my comment and figure out where you went wrong in your thinking.

If it is simply a rhetorical question, I would like to know what in my comment prompted it?
Tks very much.

vikingvista November 5, 2011 at 1:55 pm

There is probably some deterence effect for some people, but still a great point.

Methinks1776 November 5, 2011 at 2:01 pm

Laws against fraud and murder cost little. Sprouting an entire alphabet soup of regulatory agencies in a fruitless effort to prevent fraud and other bad outcomes costs much more than it’s worth.

GAAPrulesIFRSdrools November 5, 2011 at 2:27 pm

I agree about the regulatory morass. Its a heck of a lot easier to enforce proscriptive laws than prescriptive ones. I have a theory. If the law is so complicated that it requires a specialist to enforce it, its probably doing more harm than good.

Murder statutes: Relatively simple and self apparent-enforced by municipal and state generalists, with facts decided by jury of peers. Simple and obvious compliance.

Securities Laws. Complicated, morasses of unintelligible drivel written, interpreted and enforced by SPECIALIST attorneys. Compliance never really assured, myriad of inobvious ways to incur SEC’s wrath.

vikingvista November 5, 2011 at 2:35 pm

Words are cheap, laws are cheap. The enforcement usually isn’t. I realize private defense and justice against violent crimes is a tough sell even with this crowd, but private fraud protection should be an easy sell.

Gil November 6, 2011 at 12:16 am

You can’t prevent theft so you let burglars rob you blind anyway, right?

Jon Murphy November 5, 2011 at 12:23 pm

Not to mention the fact the market does a good job of punishing fraud in and of itself. Sure, it may take a while, but it does occur.

For example, we only found out Madoff (perhaps the most aptly named criminal of all time) was committing fraud when his bets began to collapse. Same with Enron.

vidyohs November 5, 2011 at 12:42 pm

I am glad you addressed this aspect of Greg G’s comment, and I applaud your comment.

May I add, that while sometimes the corrections do take a longer time than we would hope or may have expected, nothing about the world or trade is exactly predictable, life in all its aspects is fraught with risk, and any attempt to take the risk out, and regulate so that trade is exactly predictable, will certainly act to the detriment of trade and the people who engage in it.

Proof is in the pudding we eat today.

Methinks1776 November 5, 2011 at 12:45 pm

However, we were also lulled by the fact that there is an SEC which we are told will prevent fraud instead of institutionalize it (which is what the regulatory agencies actually do).

Enron’s fraud was not revealed when the firm began to collapse. The collapse occurred because someone actually bothered to read the 10-K. Wall Street analyst (fixed income, I believe), Jack Grubman, took Skilling to task on a conference call for not publishing balance sheets, prompting Skilling to call him an asshole on the call and that was kind of the beginning of the end.

Greg G November 5, 2011 at 1:16 pm

OK. Fair enough. I agree we should only expect government to punish fraud not prevent it all (although I think the likelihood of punishment will surely prevent some).

Even so, why not leave that entirely to the market in light of Jon’s point that ‘the market does a good job of punishing fraud” ?

And I am still wondering how the government should raise the funds to cover the cost of punishing fraud?

vikingvista November 5, 2011 at 2:05 pm

It shouldn’t. Such third party protection should be a purchasable service option for the parties involved. Private means of contact enforcement abound in the market and are all preferable to state imposition. Indeed, without the false sense of security ingrained by government claims of enforcement and recourse, the market would be more utilized and even more effective.

Jon Murphy November 5, 2011 at 2:56 pm

Although the market does punish fraud, the government should have its own punishment as well. After all, the criminals did deprive others of one of their natural rights (property). The funds raised for such should be gotten from taxes.

One could use the Aristoleian argument that Nature punishes all crimes, but even he argued for secular punishment.

vidyohs November 5, 2011 at 5:55 pm

I think you drew the wrong conclusion. The market will do the job of revealing fraud; but fraud is a crime, and crime begs for punishment. One of the legitimate functions of government is investigating and punishing crime. And, yes punishing crime does act as a deterrent, while it does not act as a preventive.

If we did not have the government performing its proper function, the market would reveal fraud and identify the perpetrators; but sans a means of punishment, the perpetrators of fraud could, and probably would, simply pick up and go to a new locale and proceed to operate fraudulently again.

That is an unacceptable solution and no free marketeer would support that.

vikingvista November 5, 2011 at 7:15 pm

“And, yes punishing crime does act as a deterrent, while it does not act as a preventive.”"

Again, I like your point, but deterrence is a form of prevention. To successfully deter is to successfully prevent.

vidyohs November 5, 2011 at 10:03 pm

@VV

My hair and I split it.

“To successfully deter is to successfully prevent.”

Not necessarily a lock my friend, to deter also means to discourage, or even to delay, neither of which are what I call prevention. :-)

House Of Cards & Economic Freedom November 5, 2011 at 7:55 pm

http://i.imgur.com/b7wHE.png

The spirit of George Stigler descends on Zuccotti Park and participates in Occupy Wall Street.

Methinks1776 November 5, 2011 at 7:59 pm

Not Jack Grubman. Jack was my competitor in telecomm. Richard Grubman was the Enron analyst. Ooopsie.

GAAPrulesIFRSdrools November 5, 2011 at 2:32 pm

Don’t forget the SEC didn’t stop ENRON and actually ignored relevant information that indicated Madoff was a fraud. Instead they were busy figuring out how to inflict International Financial Reporting Standards (IFRS) on their regulated entities, so the Big Four/er Farce can have a new revenue source reconfiguring corporate accounting.

Its interesting that over the decades as the SEC got more and more authority, financial disclosures became more complicated and less reliable.

Methinks1776 November 5, 2011 at 3:06 pm

…and less understandable and did absolutely nothing to stop fraud, which the creative geniuses simply moved further out of view and made it that much more complicated to uncover.

The SEC’s “mission statement” is “to maintain a fair and orderly market”. What the SEC actually engages in is ad hoc rule making in response to changes in the political climate and prevents people from acting in their own best interest (I don’t include fraud as something in one’s own best interest for several reasons, some or all of which are obvious to you) in order to (let’s be honest) encourage the ignorant to believe it will prevent them from losing money in the market unfairly (which it always is, of course. If they win, it’s fair, if they lose, somebody screwed them).

Of course, as with all government programs, the more ineffective the SEC is, the more power it gets.

vikingvista November 5, 2011 at 1:52 pm

“ why you do not think that markets should be able to take care of fraud on their own.”

They can, and for the reasons you give.

Greg G November 5, 2011 at 2:02 pm

vv

So is the position here that we should not have laws against fraud and taxes to pay for the enforcement of those laws?

Methinks1776 November 5, 2011 at 2:06 pm

He’ll have to check with the governing council of the Brotherhood of the Glorious Libertarian People’s Democratic Collective and get back to you with what position we “here” officially endorse these days wrt the a legal system.

