Three Views of The Concept of “Individual Rights”

There are essentially two views on individual rights today:

(1) They are provided by positive law, by a majority or super-majority. So, for instance, you have rights because a super-majority of people ratified the Constitution and that is respected down to today.

(2) They are based in some sort of “transcendent morality”. Provided by god or something like that. Without a supreme being there would be no rights.

Group 2 will criticize group 1 by saying that they don’t actaully advocate rights since they are just permissions granted by a majority (or super-majority) of people. Group 1 will criticize group 2 by saying that there is no scientific evidence for this “transcendent morality” that supposedly establishes rights.

The criticism that both of these groups make of the other has some merit. Since there is no evidence of god and it must be accepted on faith, which is nothing more than somebody’s feelings, then this view of rights seems to have no basis other than in one’s feelings. If rights have no basis other than in the majority’s feelings, then they are only necessary so long as the majority feels that way.

Ayn Rand proposed a different approach. She presents rights as an aspect of her overall system of morality. Moral principles are essential according to Rand because: (1) “Existence exists”. In other words reality is what it is, and has a certain nature. (2) Human beings also have a certain nature, and *if* they want to live, they need to take certain actions. (Grow crops, hunt for animals, build shelter, make clothing, etc.) Human beings must adopt certain “mental strategies” or “guides to action” that will generally lead them to obtain the things they need to live. These “guides to action” are necessary because the human mind has trouble dealing with numerous concrete things in reality without tying them together mentally and recognizing that they are sufficiently similar to other concrete things to be treated the same. For instance, if you have no concept of, “tiger”, then you will treat every such animal you encounter as behaviorally and physically unrelated to the previous tigers you’ve encountered, and you will fail to recognize the benefits and dangers of being around such an animal, and will tend not to deal with tigers succesfully.

Such “mental strategies” or “guides to action” can be called “virtues”. The dictionary has various definitions of “virtue”, but the closest one to what is meant here is “a good or useful quality of a thing.” A human being has a “good or useful quality” if he adopts these guides to action because they will help him to live. For instance, human beings must judge others to determine if they are a benefit or a danger to their survival. This is the virtue (the guide to action) of justice. Human beings must generally refrain from lying when dealing with others in order to maintain their trust so that they will want to deal with them in the future. (This is the principle/virtue of honesty.) Human beings must act in accordance with these principles because simply holding them as ideals without taking action in accordance with them will cause your mind to slowly become disconnected from reality and will make rational thought more difficult. (The principle/virtue of integrity.)

Similarly, the principle of “individual rights” is a guide to action when dealing with other human beings. Since other human beings can be assumed to want to live just as much as you do, then you must give them an “initial presumption” that they will take action to maintain their lives. They will produce the material values necessary for their survival -property. Just as you must not have your property taken from you by means of physical force without your permission, so must they. As such, you must adopt a sort of baseline guide to action when dealing with all other human beings. This is the principle of individual rights, and the specific right that encompases property is the right to private property. (More generally, all rights are subsumed under “the right to life”, which means the right to live the life of a rational being.) If individual human beings are going to live in a social environment and gain the benefits of living together, they must have their individual rights respected:

“‘Rights’ are a moral concept — the concept that provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others — the concept that preserves and protects individual morality in a social context — the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law.” (Man’s Rights, by Ayn Rand)

As an aside, the concept of “government” comes in because there is a temptation to “cheat”, and violate the rights of others while hoping that they will still respect yours. For instance, there is the temptation to rob someone at gunpoint and take their property, or just to pilfer it while they aren’t looking. If you are suspected of this, though, then others will use force in retaliation to stop your initial use of force. Government helps keep people honest by promulgating a list of prohibited acts that are widely-recognized as rights violations. Additionally, it isn’t always easy for others to tell who the aggressor is and who the victim is in a given situation. For instance, if you come upon someone with a gun held on him, is he the victim or the aggressor? Perhaps the person holding the gun on him was just robbed, but perhaps he is the robber? Government is created to provide for an orderly protection of individual rights by a recognized central authority that everybody generally trusts to be a rights-protector.

Going back to where we started: How is this view of individual rights different from groups 1 and 2? Both group 1 and 2 tend to present the concept of “rights” as something that is “nice to have”, but as unessential to the task of living one’s life. Both group 1 and 2 tend to think that a working social order is somehow possible even without respect for individual rights. They generally see rights as “altruistic” -a restraint from complete self-interest. Group 2 says rights are a gift from god, but if they are violated by persons here on Earth, there won’t be any consequences for doing so. (You might go to hell when you die, is all.) Group 1 says that the majority of people just feel that rights are nice to have, but think that a functioning society is possible without rights, and might even be more “efficient”. Ayn Rand says that “society” is nothing more than a number of individuals, and if the individual cannot live in society, then there can be no society. Ayn Rand’s concept of individual rights holds that they are necessary for the individual person to live in a social context, and that that “society” is only good to the extent that it is beneficial for the individual to live in it.

In essence, both groups today are partly right and partly wrong. Group 2 is right that group 1 seems to have no basis for rights other than the whim of the majority. Rand’s conception of rights isn’t “whim”, but the “law of nature”, i.e., the law of identity. Human beings are what they are -they have a certain nature. If they are going to live in a social environment, then others must respect their life and property by refraining from the use of force “as an initial matter”. I say “as an initial matter” because once a specific individual has demonstrated with a sufficient level of certainty that he will not refrain from the use of force to deprive others of their life or property, then force can and should be used in retaliation.

A society that tends not to respect rights will not exist for long because the individuals that comprise it cannot survive. Rights have a functional basis in the facts of reality.

Group 1’s criticisms of Group 2 has merit insofar as group 2 can present no evidence for their “transcendent” basis for individual rights. I’d also note that regardless of whether Group 2 is right about the existence of god, if they believe that reality has a certain nature, and to the extent that they want to live, then Rand’s conception of rights should also be persuasive to them, and can form the basic intellectual foundation upon which a government can be constructed, regardless of whether we all agree about the existence of a creator.

Judging Men

Hugh looked up the length of the pipe. From his position, it really could be considered “up” because centripetal acceleration was at a maximum here. The pipe was a uniform two meters in diameter, and it ran from where he stood, on the inside of the outermost wall of the crew habitat, all the way to the engine. The crew habitat of the interplanetary space ship Maine was like a large, circular bicycle wheel with a long metal cylinder, about a fourth its diameter, running through and perpendicular to its center. The crew habitat spun relative to the cylinder, which was the unmanned, fusion-powered engine of the Maine. One end of the pipe Hugh was in terminated when it reached the engine cylinder. The other end of the pipe terminated in the irsing door that Hugh currently stood on. When the Maine was in “dry-dock” for engine repairs, and the crew habitat wasn’t spinning, the pipe could give quick access to an entry hatch on the engine. When the crew habitat was spinning relative to the engine, the entry hatch could periodically be seen by an observer inside the pipe as it passed over the hatch, but it would be impossible to open in the short time it was in proper position.