Greg G November 5, 2011 at 2:15 pm

Methinks

I was asking for his opinion and I do expect that opinions will vary. Sorry if that wasn’t clear. If I am understanding your comment above correctly, you are in favor of some laws against fraud but opposed to others.

I am still interested in how you would have the government raise the money to cover the cost of enforcing those laws that you do favor.

Methinks1776 November 5, 2011 at 2:49 pm

Ah, yes, of course. I can’t tell you how often I ask for clarity on someone’s personal opinion by starting a sentence with “So, is the position here….” rather than “So, is it your position….”. Especially in a public space (in the sense that it is visible to all). Obviously, my mistake.

vikingvista November 5, 2011 at 2:07 pm

I doubt that I speak for others here. That is my position.

Greg G November 5, 2011 at 2:56 pm

vv

If we go to “private defense and justice against violent crimes” won’t such protection simply be unavailable to those can’t afford it? And won’t the wealthiest be able to enforce any type of “justice” they like in many cases?

And if that is an acceptable solution (Is that really what you are saying?) why isn’t it working better in the parts of the world with no functioning central governments and lots of people selling private security?

Jon Murphy November 5, 2011 at 2:59 pm

I gotta go with Greg on this one. One of the functions of government is to enforce laws and protect the general populace.

Honestly, I don’t think privatized law enforcement would work. All concepts of law would be arbitrary and the externalities are far too high.

Greg G November 5, 2011 at 3:05 pm

Methinks

By using the word “here” in that context I merely meant to invite others into the conversation not to assume that everyone would have the same views. You seem especially irritable today.

You are the one always telling me I should ask for clarification. So I ask again. What taxes do you (Methinks) favor to support whatever limited role for government you think we should have?

Methinks1776 November 5, 2011 at 5:32 pm

Oh, Greg G, this is like you using the term “rent seeker” any way you want and then expecting everyone to just understand you anyway. My bad.

A word of advice, though. When you’re getting frisky with a woman and she says “no”, don’t translate that into that special Greg G language where for all we know “no” means “yes”. That could get you into a surprising amount of trouble.

Greg Webb November 5, 2011 at 5:34 pm

Methinks1776, Greg G really has a problem with reading comprehension especially where it conflicts with his emotional needs for big government.

vidyohs November 5, 2011 at 5:59 pm

VV,
One of the few times you are wrong.

All the free market can do is reveal or expose the perpetrators of fraud. The free market has no enforcement powers, other than shunning; and, while shunning may protect those aware of the need for shunning, it is entirely too probable that there are many markets that will not be aware and will be sucked into the fraud.

As I said above, letting perpetrators of fraud go free to move to another locale and continue fraud is something no free marketeer would ever support.

Punishing fraud is a legitimate function of government.

vikingvista November 5, 2011 at 7:27 pm

“If we go to “private defense and justice against violent crimes” won’t such protection simply be unavailable to those can’t afford it?”

Only if markets suddenly stop working the they have in the past and present, and positive externalities mysteriously cease to exist. What would be different, is that it would be more efficient, have broader choices, and be more consumer-centric.

“And won’t the wealthiest be able to enforce any type of “justice” they like in many cases?

Unlike now? I think the late Johnnie Cochran, Bernie Madoff, and an entire political class might disagree with you–if they were to be honest. One advantage would be the ability to stop payment for services you don’t like.

“And if that is an acceptable solution (Is that really what you are saying?) why isn’t it working better in the parts of the world with no functioning central governments and lots of people selling private security?”

Better compared to what? Compared to the way it used to work in those countries, or compared to how it works in Kansas?

vikingvista November 5, 2011 at 8:40 pm

“All the free market can do is reveal or expose the perpetrators of fraud. The free market has no enforcement powers, other than shunning;”

That’s myopic vid. The market has many good solutions to fraud, to the point that the state is utterly unnecessary, and, I would say, undesirable.

First of all, shunning can be quite a devastating form of punishment in an advanced society where the difference between a modern Western standard of living and the poverty of self-sufficiency is quite dramatic. Shunning is also quite automatic once a reputation is sufficiently shattered.

But the market also lets you purchase various levels of protection according to what you as a consumer desire. Escrow, insurance/bonding, installments, down payments, references, reputation, credit histories, employment histories, contingencies, arbitration, and collateral just off the top of my head, and I’m hardly in the business. Chances are you won’t be doing business with him if you don’t trust him (ergo the term “confidence man”), but as routine due diligence you could require that he tell his banks to abide by your contract–which would make the bank transfer his assets into your name under the conditions of the contract. Or simply use an agreed to third party to hold sufficient compensatory funds.

Contracts are immensely versatile, and can be quite innovative. Perhaps the reason none of this occurred to you, is because we are led to believe that we don’t have to worry about such things, because the government has us covered. But such measures are utilized, even in the face of government law enforcement, which is often an unsatisfactory expensive last resort that nobody wants to have to deal with.

Finally, the reason fraud works, is because it is uncommon. People trade, because they benefit from it and like the deals they are getting. In that sense, the incentives of a free market can lead people to let their defenses down. Fraud can be individually devastating, but it will never be the downfall of a free market economy.

“and, while shunning may protect those aware of the need for shunning, it is entirely too probable that there are many markets that will not be aware and will be sucked into the fraud.”

Not likely. Especially in the age of the Internet, where such information is made available often for free to whomever might go looking for it. The bigger problem is keeping false accusations from rapidly damaging your reputation around the world.

“As I said above, letting perpetrators of fraud go free to move to another locale and continue fraud is something no free marketeer would ever support.”

First, they go free all the time in the current system. Perhaps without the false sense of security ingrained in us from an early age, that would not be the case. Most of what government law enforcement does, is make a record of an event you report. 99% of the time, that’s the end of the story. Reporting is valuable, but there is no reason private firms couldn’t do it cheaper and better.

Second, what punishment are you talking about? Execution? Public flogging? Pushing someone out of civilized society, making it impossible for them without rebuilding their reputations to get a decent job, loan, or even to purchase from a number of reputable venders, is hardly letting them “go free”.

Third, you are forgetting that the free market is about voluntary trade for goods and services. Imposing a state monopoly law enforcement service upon everyone whether they want it or not is the exact opposite of a free market.

“Punishing fraud is a legitimate function of government.”

Punishing fraud is legitimate. That’s where our agreement ends.

vidyohs November 5, 2011 at 10:20 pm

@VV

Late, tired. Get back atcha tomorrow.

Dan Phillips November 5, 2011 at 11:12 pm

And mine.

Gil November 6, 2011 at 12:19 am

Exactly.