While the ship was traveling in space, the pipe Hugh was in served a less glamorous function. All along the pipe were small openings that allowed the material collected from the ship’s human-waste-removal units to empty into it. Centrifugal force and air pressure than forced the waste material towards the irising door, which was periodically opened to empty the material into space. It was Hugh’s job to see to it that the tunnel remained clear of obstructions and clogs. Every Tuesday, Hugh would clean a different section of the pipe, 15 meters ahead of the section he had cleaned the previous week. By custom, all of the apprentices on ship were supposed to take turns at this weekly duty, but the Junior Crewman in charge of making the duty roster each week had decided that Hugh would always clean the pipe. The J.C. had a grudge against Hugh because his father had once been laid off by the company Hugh’s father used to own, before the Chinese Prosperity Alliance Space Expeditionary Force had annexed the Earth’s moon and nationalized all non-C.P.A.-owned businesses.

(Read More: judgingMen-2017)

Corporations as Contract and Government Financing in a Free Society

The philosophy set forth in the fiction and nonfiction of
Ayn Rand establishes an underlying intellectual framework for a
free society. Rand was like a physicist who deals with broad
abstractions about the nature of reality. The engineer then takes
these ideas and builds, among other things, the automobile.
Also like the physicist, Rand the philosopher dealt with the
underlying ethical principles of a free society, but left many of
the details of how a government should be “constructed” to
future intellectuals in the field of law and jurisprudence.1 The
aim of this paper is to help fill in some of the details as to how a proper government should be constituted. Specifically, this
paper deals with the issue of governmental financing in a free
society.  (Read More: Corporations as Contract and Government Financing in a Free Society)

Why Act on Principle?

I recently said to a friend that any form of “gun control” is an initiation of physical force, and that allowing even a little initiation of physical force abrogates the entire principle of individual rights to life, liberty and property. When I thought about this some, I realized that the question might actually have been this: “Why act on principle at all? Why can’t you occasionally violate a principle without throwing it out altogether?” This is a good question, even if my friend wasn’t actually asking it, so I will endeavor to give an explanation to something he may or may not have actually been asking.

First, what is meant when we speak of a “principle”? I will start with an example and then move from there to a definition. Let’s consider the principle of respecting the property rights of others. I’ll reduce this to the following maxim: “Do not take the property of others without their consent.”

But, why shouldn’t I just occasionally steel when I can get away with it? For instance, when I go to the grocery store, I could take a few items and walk out without paying. If I stuck to stealing food, I might get away with this indefinitely. So why don’t I?

If I’m going to start stealing from the grocery store, I need to develop a methodology to maximize my chances of success. Lets take a look at my “game plan” for stealing from the grocery store:

When I go into the store, I have to check for security cameras.

I have to wait until employees aren’t watching. Once I’ve stolen the items, I’ve got to casually head outside, still checking to see if employees, store customers, or the manager have noticed me stealing from the store. These people are now all potential enemies to me –a threat to my existence- so I cannot trust any of them. I would constantly have to be “looking over my back”, checking to see if anyone noticed me stealing.

I have to develop a plan prior to going in, as this will reduce my chances of getting caught. So I will spend some time working it out. This is time I could have spent doing other things.

I probably want to go in beforehand, and scope out the store, but this could look suspicious -going in, looking around and then returning soon thereafter. So, maybe not?

What will be my “take” from stealing from the grocery store? I can only steal small items, so probably my “gain” will be less than $50.

There are also the penalties involved, if I’m caught. If I steal less than $50, then I am only looking at a fine in Texas, but the fine is up to $500, plus the store can sue me for treble damages and attorney’s fees. If I steal more than $50 of merchandise, I’m looking at anywhere from six months to a year in jail, plus big fines, plus the store suing me.

I think it’s legitimate to consider the government-imposed penalties like this in my analysis since I am not an anarchist -I actually think one of the major ways the government protects rights is by imposing sufficient “pain” or “cost” on the person committing the crime that they won’t want to do it. Criminal laws have a “deterrent effect”. (This isn’t the only reason for criminal penalties, however, they also serve as a “restraint”. For instance, locking up a murderer prevents him from committing more murders.)

Additionally, many jobs will be unavailable to me if I’ve been convicted of a crime involving “moral turpitude” like theft. Many employers won’t hire you with a criminal record for theft or fraud.

After any particular episode of theft from the grocery store, I might get $50 to $100 in merchandise, if I don’t get caught. I also stand to loose up to a year of my time in jail, plus all of the fines and civil penalties. That seems like a very “bad bet” to me. All of these “costs” associated with such a life of crime will also add up to feelings of anxiety about getting caught. Anxiety is not a pleasant emotion to feel on a chronic or long-term basis. (I also suppose I could eliminate the anxiety by refusing to think or consuming a lot of alcohol, but that means I’m really likely to get caught if I don’t think about how to get away with it.)

You should also consider the long-term risks of a policy of theft. You might get away with theft once or twice, but the more you do it, the more likely you are to get caught. It hardly seems worth all that pain for $50 of “free” stuff from the grocery store.

I’ve shown that stealing isn’t actually “free”, in terms of your effort and thought. There is actually a “cost” associated with every time you steal. There is the cost of all the mental energy and labor you expend executing your thefts successfully. There is the cost associated with the risk you’ll get caught. Furthermore, the greater the value of the things you are stealing, the greater the risk, because you will face more severe criminal and social penalties. More people will be watching, the more the valuable items, so the more effort you must expend. For instance, it’s a lot harder to steal from a jewelry store than a grocery store because everything is under glass. That means additional labor, time, and energy goes into a jewelry heist.

It seems easier to me to just work a legitimate job, and earn the money I need to buy things at the grocery store. Then, when I walk into the grocery store, I can just get the stuff I want, pay for it, and then walk out.

Additionally, as we saw, if you start stealing from the grocery store, you will wind up “juggling” in your mind, so many variables in trying to pull off a grocery store theft that it will overload your mind’s capacity to deal with all of them at once. This actually points to an important purpose that a “principle” serves. A “principle” is a sort of concept. A concept is a mental summation of relevant observed facts into a generalized “mental tag” -a word and/or a definition. (Although a “principle” is more of a “proposition” –a series of words.) It allows your limited mind to deal with many aspects of reality simultaneously, which would otherwise overwhelm it. You can deal with three or four concrete items as individuals in your mind at one time, but any more than that, and you cannot hold it all successfully. Your mind disintegrates into mental chaos without concepts, and when it comes to concepts of action, which is all I think a “principle” is, your behavior will become equally chaotic.

Given all of this discussion, I will define a “principle” as: “A consistent standard of action you use in the face of a particular set of factual circumstances.”

For instance, “Don’t take the property of others without their consent,” is a standard of action that I use whenever I face a particular set of facts. When I see a man-made thing that doesn’t occur in nature, and I didn’t produce it with my own effort, I do not physically appropriate it for my own purposes without the owner’s consent.

Can there be “exceptions” to this principle? For instance, if you break into a cabin when you are stranded in a snow blizzard in the mountains, have you taken the property of the owner without his consent? I believe this isn’t actually an “exception” to the principle, because “factual circumstances” are different from the grocery store example. You can articulate facts that make the situation different from going into the grocery store and taking groceries without the owner’s consent. The primary factual circumstance that is different is that you are willing to compensate the owner of the cabin at a later date for any loss, so it isn’t likely to be without his consent. (This also gets into the issue of what “consent” is, and whether the owner’s consent has to have a rational basis, but I leave that for another discussion.) Another “factual circumstance” that is different is that it is a “life and death emergency”, which means it is an extremely low-probability event that isn’t likely to occur very often –it is “life boat ethics”. (Remember, that part of the reason you don’t steal from the grocery store is you have to hide it, and the more times you do it, the more likely you are to get caught one of those times.)

By thinking of enough concrete scenarios like the grocery store theft example, I eventually decided that stealing just isn’t worth it. It’s better to adopt a general standard of action in my mind: “Don’t take the property of others without their consent.” I leave it to the reader to think through other examples of general standards of action such as “Don’t kill those who haven’t initiated physical force against you,” (i.e., don’t murder), “Don’t misrepresent facts to gain things from others,” (i.e., be honest), “Judge others according to a rational standard, and treat them accordingly,” (i.e., be just), etc.

How does my definition of “principle” compare to the “socially-accepted definition”? If you perform a “define: principle” search on, you get some of the following definitions (as of 11-10-2016):

“…fundamental truth or proposition that serves as the foundation for a system of belief or behavior or for a chain of reasoning.”

“…a rule or belief governing one’s personal behavior…”

“…morally correct behavior and attitudes…”

“…a general scientific theorem or law that has numerous special applications across a wide field…”

“…a natural law forming the basis for the construction or working of a machine…”

These definitions are all essentially, compatible with mine, I believe. For instance, regarding the principle “Don’t take the property of others without their consent,” it is a “fundamental truth” that human beings must produce the material values necessary for their survival, because most of what we need to survive or flourish does not exist in nature. It is also a “fundamental truth” that human beings must use their reasoning minds to produce those material values, and that if you want to live with others they must respect your desire to live and you must respect theirs. (It’s also a “fundamental truth” that human beings are not omniscient, so they need an impartial system of laws and an institution with the socially-recognized exclusive right to the retaliatory use of physical force to protect rights.)

“Don’t take the property of others without their consent,” is also “…morally correct behavior…” If one wants to live, and if one’s life is the standard of the good, then, in order to live peacefully with others, you must recognize the property rights of others.

“Don’t take the property of others without their consent,” is also a “natural law” in the sense that it recognizes that the human mind functions by persuasion, not coercion. It is a “natural law” in the same sense that the law of universal gravitation is a “natural law”. If you want to build a rocket, you must take the law of inertia into account, because “nature to be commanded must be obeyed”. Similarly, if you want to have a functioning society, it must respect property rights.

Tying all of this back in, why would any form of “gun control” be an abrogation of the principle of individual rights? What is meant by “gun control”? Does it merely mean: “Prohibiting the possession of a weapon with an intent to commit a crime”?  The intent to use a weapon to violate others rights is the start of an initiation of physical force, and, if it can be proved beyond a reasonable doubt, it can and should be prosecuted by the government. Taking any physical steps towards the eventual goal of force being used to destroy the values of others is an initiation of physical force, and therefore a violation of the principle of individual rights. Anyone who has ever seen a John Wayne movie recognizes that you don’t have to wait for someone to actually shoot you in the gut before you can defend yourself. When the bad guy “goes for his gun”, John Wayne shoots him, and that is self-defense, not an initiation of physical force.

An example of an rights-respecting gun law is something like the statute found in the state of Vermont:

“A person who carries a dangerous or deadly weapon, openly or concealed, with the intent or avowed purpose of injuring a fellow man,…shall be imprisoned….” (See, emphasis added, last accessed on 11-12-2016.)

This is a perfectly acceptable and appropriate law regarding the possession of a firearm. It only prohibits carrying a weapon if the person can be shown, beyond a reasonable doubt, to have the “intent” or “avowed purpose” of injuring a fellow man. (Presumably, “injuring a fellow man” here means injuries of one’s fellow men other than for purpose of self-defense.)

This, by the way, is why the government could investigate someone who built a weapon of mass destruction in their backyard. Such a device would not be necessary for self-defense. If you walked around with a nuclear bomb strapped to your back for self-defense, even a “low-yield” device, you’d blow yourself up as well as the mugger -and half the city. Your possession of such a device would create the suspicion that you planned to use it for violating the rights of others. There is no likely or probable need for such a device if you are an individual. Now, you might ultimately be able to show that you had an innocent reason for possessing a WMD, but you’d have to go before a court, and the government’s “prima facie case” of an illegal intent is probably satisfied just by showing that you have no business interest in building such a device. For instance, you aren’t engaged in the business of building nuclear bombs for the US military or some sort of mining or industrial concern. After the government makes its “prima facie showing”, the burden can rightly be shifted to you at court to show some reason that doesn’t involve violating the rights of others. (Additionally, you could face civil liability if you create a “nuisance” that invades or imminently threatens the property of others, which a nuclear bomb probably qualifies as.)

But this isn’t what the left means when they speak of “gun control”. What is generally meant by “gun control”, as that expression is used by most members of the Democratic party and the political left, is the following: The government will initiate, or start, the use of physical force against someone for mere possession of a device, in this case, a devise that uses a controlled explosion to release a metal projectile through a tube by means of an explosive material, such as cordite. The government will initiate physical force against such persons even though they have no intent to use the device to violate individual rights. The initiation of physical force by government takes the form of actual or threatened use of force, and, it will continue to escalate the use of physical force until you comply with its commands, or die -whichever comes first.

Here is how government works: If you break a law, you’ll be arrested (force). If you resist arrest, more cops will come to restrain you (more force). If you use a weapon to resist, the cops will use weapons to stop you (deadly force). Ultimately, all laws follow this pattern: “Do not do X, or you will ultimately be killed.” If the government says: “Do not murder, or you will be killed,” then this is fine because murder violates the rights of others. If the government prohibits things like guns and marijuana, then it says: “Do not own a gun or you will be killed,” or “Do not smoke a joint or you will be killed.” At that point you are being threatened with a violent death despite the fact that you are not violating the rights of others. (Like I said, possessing a gun with intent to commit a crime is different, just as smoking a joint and deliberately blowing the smoke in someone’s face is different.)