Greg Webb November 5, 2011 at 2:59 pm

Greg G, as noted in the quote from the biography of Thomas Babington Macaulay noted above, government has certain “legitimate functions,” which include punishing fraud or force. I think that we are in agreement on that.

You said, “. . . I am interested to know why you do not think that markets should be able to take care of fraud on their own.”

First, you misunderstand the term “markets.” Markets simply represent the millions of transactions that people engage in each day. The operative word here is “people.”

Second, people or “markets” (if you prefer) do all sorts of things to prevent fraud and force including, among other things, written contracts so everyone knows what the terms are; sharing information as who honors, and who doesn’t honor, their contracts; mediation and arbitration to resolve contractual disputes, private security personnel, cameras, and other measures to prevent force; etc. Markets punish those who engage in fraud or force by sharing information about them, establishing penalties for breaching said contracts and defrauding others, etc.

Third, markets/people also establish governments to punish those who defraud others and/or use coercion or the threat thereof to steal from others. Markets/people understand what James Madison, in Federalist Paper No. 10, so famously said, “Men are not angels” therefore government is necessary. And, they also understand Mr. Madison’s further wise statements that people do not become angels merely because they become government officials. In fact, it is more likely that less than angelic people will seek government office in order to take advantage of others.

So the trick is to establish government to prevent the normal conflict arising among people, but also to oblige government to prevent less than angelic government officials from abusing the power that is entrusted to them. The solution was a written Constitution that established sovereignty in the people, required a representative form of government, established checks and balances including the separation of powers and federalism, limited the powers of government, and guaranteed certain freedoms to citizens.

You said, “Won’t market participants tend to band together to identify, exclude and punish those who commit fraud even without the help of government?

They do. Market participants or people, or better yet, citizens also require government to punish those who commit fraud and/or use force or the threat of force to steal from others. Citizens could do this without government, but they thought it was better to establish government and entrust it with limited powers to, among other things, establish a court system and enact criminal laws.

Citizens felt that they could not be impartial when it was themselves or friends or neighbors who was defrauded or had their property stolen. So, courts were established to make sure that there was an impartial trial by a jury of the defendant’s peers because one citizen should not have that much power over another to investigate, judge, and imprison or execute another citizen. Thus, a court system is a “legitimate function” of government.

You said, “And don’t we have market prices for things even in societies where there is no government that can prevent fraud?”

Government cannot prevent fraud. It can only investigate a possible crime, arrest a citizen if probable cause exists, conduct an impartial trial to determine if the citizen arrested is guilty, and enforce punishment through fines, imprisonment, and/or execution. The regulatory system gives the appearance that it can protect citizens from criminal activities, but they can’t. For example, the SEC gives the appearance that it is preventing fraud but, in reality, it could not catch Bernie Madoff or Alan Stanford even after several reputable people told the SEC that those two were engaging in fraud. The SEC staffers had better things to do like watch internet porn (true).

You said, “. . . once you open the door to government trying to make them work better don’t you also open the door to any number of other laws that might make them work better?”

Agreed! That is why the citizens demanded that governmental powers be limited and individual liberties be guaranteed. For people know, just as the Founding Fathers knew, that government officials, not being angels themselves, are likely to abuse the power entrusted to them.

You said, “. . . how should government raise the money to pay the cost of preventing force and fraud?”

Wrong! People voluntarily give the government that they set up the funds, through taxes, to carry out its legitimate functions. When government spends more than necessary to carry out those legitimate functions it exceeds its authority and steals from the taxpayers.

Greg G November 5, 2011 at 3:20 pm

GW

Considering how we usually clash, I was surprised to find myself agreeing with just about everything you wrote there. But I am puzzled about the “voluntary” nature of taxes that you describe. No matter what system you set up there will always be someone who disagrees and refuses to pay voluntarily. What middle ground is there between being prepared to use force to collect some taxes and simply seeing the whole tax system dissolve into an optional form of charity?

Greg Webb November 5, 2011 at 4:23 pm

Greg G, you said, “Considering how we usually clash, I was surprised to find myself agreeing with just about everything you wrote there.”

Our previous “clashes” have been over the administrative state and libertarianism.

I oppose the current administrative state with its emphasis on “experts” and implicit denigration of “non-expert” other citizens. That is the “song and dance” that the “less than angelic” government officials sell the public in order to maintain and enhance their power and access to taxpayer funds. Their goal is to divide and conquer so they can remain in power and help their cronies with taxpayer money.

I support liberty and believe that the Founding Fathers’ solution was the best choice. Corrupt politicians and their political cronies must be brought under control by requiring that the federal government’s powers be limited to those expressly enumerated in the Constitution and no more.

“Less than angelic” government officials will always be with us because, as Lord Acton famously said, “Power tends to corrupt. Absolute power corrupts absolutely.” Since government is necessary because people are not angels only some power should be conferred to “less than angelic” government officials. But remember that absolute power, or even a high concentration of power, must not be conferred on government because absolute power corrupts even the best intentioned people (and those aren’t the ones who run for office). And, the history of highly centralized societies has been poverty for the many and death to any who oppose the political elite. .

You said, “But I am puzzled about the “voluntary” nature of taxes that you describe.”

Since the people are sovereign (see the Declaration of Independence), they confer on government certain limited powers and responsibilities. They also confer on government the power to request, through taxes, funds necessary to carry out those limited powers and responsibilities. When government officials spend more than is necessary to carry out those limited powers and responsibilities, they are stealing from the citizens who enacted the Supreme Law of the Land that includes those limitations.

In monarchist, communist, fascist, and other totalitarian and authoritarian societies, the government owns everything and thus is entitled to take anything the citizens have. So sovereignty is vested in the ruler whether it be the king, Caesar, emperor, dictator, commissar, general, etc. Thus, they have the right to take taxes and, since they normally take so much, often have to use force and coercion to get the money from the citizens.

You said, “No matter what system you set up there will always be someone who disagrees and refuses to pay voluntarily.”

Yep. Our tax system is getting more oppressive as government becomes more centralized and the administrative state’s power increases. But, it is nothing like taxation in authoritarian and totalitarian systems. Currently, most people voluntarily pay their taxes. But, if taxes go up, look for more tax avoidance planning, less economic growth, and more stringent government enforcement policies including the criminalizing of even small discrepancies.

You said, “What middle ground is there between being prepared to use force to collect some taxes and simply seeing the whole tax system dissolve into an optional form of charity?”

I never look for the “middle ground.” I look for what best enhances freedom for the individual citizen. I advocate limiting taxes to no more than necessary to pay for legitimate government functions and no more. I also advocate limiting total government spending so “less than angelic” government officials cannot get around this and begin rewarding political cronies with taxpayer money. The vast majority of people will voluntarily pay their taxes, especially when they are much less than they are now and once they are assured that their taxes aren’t being wasted to reward political cronies and on stupid pet projects of corrupt politicians.