So what’s wrong with a little governmental initiation of physical force? You face the same sorts of problems that you face with the example of stealing from the grocery store, but this time it’s on a society-wide level. For instance, if the government says you cannot own a gun to defend yourself from a criminal, when there is no time to call the police to protect you, then the government is implicitly saying: “We’re willing to risk your life in order to satisfy a bunch of soccer moms who have an irrational aversion to guns.” How will this be distinguished from other people’s irrational desires that would involve violating your right to life?

Since no one wants to say: “Government officials can arbitrarily murder some people whenever they feel like it,” the legislature and courts will need to come up with some sort of principled distinction between the prohibition on the ownership of a gun for emergency self-defense and any other number of actions you might take to maintain your life. This is why our legal code has become so “Byzantine” with all sorts of “loopholes”, exceptions, and exceptions to the exceptions. Our legal code is mostly unhinged from any principles distinguishing what should be prohibited and what shouldn’t be because we no longer follow the principle of individual rights.

Additionally, once the principle of individual rights is discarded, the legislature will be constantly bombarded by individuals, and groups of individuals, all trying to appropriate the property of others. It becomes a system of constant “pressure group warfare”, a “cold civil war”, if you will, with a particular political faction gaining power and stealing from some to give to others. They will hold onto power, handing out political favors to their cronies, until some other faction takes over the levers of government and imposes their will on others for a bit.

As I said, a “principle” is a sort of concept, which is a mental summation of relevant observed facts into a generalized “mental tag” -a word and/or a definition. It allows your limited mind to deal with many aspects of reality simultaneously, which would otherwise overwhelm it. You can deal with three or four concrete items as individuals in your mind at one time, but any more than that, and you cannot hold it all successfully. Your mind disintegrates into a mental chaos without concepts, and when it comes to concepts of action, which is all I think a “principle” is, your behavior will become equally chaotic. When society-wide principles like individual rights to life, liberty, and property are disregarded, that society will become chaotic. Eventually the “cold civil war”, of political factions fighting in the legislature, will disintegrate into an actual, shooting, civil war, and people will form gangs fighting one another for the scraps of what is left of civilization, or a “strong man” will take over and the country becomes a dictatorship, with his gang appropriating the property of all. Either way, life will become nasty, brutish, and short without the principle of individual rights to guide us.

All Black Lives Matter, But Some Matter More Than Others

There is an aphorism that I find helpful when deciding what to focus my time and energy on. It’s the expression: “Pick your battles.” In my mind, it basically means you shouldn’t get caught up in minor conflicts and should focus on the “big picture” objective you are trying to achieve. You want to focus your time and energy on things that will most effectively achieve your overall goal.

I see something similar happening with white “liberals” and black “civil rights” groups that express concern over the “problem” of unjustified killings of black men by police. Are there bad cops out there? Sure. But, I suspect that the vast majority of cops are hard-working professionals. Are black men sometimes shot by police without legal justification? I’m sure that also happens. Everyone agrees that the unjustified killing of people in America, and the world, should be reduced to zero. But, what is the most effective method of achieving that goal? And, what does it reveal about a political movement when they seem unable or unwilling to recognize the most effective means of achieving the goal of reducing the number of unjustified killings of black people?

The “Black Lives Matter” web site is fairly short on specifics, in terms of what their goals are. They make a lot of claims but they back few of those claims up. For instance at “” we are told:

“How Black poverty and genocide is state violence.

How 2.8 million Black people are locked in cages in this country is state violence.

How Black women bearing the burden of a relentless assault on our children and our families is state violence.

How Black queer and trans folks bear a unique burden from a hetero-patriarchal society that disposes of us like garbage and simultaneously fetishizes us and profits off of us, and that is state violence.

How 500,000 Black people in the US are undocumented immigrants and relegated to the shadows.

How Black girls are used as negotiating chips during times of conflict and war.

How Black folks living with disabilities and different abilities bear the burden of state sponsored Darwinian experiments that attempt to squeeze us into boxes of normality defined by white supremacy, and that is state violence.” (see, last accessed 9-5-2016)

I couldn’t find any actual proof on the web site to back up any of these assertions. The biggest “head-scratcher” for me was: “How Black girls are used as negotiating chips during times of conflict and war.” Exactly what wars and conflicts are they talking about? What do they mean black girls are used as “negotiating chips”?

The Black Lives Matter web site does discuss why they were formed:

“#BlackLivesMatter was created in 2012 after Trayvon Martin’s murderer, George Zimmerman, was acquitted for his crime, and dead 17-year old Trayvon was posthumously placed on trial for his own murder. Rooted in the experiences of Black people in this country who actively resist our dehumanization, #BlackLivesMatter is a call to action and a response to the virulent anti-Black racism that permeates our society. Black Lives Matter is a unique contribution that goes beyond extrajudicial killings of Black people by police and vigilantes…When we say Black Lives Matter, we are broadening the conversation around state violence to include all of the ways in which Black people are intentionally left powerless at the hands of the state.…#BlackLivesMatter is working for a world where Black lives are no longer systematically and intentionally targeted for demise. ” (See, last accessed 9-5-2016.)

There are numerous dubious assertions made here, but I’ll focus on the last one. The assertion that black people are “…systematically and intentionally targeted for demise.” The assertion here isn’t just that black people are accidentally or unintentionally being killed due to certain bad government policies. An example of an unintentional death due to bad government policy would be something like this: The state highway commission passes a regulation requiring roads to be made out of a certain type of asphalt, and it turns out that asphalt is more likely to cause cars to skid off the road and wreck.

“Black Lives Matters” is asserting that black people are being “…systematically and intentionally…” murdered -intentionally killed without justification. Since “Black Lives Matters” tends to focus on black people who die while interacting with the police, which is why they tend to use terms like “state violence” and “extrajudicial killings of Black people by police”, it is the assertion that black people are intentionally targeted by police for murder.

To be clear, intentional murder by the state has happened before. It happened during the “rein of terror” in post-revolutionary France in the late 1700’s. It happened during the Soviet famine of 1932–33 when forced collectivization of farms by Stalin killed millions. It happened in Rwanda when the Hutu-controlled government ordered the slaughter of ethnic Tutsis in 1994. But are black people being “…systematically and intentionally targeted for demise…” by one of the fifty states or by the Federal government? It seems highly unlikely, and I think the burden of proof lies with “Black Lives Matter” on that assertion, and they haven’t met their burden of proof. It sounds more like a “conspiracy theory” than reality.

The belief that the major problem facing black people in America is the death of black men during law-enforcement encounters has led to the rise of an associated “Black Lives Matter” group, “Campaign Zero”. (See, last accessed 9-5-2016; see also,, last accessed 9-5-2016.)

This group says:

“More than one thousand people are killed by police every year in America. Nearly sixty percent of victims did not have a gun or were involved in activities that should not require police intervention such as harmless “quality of life” behaviors or mental health crises. This year is no different. There have only been fifteen days this year when the police have not killed somebody. Last month alone, the police killed 100 people. This must stop. We must end police violence so we can live and feel safe in this country.” (See, last accessed 9-5-2016.)