Greg G November 5, 2011 at 4:53 pm

GW

“I advocate limiting taxes to no more than necessary to pay for legitimate government functions and no more.”

Almost everyone would agree with your statement there but the devil is in the details. Different citizens will differ wildly on what they think is “legitimate.” The genius of the founders was to give us a method to settle those differences peacefully. If we follow that method, that should go a long way towards telling us whether or not the result was “legitimate.” Legitimate should mean something different than simply the best possible policy or the policy you or I find acceptable.

The founders themselves disagreed and argued fiercely about these issues. They deliberately chose language that was vague enough to allow for disagreement because that was the only way they could agree on a Constitution at all.

And the Constitution was almost defeated by the Anti-federalists, who feared centralized power and were the libertarians of their day. Their ultimate acceptance as legitimate, of things they didn’t like, was crucial to making this the country a country at all.

Greg Webb November 5, 2011 at 5:33 pm

Greg G, you said, “Almost everyone would agree with your statement there but the devil is in the details. Different citizens will differ wildly on what they think is “legitimate.”

It does not matter what individuals think now. The Founding Fathers expressly enumerated the legitimate function of the federal government in Article I, Section 8 of the Constitution.

The citizens of each State and municipality may decided for themselves what they consider legitimate functions for their State government or municipality as long as it does not breach the requirement that those governments are representative in nature.(i.e., “republican” as that term is used in the Constitution.) Also, the citizens of a particular State or municipality have the fundamental right to relocate to another State or municipality if he or she does not like the power that the citizens vote to give that State or municipal government.

You said, “The genius of the founders was to give us a method to settle those differences peacefully”

No. You really don’t know your history about the founding of the country. The genius of the Founding Fathers was to limit the powers conferred on the federal government, install checks and balances like the separation of powers and federalism in order to diffuse the power given the federal government, and guarantee certain freedoms to citizens in the Bill of Rights.

You said, “If we follow that method, that should go a long way towards telling us whether or not the result was ‘legitimate.’”

No. If we require that federal government officials obey the Supreme Law of the Land and the expressly enumerated powers, then the federal government will be engaging in only legitimate functions and no more. You seem to be advocating for a democracy and not a Constitutionally-limited Republic, which is what we have.

You said, “Legitimate should mean something different than simply the best possible policy or the policy you or I find acceptable.”

Words mean things. Legitimate powers of the federal government are expressly enumerated in Article I, Section 8 of the United State Constitution. What you, or even a majority, say you want the “legitimate functions” of the federal government to be does not matter. They have already been defined.

You said, “The founders themselves disagreed and argued fiercely about these issues.”

No. They debated and voted, then sent a Constitution around to the citizens of each State to ratify. They approved what was written, not because it was vague, but because of what it said. Before ratification, they insisted on a Bill of Rights, that the Founding Fathers promised to insert in the first session of Congress. They kept their word and did not play silly games with reinterpreting the clear meaning of the words as well as kept their promises.

You prevaricate in saying, “They deliberately chose language that was vague enough to allow for disagreement because that was the only way they could agree on a Constitution at all.”

They understood how language could be reinterpreted by disingenuous people, which is why Alexander Hamilton, James Madison, and John Jay wrote The Federalist Papers to counter how certain people who opposed the Constitution said that it would grant the federal government unlimited power. They clearly said that it did not.

You also said, “And the Constitution was almost defeated by the Anti-federalists, who feared centralized power and were the libertarians of their day.”

The Constitution was almost defeated because the people felt that the Anti-federalists had a point that disingenuous people could play games with words much as you are trying to do now. But, Hamilton, Madison, and Jay authoritatively argued that the Constitution did not confer unlimited power on the federal government and the citizens believed them. The Federalist vs. Anti-federalist debate proved conclusively that the Constitution did not confer unlimited power on the federal government because it would not have been ratified had the people believed otherwise.

If you knew anything about libertarianism, you would know that libertarians support government where its power is limited to certain legitimate functions and no more. And, you would know that libertarianism includes both the Federalist v. Anti-federalist views about individual liberty and limited government power. Your view, of unlimited governmental power because of “vague” language is the vile, stupid view of totalitarians and authoritarians everywhere. Yep, I think we all know how big-government advocates promise utopia but always deliver poverty and death.

You said, “Their ultimate acceptance as legitimate, of things they didn’t like, was crucial to making this the country a country at all.”

Total nonsense. The people listened to both arguments then decided that the Constitution, as advocated by those attending the Constitutional Convention, did not confer unlimited power on the federal government or give “less than angelic” government officials the ability to reinterpret the language of the Constitution to effectively give those “less than angelic” government officials unlimited power.

That is why we “clash,” Greg G. You believe in the current administrative state, while I believe in the Founding Fathers’ dream of freedom and controlled government. You need to grow up from your fantasy that government will work if only we have the right people running it.

Greg G, I knew that you would revert to your normal passive-aggressive style of argumentation. But, instead of pretending at knowledge, you should learn something about history, government, politics, economics, etc.

Shelby November 5, 2011 at 4:26 pm

Greg G
My interpretation of GW’s “voluntary” nature of taxes refers only to the government’s legitimate purposes like law enforcement, courts, low interest mortgages (NO!!!!), etc. I would definitely pay for services that keep me safe and uphold laws, and maybe a few other things, but that’s it.

As for the necessity for laws, a key element in promoting business investment (which includes job creation) is the comfort in knowing that the government isn’t going to burn down your business or clean out your bank account. The fact that our laws are upheld is a huge factor in our consistently stellar bond rating (now suffering under the weight of our absurd amount of debt). One of the most memorable moments in the stability of the U.S. was the peaceful acceptance of the Supreme Court’s decision on Bush vs. Gore (although I would like to flush them both). There was no rioting (maybe a little), but the government didn’t topple, and no one chopped off the heads of the Justices. The enforcement of our laws, although imperfect, creates an incredibly positive, productive business environment. Hopefully, it isn’t trashed by ridiculous overspending, corruption, regulations, etc.

All of this is not to say that self- regulation is not important. Abundant info on the Internet should (but probably won’t) eliminate any reasonable argument for “consumer protection” laws.

Greg G November 5, 2011 at 6:01 pm

GW

I am beginning to learn your jargon: passive-aggressive = still argues without getting pissed off after you throw a tantrum.

As you say this country was founded as a constitutional republic. In fact it was founded as a constitutional republic where virtually all political power was held by white, male, landowners, many of them slaveholders. These men realized they were participating in a great, but partial, expansion of political rights. They did not see that process as static. They saw it as ongoing and they provided us with a system that facilitated that process.

And despite your worst fears we have evolved into a constitutional democracy. Guess you will just have to continue to suffer the indignity of living in the most free and prosperous country in human history. Unless you chose to leave.

Greg Webb November 5, 2011 at 6:45 pm

Greg G, no, passive-aggressive is your technique of passively pretending to agree that there are limits on governmental power then springing to aggressive mode to say what you really think, which is that the Constitution was vaguely written to permit unlimited governmental power. That is just nonsense. BTW, Methinks1776 noted your passive-aggressive style before I did

The Founding Fathers intended to limit the federal government’s power so they clearly enumerated those powers in the Constitution. That was the Great Experiment. They also knew that a country founded on the principles of liberty would eventually throw off all of the lingering consequences of centralized government such as slavery.

We have not evolved into a democracy with unlimited government power. Not even close. And as people get more educated about the Constitution and the founding principles, the regressive movement will be thrown on the scrap heap of history along with monarchism, fascism, and communism,

We do live in a relatively free country that is prosperous because of those freedoms. And I will fight big-government idiots like you because this country is the last best hope for liberty. You, on the other hand, can easily move to any other country and feel the emotional joy of being protected (controlled) by big-government advocates like yourself. I know there are people in that country that believe in limited government and liberty. I think an exchange would be appropriate. Both countries would benefit. The US would benefit from an increase in intelligence, while the country that you depart to will have another “useful idiot” for their corrupt politicians and political cronies.

Greg G November 5, 2011 at 7:04 pm

GW

Actually I never said the Constitution gave the government “unlimited power.” That is your own straw man. I didn’t say it was vaguely written to provide unlimited power. I said it was vaguely written to make agreement possible. You are like a religious fundamentalist who thinks he is the only one with the correct understanding of the Bible.

You idealize the founders almost as much as you idealize the power of simply limiting government as a solution to every problem. It was the Founders who passed the Alien and Sedition Acts. How do they those laws fit with your views about limiting government’s powers????

One of the first things Washington did after taking office was to organize a military expedition to put down a tax rebellion. How does that fit with your views about limited government power?

Your view of history is childishly cartoonish.

Greg Webb November 5, 2011 at 7:23 pm

Greg G, I am busy with the LSU v Alabama football game. I will answer your silly conclusory statements and intentionally misleading questions once the game is over. In the meantime, why don’t you read the Declaration of Independence and the Constitution. You can get to The Federalist Papers later.

Invisible Backhand November 5, 2011 at 7:26 pm

Greg G wrote:

almost as much as you idealize the power of simply limiting government as a solution to every problem.

Now that I’ve spent some time on this site, I’ve been able to absorb some fundamentals of economics and political science by means of osmosis.

I clearly see now that the issue is not “problem-solving by central government” vs. “no problem-solving at all”; but, rather, “problem-solving by central government” vs. “problem-solving by each individual, who can then integrate, or adjust, his own solution with everyone else’s solution.”

The sorts of problems for which central government can effectively provide solutions are the usual ones for the classical liberal conception of the night-watchman state: a military, a police force, and a court system.

That pretty much covers everything government both ought to do and can do.

Thank you for listening.

Greg G November 5, 2011 at 7:57 pm

Hometeam IB

What taxes do you propose to levy to pay for those government activities that you do support? And how do you propose to collect them from those who refuse to pay? I hear those militaries can be expensive. These are the questions no one here is willing to answer so far.

vikingvista November 5, 2011 at 9:21 pm

“These are the questions no one here is willing to answer so far.”

I’ve been answering them for months, even when not asked to do so. Being ignored is quite different from being unwilling to answer.

Greg G November 5, 2011 at 9:25 pm

Quite right Viking. I appreciate your honesty. I didn’t consider you someone avoiding the question since you were clear you expected no services from government.

Greg Webb November 6, 2011 at 1:41 am

Greg G, you said, “Actually I never said the Constitution gave the government ‘unlimited power’”.

In a post above, you said, “Different citizens will differ wildly on what they think is ‘legitimate’”. Your statement implies that the Constitution does not specifically limit the powers of the federal government, and thus, the federal government may have unlimited powers if the citizens of today so decide. But the Constitution decisively says that those powers are limited and may not be changed except through the amendment process.

You said, “I didn’t say it was vaguely written to provide unlimited power. I said it was vaguely written to make agreement possible.”

Words means things. To say something is “vaguely written” is to say it has no meaning, and thus may be interpreted anyway one wants. I know of no Constitutional scholars or historians who say that the Constitution was “vaguely written” to reach an agreement. And, the plain language of Article I, Section 8 clearly limits the powers of the federal government.

You said, “You are like a religious fundamentalist who thinks he is the only one with the correct understanding of the Bible.”

LOL! You always resort to silly personal attacks when you cannot make a logical argument supported by objective, verifiable facts. Yet, you are the one who turns the whole rationale for the American Revolution and the Constitution on its head so that a Constitutional Republic with limited governmental power and guaranteed individual freedoms becomes a “democracy” where each generation decides anew what the legitimate functions of the federal government are and, presumably, what those individual freedoms are or, for that matter, if there are any. Now, that’s the religious dogma that only a silly leftist could preach.

You said, “You idealize the founders almost as much as you idealize the power of simply limiting government as a solution to every problem.”

Nope. I do not idealize the Founding Fathers for they were mere fallible men no more and no less. Their collaboration resulted in The Great Experiment where the people are sovereign, government power is limited and controlled, and certain rights and freedoms for the individual are guaranteed.

Limiting governmental power is not a solution for every problem. However, it is the only solution to the problem of entrusting less than angelic government officials with power over other citizens.

You said, “It was the Founders who passed the Alien and Sedition Acts. How do they those laws fit with your views about limiting government’s powers????”

The Founding Fathers did not pass the Alien and Sedition Acts. Alexander Hamilton pushed it, the Federalists passed it, and President John Adams, much to his later regret, signed it. Like I said before, power tends to corrupt and enough Federalists were corrupted to pass it. That is why the federal government’s power must be limited.

Less than angelic government officials will always try to exceed those limits as they are corrupted by power. That is why limitations on governmental power were clearly written down so that the people could call the government officials to account for exceeding such limitations. And that is exactly what the people did when they threw the Federalist Party out of power and soon out of existence for good.

Those laws do not fit with my view on limited governmental power or with the views of the citizens at the time. The result was the Alien and Sedition Act was quickly repealed and the people threw the Federalist Party out of power, and the people left the Federalist Party in droves so that it soon disappeared from the political landscape. You lose.

You said, “One of the first things Washington did after taking office was to organize a military expedition to put down a tax rebellion. How does that fit with your views about limited government power?”

The Constitution grants the federal government the power “to provide for the calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”. United States Constitution Article I Section 8. If you had taken the time to read the Constitution, then you would have known that it works perfectly well with my views. You lose again.