This group offers the following policy solutions:

(1) End Policing of Minor “Broken Windows” Offenses

(2) Community Oversight

(3) Limit Use of Force

(4) Indepenently Investigate and Prosecute

(5) Community Representation

(6) Body Cams/Film the Police

(7) Training

(8) End for-profit Policing

(9) Demilitarization

(10) Fair Police Union Contracts (See, last accessed 9-5-2016.)

Without going over all of these policy solutions in detail, I will note that some of them are worthy of consideration. For instance, requiring police officers to wear body cameras could be useful for both the officer and the civilians the officer encounters. However, there is clearly an issue of cost involved. Body cameras cost money, and the government’s funds are limited. So, the question is this: Is it worth the cost? Are we as taxpayers prepared to pay for body cameras for all police officers? Is this the best use of that money? I do not know the answer to this question, and this is why we have legislatures to help make a determination as to how to spend limited taxpayer money in a way that most effectively achieves the goals of government.

Is the major problem facing black people today the fact that some black males are killed by police? Even assuming for the sake of argument that some police officers are committing murder and intentionally killing black men for no legally justifiable reason, is this the major problem facing black people today?

This question is important to ask because, as I’ve alluded to already, resources are limited. Given the goal of reducing the number of unjustified killings of black people, is the best use of time, money, and energy, on things like additional training of police officers in use of force and not to engage in racial profiling when they pull black people over on the road? If we spend money on things like body cameras for cops will that most effectively reduce the number of unjustified black killings in America, given our government’s limited funds? How are most black people who are illegally killed in America killed? Is it at the hands of cops or someone else?

First, we should ask the following question: How many people are killed during a law enforcement encounter? The government tries to collect these statistics:

“After the passage of the Death in Custody Reporting Act (DICRA) of 2000 (P.L. 106-297), the Bureau of Justice Statistics (BJS) began collecting data on deaths that occurred in the process of arrest.” (See, last accessed 9-5-2016.)

“From 2003 through 2009, BJS obtained reports on 4,813 such deaths through its Arrest-Related Deaths (ARD) program. About 3 in 5 of these deaths (2,931) were classified as homicides by law enforcement personnel. The remaining 2 in 5 deaths were attributed to other manners, including suicide (11%), intoxication deaths (11%), accidental injury (6%), and natural causes (5%). In three-quarters (75%) of homicides by law enforcement personnel, the underlying offense of arrest was a violent offense.” (See, last accessed 9-5-2016.)

Since 2,931 deaths from 2003 to 2009 during an “arrest” were homicides by law enforcement, this means that approximately 489 people per year were killed by police over 6 years, where the killing was a “homicide”. A “homicide” is not necessarily an unlawful killing. Killing someone in self-defense is classified as a “homicide”, and it appears that these statistics include both legally justified and unjustified killings by police. (The “…three-quarters…of homicides…underlying offense of arrest was a violent offense…” language suggest this.) But, even assuming that all of these homicides were unjustified police killings, that is 489 killings of people (of all races) per year by cops.

Lets compare these 489 killings per year, of people of all races, by cops to the murder statistics.

In 2013, 2,491 people in the US classified as “black” were murdered, according to the FBI. (See,last accessed 9-5-2016.)

Of those 2,491 black persons murdered in 2013, the race of the offender was classified as “black” in 2,245 of instances. In other words, out of 2,491 black people murdered, 90% of the perpetrators of the crime were also black. How does this compare to the white murder victim rate? The same FBI statistics say that in 2013, there were 3,005 white murder victims, and that the race of the offender was white in 2,509 of those murders. This means that out of 3,005 white people murdered, 84% of the perpetrators of the crime were also white.

Let’s assume for the sake of argument that all of the 489 persons per year killed by cops from 2003 through 2009 were black, and also assume that all of those 489 persons per year were illegally killed by a cop, as opposed to a police shooting in self-defense or pursuant to the cop’s legal right to enforce the law. How does that compare to the fact that in 2013, 2,245 black people were murdered by another black person? 2,245 divided by 489 equals 4.59. A black person is at least 4.59 times more likely to be murdered by another black person than he is to be unjustifiably killed by a cop. (Keep in mind, it’s actually much higher, since I made the “generous” assumption that all of those 489 people per year killed by cops between 2003 and 2009 are black and that all of those killings were unjustified.)

If you were betting on a team that was almost 5 times more likely to win than another team, you’d want to put your money on that team. It would be foolish to spend a lot of money betting on the team that is 5 times more likely to loose, and if you did so, people would question your motives and rationality.

So, why do “Black Lives Matters”, and white “liberals”, focus so much time and energy on the much less likely incidence of unjustified killings by cops rather than the much more likely incidence of unjustified killings of black people by other black people? I have a few possible theories:

(1) They are unintelligent. They simply cannot see the truth because they aren’t very good at making logical connections. There is no shame in this. Some people are just smarter than others.

(2) They are ignorant of the facts. They simply haven’t studied the issue in sufficient detail or have never been presented with the evidence. There is no shame in this, as long as one is willing to continue learning. Nobody is omniscient, and it’s impossible to know everything.

(3) They are irrational. They are deliberately, mentally, evading facts and refusing to make logical connections because it satisfies their unexamined and unquestioned emotional whims. There is great shame in this. Irrationality is a major vice. (It’s actually the major vice, but that is for another time.)

(4) Their actual goal isn’t reducing the number of black people unjustifiably killed. (This is actually just another version of theory #3.) Their goal is to find a scapegoat for the fact that there is a disproportionate amount of crime being committed by black people, and that most of that crime is aimed at other, peaceful, law-abiding, and respectable, black people. It’s a way for the “civil rights” movement to divert the attention of law-abiding and good black people onto something other than the fact that they are the victims of crime primarily at the hands of members of their own race. It’s also a way for white “liberals” to focus their attention and outrage on something that is more “politically correct” than the fact that black people commit a disproportionate amount of the crime in America, and that most of that crime is aimed at other black people.

I hasten to add, that with any group or movement, especially one with ill-defined goals and methodology like “Black Lives Matter”, different people within that movement can have different reasons for being involved. That means these theories aren’t necessarily mutually exclusive. The movement can be made up of some mixture of people with mental states and goals that match all four of my theories above. It’s also possible there are other reasons, that better explain the facts, and I just haven’t thought of them. (I am certainly open to suggestions.)

A person’s time, money, and energy is limited. He or she should pick a cause that maximizes his or her goal. If your goal is truly to reduce the number of black people being unjustifiably killed, then you should focus most of your time, money, and energy on reducing black on black crime like murder.

How do we best reduce the number of black people being murdered by other members of their own race? I don’t have all of the answers, but I suspect many of them are not political solutions, which is probably why politicians don’t like to spend too much time on the subject –they cannot even appear to be doing anything to solve it if the problem must come from within the “hearts and minds” of individuals in society.

Some possible solutions that I see are:

(1) Ending the cycle of dependence and single-motherhood caused by the welfare state. That means ending welfare and requiring people to live with the consequences of their own choices, or to seek private charity if they truly are impoverished through not fault of their own.

(2) Changing attitudes about sex and birth control. Both the “left” and the “right” have some solutions that make sense on this front. (I also think both political groups share blame when it comes to educating young people about sex and when to have it, but that is for another time.) Young women should be encouraged to use birth control if they are going to have sex. (The “liberal solution”.) However, young women should also be encouraged to be more selective regarding the men that they sleep with, and to only have children with men they are married to. (The “conservative solution.”) If young unmarried women do have accidental pregnancies they should be encouraged to either (a) have an abortion, or (b) give the baby up for adoption. Although it is the subject of debate, it appears that there is a connection between being raised by a young single mother and becoming a criminal later in life. (See ) It would also seem to make sense that a young boy without a reliable father-figure to model himself on is going to be more likely to make bad choices.

(3) Encouraging young men and young women to educate themselves and to instill “bourgeoisie” values of hard work and thrift.

There are others possible solutions I can think of, but that’s not really the focus here. I also tend to think that inner cities need more police patrolling, not less. But, I am uncertain. I suspect, but cannot currently prove, that a large portion of people, both black and white, are murdered by a friend or family member, and I don’t know how much additional police presence in inner cities is going to change that.

It’s not entirely clear in my own mind how to reduce the unjustified killing of black people by other black people, but it is clear to me that focusing on the relatively low occurrence of unjustified police killings of black people in America is an effort to direct attention away from a much bigger problem. The title of the blog entry is a reference to George Orwell’s short novel “Animal Farm”. At the end of it, the pigs who have taken over the farm declare that while “All animals are equal”, as the revolution had initially declared, “…some animals are more equal than others.” “Black Lives Matter” activists apparently believe that the lives of people like Michael Brown matter more more to the “civil rights” movement and white “liberals” than the lives of people like Jamyla Bolden, and there are a lot more of the later than the former.

An Analysis of Murder Rates Broken Down By Race

My purpose here is simply to look at the numbers and see if the murder rate in the US is proportional to what it should be, given the white population versus the black population. I do so without trying to theorize about the reasons why murder rates break down the way they do between the races. In a subsequent blog post, I plan on using this analysis to discuss the so-called “Black Lives Matters” movement and to attempt to determine if they are focusing time, energy, and taxpayer money into areas that will most effectively reduce the unjustified homicide rate of black people in America.

In 2013, 2,491 people in the US classified as “black” were murdered, according to the FBI. (See, last accessed 9-5-2016.)

Of those 2,491 black persons murdered in 2013, the race of the offender was classified as “black” in 2,245 of instances. In other words, out of 2,491 black people murdered, 90% of the perpetrators of the crime were also black. How does this compare to the white murder victim rate? The same FBI statistics say that in 2013, there were 3,005 white murder victims, and that the race of the offender was white in 2,509 of those murders. This means that out of 3,005 white people murdered, 84% of the perpetrators of the crime were also white.

How does this compare to the proportions of population? Blacks make up roughly 13% of the US population. (See, last accessed 9-5-2016.) Whites make up about 73% of the US population. 5,496 people who were either black or white were murdered in 2013. (This is adding together the number of black people and white people murdered according to the FBI, see, last accessed 9-5-2016.)

The total US population in 2013 was about 317 million people. Therefore, the chance that a given person chosen at random from the US population in 2013 was both “black” and “a victim of murder” is 2,491 divided by 317 million times 100 which is 0.00079% . The chance that a given person chosen at random from the US population in 2013 was both “white” and “a victim of murder” is 3,005 divided by 317 million times 100, which is 0.00095%. In other words, the chance that one was both “white” and “a murder victim” was about 1.19 times greater than the chance that one was both “black” and “a murder victim”. (because 1.19 times 0.00079 = [roughly] 0.0009401)

This 1.19 times number doesn’t show the whole picture, however, Thirteen percent of the total US population is black, which means there are about 41 million black people in the US. There are 232 million white people in the US in 2013. As already discussed, 90% of all black people murdered are murdered by other black people and 84% of all white people murdered are murdered by other white people. So, 2,245 black people murdered by other black people means that a black person’s chances of being murdered by another black person are 2,245 divided by 41 million times 100 percent is 0.0055%. 2,509 white people murdered by other white people means that a white person’s chances of being murdered by another white person are 2,509 divided by 232 million times 100 percent: 0.0011%. A black person is five times more likely to be murdered by another black person than a white person is to be murdered by another white person (0.0011% * 5 = 0.0055%)

Since 2,245 intra-racial murders were committed by blacks and 2,509 intra-racial murders were committed by whites, the total number of intra-racial murders committed by blacks and whites combined was 2,245 + 2,509 = 4,754. So, out of the total number of intra-racial murders committed by blacks and whites combined, the percentage committed by blacks was: 2,245 divided by 4,754 times 100 = 47%. Out of the total intra-racial murders committed by blacks and whites, the percentage committed by whites was 52%.

Since blacks make up only 15% of the population compared to whites (who make up 73%), this means that if the total number of intra-racial murders committed by blacks were proportional to the population, it would be 15% of 4,754 intra-racial murders committed by blacks and whites, or 713.6 intra-racial murders committed by blacks in 2013. Since it was actually 2,245 intra-racial murders committed by blacks in 2013, then the number of intra-racial murders committed by blacks was 3.15 times higher than it should have been given the proportion of the black population to the white population.(See, last accessed 9-5-2016.)

The Bureau of Justice Statistics sets forth the percentage of homicides committed by blacks and the percentage of homicides committed by whites between 1980 and 2009. These figures can be found at page 12, Table 7 of “Homicide Trends in the United States, 1980-2008”, where it said that of all homicides committed in the US, 45.3% of offenders were white and 52.5% were black. (See, last accessed 9-5-2016.)

Once again, since blacks make up only 15% of the population compared to whites, who make up 73%, this means that of all murders committed in the US, which was 5,723 in 2013, then if the homicide rate were proportional to the different racial populations, the number of murders committed by black people should have been 858.45 (0.15 * 5,723). But, the number of murders actually committed by blacks in the US in 2013 was 2,698.This means that in 2013, the proportion of murders committed by black people was 2,698 divided by 5,723 * 100 = 47%. Forty-seven percent of all murders in 2013 were committed by black people, despite the fact that they are only 15% of the population. The number of blacks committing murder in 2013 was about 3.13 times (2,698 divided by 858) higher than it should have been if the murder rate were strictly proportional by racial groups. (See, last accessed 9-5-2016. The 5,723 number of murder victims in 2013 was obtained by adding together “race of victim” numbers found in the far-left “total” column: 3,005+2,491+159+68=5,723. The 2,698 number of blacks that committed murder number was obtained by adding together the “Black or African American” numbers in the “race of offender” grouping: 409+2,245+27+17=2,698.)