You then fall back to your usual silly personal attacks when you can’t make a persuasive argument by saying, “Your view of history is childishly cartoonish.”

Yet, it is your comments that reveal that you have not read the Constitution.

vikingvista November 6, 2011 at 11:38 am

“I would definitely pay”

Of course that has nothing to do with taxes. Taxes exist for what you or others would NOT pay for. Otherwise, they wouldn’t be taxes.

Greg Webb November 6, 2011 at 12:07 pm

Taxes are merely a means to raise sufficient revenue to pay for the legitimate functions of government. If a government official uses tax money to buy a suit he goes to jail for malfeasance in office.

SheetWise November 5, 2011 at 3:38 pm

Most fraud cases ARE handled by the private market — the only thing the state provides is the judge. Rarely does anybody involved in a fraud want the dispute to become a criminal matter — they want a settlement. They use their own attorneys, investigators, researchers, experts, and witnesses — and at their own expense, they negotiate. If that doesn’t work, the parties present it to the states judge.

If a fraud case becomes criminal, it would only be because the state is the victim, the victim has already determined that the perpetrator of the fraud has no assets, or that the victim actually anticipated revenge. The state is great at facilitating that last one.

Greg G November 5, 2011 at 8:23 pm

So after eight hours and dozens of replies, lots of people are willing to say which government activities they think are legitimate. But no one has been willing to say which taxes are legitimate, even to pay for those activities and how they are to be collected if people refuse to pay them.

Why will no one touch this? Is the question some kind of libertarian Kryptonite?

Greg Webb November 5, 2011 at 8:49 pm

Nope, idiot. Read my first comment again.

Greg G November 5, 2011 at 9:19 pm

You mean that part about people volunteering to pay taxes? Yeah, that ought to work.

Greg Webb November 6, 2011 at 1:53 am

Apparently it does. I paid my taxes voluntarily last year. Didn’t you? After all, you love big government and all. Also, see Flora v. US, 362 US Sec. 145 (1960) and the inside cover of the Instructions for completing your Federal Income Tax return.

vikingvista November 5, 2011 at 8:58 pm

“But no one has been willing to say which taxes are legitimate”

None are legitimate.

Greg G November 5, 2011 at 9:20 pm

How is that volunteering thing working?

vikingvista November 5, 2011 at 9:34 pm

What does that mean? Are you asking me if voluntary actions work? The answer is hardly open to debate. It is quite clearly the reason for the greatest and most rapid grown in human prosperity the world has ever seen.

So I guess the answer is, “Stupendously well”. That’s why I advocate for even more.

Greg G November 5, 2011 at 9:37 pm

No Viking. That question was meant for GW. Sorry if that wasn’t clear.

Greg Webb November 6, 2011 at 1:55 am

Greg G, see post above. Apparently, that voluntary thing is working out well for the federal government.

SheetWise November 5, 2011 at 9:40 pm

For the first half of the nations history, the feds were able to operate on specific consumption taxes, primarily alcohol. The limited number of producers supplying a large number of consumers made collection of this tax relatively easy during times when communication was somewhat primitive. In today’s commercial environment, implementing a national sales tax would be as simple as instructing retailers how to make a minor entry into their sales software — about as difficult as changing the retail price of gasoline. It’s simple. It’s flat. It’s fair. There will be many arguments about what the rate should be — but in that argument, the rich and poor will be aligned.

Greg G November 5, 2011 at 9:45 pm

Thank you SheetWise. That is a straight answer.

Greg Webb November 7, 2011 at 12:15 pm

Greg G, you said, “The concept of the legitimacy of rights and laws predates the Constitution.”

I agree. So did the Founding Fathers. That is why the Declaration of Independence says, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

You said, “You only have to look a little higher in this thread to find vikingvista expressing a very different view than you and I have about which government actions are legitimate.”

I am not sure why Vike would express a view on what the Constitution means since he does not like the Constitution and thinks it is not applicable to him. Vike, please let me know if I have stated your views incorrectly.

You said, “That is what I meant by saying that views on the matter will differ wildly.”

I agree that views may differ wildly. Everybody wants the Constitution to mean what they want it to mean. But, it really means what the plain language of the words says.

My experience is that most people have not read the Constitution. For example, in the 1840s, certain people falsely claimed that slavery was constittuional. They really took exception to the Declaration’s provision that “all men are created equal.” They said that slavery was constitutional and that the Declaration played no part in deciding what the Constitution means. They were wrong. The Declaration expresses the policy reasons underlying the Constitution. And, you have to read the Constitution with those policy reasons in mind. Incidentially, the Supreme Court got that wrong for a long time too. They were influenced by popular opinion at the time, but should not have been.

You said, “Not that I believe that government powers should be unlimited although I do expect you and I (and most other people) would each disagree on exactly where that point is when we get to specific cases.”

That is the problem. If the Constitution was intentionally vague, then it is possible for politicians to say it means this at this time and that at another. The Supreme Court has ruled that many laws are unconstitutional because they are vague and overbroad. If the Constitution itself were vague, then, using the Supreme Court’s test, it could theoretically rule that the Constitution itself is unconstitutional. The would be an absurd result. Thus, I cannot agree that the Constitution is vague or may be reinterpreted by each new generation as to what it means.

Words mean thiings. Article I Section 8 clearly limits the power of politicians at the federal level. It also places certain limits on State goverment. A constitution that is essentially rewritten each generation is no constitution, or Supreme Law of the Land, at all.

Greg Webb November 6, 2011 at 1:07 am

No, Greg G. Libertarians are repelled by incoherent and illogical arguments of big-government advocates.

Amendment XVI to the US Constitution makes the federal income tax a legitimate means by which the federal government may raise sufficient funds to pay for its expressly enumerated functions. Article I Section 8 of the Constitution provides that “the Congress shall have power to lay and collect taxes, duties, imposts, and excises” to find fund its authorized activities.

Do you have a logical point to make?

Greg G November 6, 2011 at 7:35 am

GW

You continue argue tirelessly against the straw man of pure democracy with unlimited powers for the majority without even the dimmest glimmer of recognition that I am describing a Constitutional Democracy. We are, and should be, much more democratic than the days when political power was limited to white, male landowners. The power of the majority IS still limited by the balance of powers and the language of the Constitution, as it should be. Fortunately, it is the Supreme Court, not Greg Webb, that decides what that means.

The Founders argued about what the language in the Constitution would mean from the time they started even discussing the possibility of agreeing on a Constitution. That debate never stopped. Yes, Hamilton did push the Alien an Sedition Acts. A few comments ago he was one of the Founders whose writings you were recommending to me. Oops! And you forgot to mention that they were passed by a Congress filled with the Founders. Oops!

And the bulk of the Alien an Sedition Acts was not repealed as you inaccurately claimed. It expired due to a sunset provision. Oops!