As I said when I started, I am not looking to analyze the causes of this or suggest what this should mean in terms of government policy. I am simply crunching the numbers in order to see what they are. I will save my analysis for another blog posting.

What Is Wrong With Prohibiting Persons on the “No Fly” List From Purchasing Guns

The Senate rightly voted down an attempt to allow the Attorney General to prohibit people on the so-called “no fly list” from purchasing a firearm. Let’s leave aside for the moment the fact that I don’t think this would stop any would-be terrorist from getting a gun (see Paris, France). Let’s also leave aside the fact that the two jihadists in San Bernardino California were not on the “no fly list”, so this law would have made no difference. Regardless of that, this is a terrible violation of Constitutional rights. The Second Amendment guarantees an individual right to own a gun. This important liberty cannot be taken away by the government without due process of law, and that due process must be adequate.

An examination of the proposed statute, contained in an Amendment to an unrelated bill, shows that the “due process” included was very weak. This provision starts near the bottom of page Page S8401 of the proposed Amendment:

“(b) In any case in which the Attorney General has denied the transfer of a firearm to a prospective transferee pursuant to section 922A of this title or has made a determination regarding a firearm permit applicant pursuant to section 922B of this title, an action challenging the determination may be brought against the United States. The petition shall be filed not later than 60 days after the petitioner has received actual notice of the Attorney General’s determination under section 922A or 922B of this title. The court shall sustain the Attorney General’s determination upon a showing by the United States by a preponderance of evidence that the Attorney General’s determination satisfied the requirements of section 922A or 922B, as the case may be. To make this showing, the United States may submit, and the court may rely upon, summaries or redacted versions of documents containing information the disclosure of which the Attorney General has determined would likely compromise national security. Upon request of the petitioner or the court’s own motion, the court may review the full, undisclosed documents ex parte and in camera. The court shall determine whether the summaries or redacted versions, as the case may be, are fair and accurate representations of the underlying documents. The court shall not consider the full, undisclosed documents in deciding whether the Attorney General’s determination satisfies the requirements of section 922A or 922B.”.

This proposed “due process” has no automatic hearing, just the right to file a petition. A person’s right to a hearing is waived after 60 days of “actual notice” -presumably forever. It contains no right to even examine the documents being used against petitioner. Documents are examined by a judge “ex parte” -which means without the defendant/petitioner present. It uses a “preponderance of the evidence” standard instead of “beyond a reasonable doubt”, like in a criminal case. I am not even sure it allows for one to call witnesses in one’s favor or to confront one’s accuser in court, as required under the 6th Amendment. It’s about like the standard the Department of Motor Vehicles would uses to deprive someone of their driver’s license, which is not a Constitutionally protected right.

The “no fly list”, even as applied to its original intended purpose -flying on an airplane- is fraught with problems and possible Constitutional violations. (See  The ACLU has argued that even its original intended purpose is unconstitutional. Furthermore, when it is applied to something like owning a gun, which is a specifically enumerated right under the Bill of Rights, then it is just doubling down on what was already probably a bad law to begin with.

If this law had passed, what would have been next? Imagine the following hypothetical scenario: What if the government decided to deny anyone on the no-fly list a computer because terrorists use computers to meet each other and conspire to commit their crimes? This would clearly have First Amendment freedom of speech and freedom of association implications, and the level of due process required to restrict that freedom are on a par with what would be required before you can send someone to prison. Similarly, the due process required prior to restrict someone’s Second Amendment rights, must be on an equal level.

“Structural” versus “Declaratory” Provisions of the Constitution and Originalism

For purposes of this paper, the provisions of the U.S. Constitution can be broken down into two different major categories. The first category of provisions are “structural”. These include such things as Article I, Section 8, which sets forth the powers of Congress, all of Article II, some of Article III, Article V, and Article VI. (This is not an exhaustive list.)

These structural provisions of the US Constitution set forth things like how a bill becomes a law; that the Congress will be divided into a House and a Senate; how congressmen and the President are elected; how long congressmen, Supreme Court Justices, and the President serve; how treaties are ratified, etc. Most of these “structural provisions” could have been arranged differently. For instance, it is conceivable that the Founders could have decided to have a unicameral legislature (one chamber of Congress instead of two), or that they could have made the President’s term of office 6 years instead of 4.

Most of these “structural provisions” were based in political expediency, or in the historical and social circumstances of the states at the time the US Constitution was ratified. For instance, at the Constitutional Convention, there were two competing “plans”. These two plans represented differing interests of low-population states versus high-population states, as well as other interests of the time.

The first plan, put forth by James Madison and Edmund Randolph, became known as “the Virginia Plan”. It called for a much more unified Republic with state sovereignty significantly reduced by allowing the national legislature to veto all state laws.[1] By way of contrast, the Constitution actually adopted just implicitly says that state laws that are contrary to the Constitution are void under the Supremacy Clause of Article Six, Clause 2, but it does not empower Congress with a cart-blanche veto power over any and all state laws.

Large states like Virginia supported this plan because it would give high-population states more power in the national legislature. Low-population states preferred the New Jersey Plan, which would have created a single unicameral national legislature that kept the one-vote-per-state representation found under the Articles of Confederation. With the New Jersey Plan, small states could more easily prevent large states from enacting legislation that would have trampled on their sovereignty as states. The New Jersey Plan was more of a modification of the existing Articles of Confederation, while the Virginia Plan threw out the Articles altogether.

At the end of the day, neither the Virginia Plan nor the New Jersey Plan was enacted. The document eventually adopted regarding legislative power was reflected in the “Connecticut Compromise”. It retained the bicameral legislative features of the Virginia plan. Also like the Virginia plan, in the lower house, there would be proportional representation based on state population. However, the upper house would have two representatives per state, thereby ensuring that low-population states could not be dominated by high-population states in the new Congress.[2]

The other major category of provisions that can be found in the US Constitution are what I call the “declaratory provisions”[3]. These provisions don’t set forth the powers of government or government officials, or how government is to operate. Instead, they state certain fundamental rights that citizens or residents of the United States possess. Most of these “declaratory provisions” are found in the first Ten Amendments to the US Constitution. For instance, Amendment I says:

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

These first ten Amendments reflect the Enlightenment tradition of individual rights[4], and were adopted in order to placate the anti-federalist critics of the Constitution. At the time, some state constitutions included a bill of rights[5], and the English legal tradition, as embodied in the Magna Charta, often had a declaration of rights. During the debates leading up to the ratification of the US Constitution, Madison and Hamilton responded to anti-federalist complaints about the lack of a declaration of rights in the proposed document by saying it was unnecessary, and that such a declaration could actually be dangerous to the rights of individuals.