And the part that was repealed was repealed by the Democratic-Republicans whose very name tells you that, even then, many of the Founders were seeking to move to a more democratic constitutional democracy. Oops!

I am surprised you didn’t know all that. So much for your unsupported conclusory assertions.

Greg Webb November 6, 2011 at 11:32 am

Greg G, you said, “You continue argue tirelessly against the straw man of pure democracy with unlimited powers for the majority without even the dimmest glimmer of recognition that I am describing a Constitutional Democracy.”

No. I saw that you used the term “Constitutional Democracy”. But, you play silly games with words to obscure your meaning. Otherwise, you would not, in a post above, have said, “Different citizens will differ wildly on what they think is ‘legitimate’”. Your statement implies that the Constitution does not specifically limit the powers of the federal government, and thus, the federal government may have unlimited powers if the citizens of today so decide. And, that simply is not true,

Words mean things. You use high-sounding terms like “Constitutional Democracy” yet no Constitutional scholar or historian uses that term to describe the form of government the US has. And, you say that the Constitution is “vaguely written” and may be reinterpreted anyway one wants, which is the argument of the regressives who say we have a “living Constitution”. All that is simply nonsense used by corrupt politicians, political cronies, and “useful idiots” to the first two in order to steal from the taxpayers by exceeding the limits clearly established in the plain language of Article I Section 8.

You said, “We are, and should be, much more democratic than the days when political power was limited to white, male landowners.”

It is naive to assume that the principles espoused with the country’s founding would be effected throughout the nation with the mere ratification of the Constitution. It is also naive to say that a written document like the Constitution changed to create a new type of government that was necessary to achieve the founding principles. But, as Methinks1776 already noted, you play fast and loose with the meaning of words, and now, with historical facts as well.

You said, “The power of the majority IS still limited by the balance of powers and the language of the Constitution, as it should be.”

No. Governmental power is limited by Article I Section 8. The purpose of these limitations is to prevent “less than angelic” government officials from abusing the power entrusted to them. There is no “balance of powers” in the Constitution. The “balance of power” is a term used to describe the situation between the US and the Soviet Union during the Cold War. LOL! You really don’t know much about history or the founding of the country.

You said, “Fortunately, it is the Supreme Court, not Greg Webb, that decides what that means.”

LOL! Yep, and that Supreme Court is never fallible, is it? So, if the Court decides, as it once did in the Dred Scott decision, that people can be property again, then, to you, that will be what the Constitution means.

You said, “The Founders argued about what the language in the Constitution would mean from the time they started even discussing the possibility of agreeing on a Constitution.”

With this silly statement, you reveal that you do not understand how legislatures and constitutional conventions work. No group of people ever gets together and knows each other’s minds and reasoning so well that they never have to talk before creating a law or Constitution. Their purpose is to discuss and debate. But, once the discussion and debate are finished, a vote is taken on each issue. Then, when the final document was prepared, the members of the Constitutional Convention signed the Constitution.

You said, “That debate never stopped.”

Yep. It did. On each issue, the members of the Convention voted to stop debate and vote. Those who argued afterward simply wanted to change the meaning of the plain language. We call those people corrupt politicians, political cronies, and “useful idiots” to the first two.

You said, “Yes, Hamilton did push the Alien an Sedition Acts. A few comments ago he was one of the Founders whose writings you were recommending to me. Oops!”

LOL! Back to the silly personal attacks, I see. All men are fallible even, and especially, when they become government officials. As James Madison wisely said, “Men are not angels”. That is particularly true when they are subject to the corrupting influence of power. Consequently, governmental power must be, and is, expressly limited. Thanks for proving my point.

Also, you really should read The Federalist Papers despite Hamilton’s failings (OMG, he also cheated on his wife). The Founding Fathers were fallible and imperfect people. But, that does not mean that we don’t read and value the Constitution. Only stupid statists and French Revolutionaries throw away things of value because of imperfections.

You said, ” And you forgot to mention that they were passed by a Congress filled with the Founders. Oops!”

Which is why governmental power must (and is) limited. Thanks for proving my point again.

You said, “And the bulk of the Alien and Sedition Acts was not repealed as you inaccurately claimed. It expired due to a sunset provision. Oops!”

And, that means that the Alien and Sedition Act was no longer in effect, doesn’t it. It’s nice to know that you actually can read, comprehend, and distinguish differences in the meaning of words Greg G.

Thanks for falling into my little trap proving that you can distinguish meanings, which proves that, even to you, words mean things. And Article I Section 8 means what it plainly says – the power of the federal government is limited to those powers expressly enumerated in the Constitution.

Please forgive my little subterfuge. I knew that you were disingenuous with your silly statements about “intentionally vague”. And with the right encouragement, you proved that words means things to you . . . except, of course, when you disagree with them as you do with the Constitutional limitations on governmental power.

You said, “And the part that was repealed was repealed by the Democratic-Republicans whose very name tells you that, even then, many of the Founders were seeking to move to a more democratic constitutional democracy. Oops!”

LOL! I thought you said that the Alien and Sedition Act “expired” and was “not repealed”. Now you say that a portion was “repealed”. Perhaps you should get your story straight before you post.

I also see that you are mangling history again. The Republican Party was formed in 1854. Based on your “analysis” of history, that means the country shifted back to a Republic at that point. LOL! That’s hilarious!

Greg G, you really should stop pretending at knowledge until you educate yourself about history, government, politics, economics, etc.

Greg G November 6, 2011 at 3:32 pm

GW

If you ever do find someone who really believes that government should have “unlimited powers” and that the Constitution “may be reinterpreted anyway one wants” you are well prepared to argue against them. That is not my position no matter how many times you try to assign it to me.

In between the view that every part of the Constitution has only one possible interpretation – and the view that it could mean anything at all – is a vast space were reasonable people can, and always have, disagreed about specific cases.

Greg Webb November 6, 2011 at 4:23 pm

Greg G, you said, “If you ever do find someone who really believes that government should have “unlimited powers” and that the Constitution “may be reinterpreted anyway one wants” you are well prepared to argue against them. That is not my position no matter how many times you try to assign it to me.”

That is good to hear. I hoped that you were not one of the “living Constitution” people. If I misunderstood your words, I sincerely apologize.

You also said, “In between the view that every part of the Constitution has only one possible interpretation – and the view that it could mean anything at all – is a vast space were reasonable people can, and always have, disagreed about specific cases.”

That is where we disagree. Words mean things, and the Founding Fathers would not have said what the powers of the new federal government are if they did not intend to limit them to those expressly enumerated in Article I Section 8.

The Constitution is like a contract. The parties to the contract may argue about the terms, but the courts, if the dispute cannot be resolved, decide by using several techniques for determining what was the contract say. The technique most commonly used is the plain language of the contract. The next most commonly used technique is what the parties intended at the time the contract was written.

Greg G November 6, 2011 at 5:15 pm

GW

And we have always needed courts to be there to settle these types of disputes. Of course the courts don’t always get it right but, in my opinion, having them in place to settle disputes peacefully is better than relying on battles between private security forces. I am confident we agree on that much.

I have never used the phrase “living Constitution” but I do think the consensus understanding of what it means does evolve over time. I don’t believe the Alien and Sedition Acts would be accepted today the way they were in 1798. Their constitutionality was not challenged in court back then, but if it had been the Federalist Supreme Court would have probably backed them. I don’t believe a single Supreme Court member would back them today. That change represents an evolution of the understanding of what the Constitution means. And a change for the better in my opinion.

Another example would be Brown versus Board of Education. I don’t believe that a majority of those who approved the amendments that made that ruling possible intended full desegregation. Even so, I think that was a good ruling that represents the consensus view today even if that was not the case in the 19th century.

Greg Webb November 6, 2011 at 7:42 pm

Greg G, you said, “And we have always needed courts to be there to settle these types of disputes. Of course the courts don’t always get it right but, in my opinion, having them in place to settle disputes peacefully is better than relying on battles between private security forces. I am confident we agree on that much.”

I agree that courts are beneficial. But, currently, the courts are overwhelmed with cases and require that many litigants settle the matter so it does not go to trial. Also, sometimes the judge will require mediation and/or arbitration instead of letting the matter proceed to trial. So there is a lot of private action designed to resolve disputes that does not involve battles.

You said, “I have never used the phrase “living Constitution” but I do think the consensus understanding of what it means does evolve over time.”

I am not sure what you mean by the “consensus understanding.” The “living Constitution” argument has been made by Senators and Representatives who feel that there are no limits on the federal government’s power. So, needless to say, I don’t like it. It is how they justify rewarding political cronies with taxpayers money.

You said, “I don’t believe the Alien and Sedition Acts would be accepted today the way they were in 1798. Their constitutionality was not challenged in court back then, but if it had been the Federalist Supreme Court would have probably backed them. I don’t believe a single Supreme Court member would back them today. That change represents an evolution of the understanding of what the Constitution means. And a change for the better in my opinion.”

The Alien and Sedition Acts were unconstitutional infringements on the freedoms of the press, speech, and association. My understanding is that the Democratic-Republicans denounced them as being both unconstitutional and designed to stifle criticism of the administration, and as infringing on the right of the states to act in these areas. They became a major political issue in the elections of 1798 and 1800.

Courts make mistakes. Sometimes they rule things constitutional that simply aren’t. The Dred Scott decision is a perfect example of that. People, given the founding principles, can never be property.

You said, “Another example would be Brown versus Board of Education. I don’t believe that a majority of those who approved the amendments that made that ruling possible intended full desegregation. Even so, I think that was a good ruling that represents the consensus view today even if that was not the case in the 19th century.”

Segregation was always unconstitutional. Brown v. Board of Education was also unconstitutional because it coerced people into busing their kids to schools that were not in their neighborhood. It was an attempt to fix the effects of unconstitutional actions by state and local government from years before. I disagree with the decision because you cannot fix a wrong with another wrong. But, you can require that State and local governments eliminate laws requiring segregation.

Greg G November 7, 2011 at 6:55 am

GW

The concept of the legitimacy of rights and laws predates the Constitution. You only have to look a little higher in this thread to find vikingvista expressing a very different view than you and I have about which government actions are legitimate. That is what I meant by saying that views on the matter will differ wildly. Not that I believe that government powers should be unlimited although I do expect you and I (and most other people) would each disagree on exactly where that point is when we get to specific cases.

Greg Webb November 7, 2011 at 1:23 pm

Greg G, you said, “The concept of the legitimacy of rights and laws predates the Constitution.”

I agree. So did the Founding Fathers. That is why the Declaration of Independence says, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

You said, “You only have to look a little higher in this thread to find vikingvista expressing a very different view than you and I have about which government actions are legitimate.”

I am not sure why Vike would express a view on what the Constitution means since he does not like the Constitution and thinks it is not applicable to him. Vike, please let me know if I have stated your views incorrectly.

You said, “That is what I meant by saying that views on the matter will differ wildly.”

I agree that views may differ wildly. Everybody wants the Constitution to mean what they want it to mean. But, it really means what the plain language of the words says.

My experience is that most people have not read the Constitution. For example, in the 1840s, certain people falsely claimed that slavery was constitutional. They really took exception to the Declaration’s provision that “all men are created equal.” They said that slavery was constitutional and that the Declaration played no part in deciding what the Constitution means. They were wrong. The Declaration expresses the policy reasons underlying the Constitution. And, you have to read the Constitution with those policy reasons in mind. Incidentally, the Supreme Court got that wrong for a long time too. They were influenced by popular opinion at the time, but should not have been.

You said, “Not that I believe that government powers should be unlimited although I do expect you and I (and most other people) would each disagree on exactly where that point is when we get to specific cases.”

That is the problem. If the Constitution was intentionally vague, then it is possible for politicians to say it means this at this time and that at another. The Supreme Court has ruled that many laws are unconstitutional because they are vague and over broad. If the Constitution itself were vague, then, using the Supreme Court’s test, it could theoretically rule that the Constitution itself is unconstitutional. The would be an absurd result. Thus, I cannot agree that the Constitution is vague or may be reinterpreted by each new generation as to what it means.

Words mean thiings. Article I Section 8 clearly limits the power of politicians at the federal level. It also places certain limits on State government. A constitution that is essentially rewritten each generation is no constitution, or Supreme Law of the Land, at all.

vidyohs November 5, 2011 at 12:17 pm

Excellent choice of quote, sir Don.

dsylexic November 5, 2011 at 1:14 pm

oh man.i really wish you wouldnt quote macaulay wrt india.he single handedly introduced central planning in education in india,destroying the private fee/philantrophy supported schooling that existed with the sole aim of producing bureaucrats for the british raj.
bad role model.
whatever be the words he uttered from time to time,he ultimately was a horrid central planner.entirely avoidable as a hero

Stone Glasgow November 5, 2011 at 3:05 pm

I don’t think government has any business policing fraud. That is easily accomplished by market participants much more efficiently. Their job is to use force to protect citizens from force.

Sometimes protecting people from force involves telling them how to run their businesses.

vikingvista November 5, 2011 at 9:03 pm

Forcefully keeping another’s property from them (having acquired it under false pretenses, which is what fraud does) is a kind of force. But otherwise, I agree with you. Private fraud protection is sufficiently good, compared to the abysmally poor protection provided by governments, that I can’t see how even a pragmatic libertarian can think that that particular government service justifies the violent state action against innocent citizens to confiscate their property in the form of taxes.

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