Hamilton’s opposition to a bill of rights can be found in Federalist Number 84:

The most considerable of these remaining objections [of the Anti-Federalists] is, that the plan of the convention contains no bill of rights….I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. (Emphasis added, Federalist Number 84, )

In essence, Hamilton said that there was no need for a declaration of the right of freedom of the press in the new Constitution because the Constitution did not authorize the Federal government to regulate the press at all. Article I, Section 8 sets forth the scope of Congress’ powers, meaning that unless a power is granted to Congress under this section, then it has no power to act. Since there is no power to regulate the press, Congress does not have the power, and it can make no law regarding press or speech.

Additionally, Hamilton goes on in the above-quoted text to note that a bill of rights provision stating that Congress can make no law regarding the freedom of the press could be construed as meaning that Congress has this power –that it might give a “…plausible pretence for claiming that power…” In other words, a bill of rights for Hamilton and Madison, could actually be dangerous because someone might assume that Congress has the power to regulate speech and press, when, under Article I, Section 8, it has no such power.

At the end of the day, Hamilton, Madison, and other supporters of the new Constitution compromised on the issue of a Bill of Rights. In order to avoid the problem of “constructive powers” being implied to the new Federal government under the Bill of Rights, the Ninth and Tenth Amendments were probably included:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[6],[7]

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

In other words, the 9th and 10th Amendments ensure that the people retain all of their rights, not just the ones set forth in the Constitution, and that the Federal government only has the power to act insofar as it has been delegated powers under the Constitution.

In order to properly understand this distinction between “structural” provisions on the one hand and “declaratory” provisions on the other, it is necessary to move into the realm of political philosophy and philosophy of law. Specifically, it must understood what a constitution is, and what purpose it serves.

Human life is not guaranteed. If one wants to live, then one must take certain actions. Such actions are a necessary condition for living. Man posses a rational faculty that allows him to comprehend laws of nature and to adjust his natural environment, in accordance with those laws, to maximize his chances of survival. For instance, someone recognizes that it is human nature to require protection from the snow, the rain, and the cold. A man’s chances of survival are maximized when he is protected from certain weather conditions. He also notices that certain types of plants and trees, when properly harvested and arranged, can provide a barrier against the weather. So, he gathers naturally occurring elements like trees, rocks, and dirt, and combines them to build a house. Another man recognizes that he needs nourishment, and he learns to build weapons to hunt the lesser animals with, or he makes a plow and plants seeds to grow crops.

Food, shelter, clothing, and other values are necessary for man’s survival, and are typically not found in nature, or are not sufficiently plentiful to sustain man’s life. As his technology and scientific knowledge grows, man’s capacity to improve his life grows. Men have gone, over several millennia, from living in caves to building rockets to the Moon -all thanks to man’s capacity to recognize reality, formulate general principles of cause and effect, and to act accordingly. Man’s mind allows him to recognize cause and effect relationships amongst entities that exist, to recognize his own nature as a living being and a rational animal, and to take action aimed at his survival.

Just as other inanimate entities have a certain nature, so does man. Man is the “rational animal”. He is a living organism of a certain kind and, in principle, he must therefore act in accordance with that nature if he wants to survive. A man cannot live like a plant, by merely sitting and absorbing nutrients from the sun and the soil. A man must engage in a process of thought, and create the wealth necessary for his survival. Men also have the capacity to engage in collaborative endeavors amongst themselves that benefit all participants. Men can trade with other men, which means that individual human beings gain from certain types of associations with each other. If men are going to benefit from each other, they must recognize that each individual living in society acts to provide the things necessary for his survival, if he wants to live. All men must recognize the moral principles defining and sanctioning an individual’s freedom of action in a social context. These moral principles are known as individual rights. Although the list is not exhaustive, fundamental individual rights include the right to live and the right to private property. The right to live is the ultimate individual right, and forms the basis of all rights.

Although most choose to live as traders and producers, some human beings choose not to think and produce their own values. Some will attempt to take what others have produced by means of force. Such people are known as “criminals”. The criminal attempts to gain values from others not by voluntary trade, but by means of force or the threat of force. A criminal substitutes reason and persuasion for force in an effort to gain values from others, or to destroy the values of others. Criminals are force-initiators. They use their fists or a weapon, or they threaten the use of force, to gain what others have produced without their voluntary consent.

If men are to live together in society, then they must create an institution or collaborative agreement to protect those who want to live by means of reason, persuasion, and trade from those who wish to destroy or take the values of others by means of physical force. Although in an emergency, each individual has a right to use force in retaliation and to defend himself from a force-initiator, a formal institution to stop such force-initiators, with objective rules of procedure and fair notice of what is prohibited, is necessary once a society gets beyond a certain point in size and geographic scope. This organization is known as “government”.

There are various reasons why government is necessary if rights are to be protected, and this paper is not meant to be an exhaustive critique of the political philosophy of anarchism, but some of the major reasons why government is essential for the protection of individual rights will be discussed prior to turning to constitutional law.

Without a central governmental authority, it is difficult for others to know whether a person using force in retaliation against a criminal is truly acting in retaliation. Concretely, imagine that a criminal has stolen a person’s property. The victim then goes to the criminal’s house, and holds him at gunpoint while recovering his stolen property. If others see only the victim holding the criminal at gunpoint, how will they know that this is not a robbery? If the criminal’s family or friends see this, and know nothing about the circumstances, then they might mistakenly believe that the victim is the force-initiator, and use force to stop what they perceive as a robbery. This in turn would lead the victim’s family and friends to counter-retaliate, and society could devolve into gang-warfare.

By instituting formal rules of procedure in this situation, misunderstandings can be minimized. The victim of a burglary goes to a socially recognized authority, the police, and files a complaint. The police then investigate, while ensuring that the rights of the accused are respected. Another branch of the government, the courts, then make a determination, in accordance with pre-established rules of evidence and procedure, as to whether the property was in fact stolen, and issue a ruling.

Another important function that only a government can serve is to provide all members of society with prior notice of exactly what actions are violations of individual rights. Citizens elect representatives who then gather periodically and promulgate rules prohibiting certain actions that would violate individual rights. This representative body is generally called a “legislature”, and it sets forth the elements of crimes. For instance, at English Common Law, murder was defined as: (1) unlawful, (2) killing, (3) of a human, (4) by another human, (5) with malice aforethought. The legislature promulgates a statute which sets forth each of these elements, and they must all be proven by a certain standard of proof in a given circumstance before one can be shown to be guilty of the crime of “murder”.

Governments are instituted among men and derive their powers from the governed, who delegate some of their right to retaliatory force to that institution so that individual rights can be protected, and everyone can be assured that their own rights will be protected if they, or their friends or family, are ever accused of a crime. Government isn’t there just to do justice, but to show justice, and only justice, being done. It is there to assure everyone in society that force is only being used to protect individual rights. But, this raises a new problem. How to ensure that those acting on behalf of government –the police, the military, the courts, and the legislature- do not themselves become force-initiators? If the fundamental powers of government are written down in a document, then it is clear what actions government officials can take, and the exact procedures for taking such actions. Any power not granted by this written document is not a power delegated to the government by “the people”. This is the purpose of a written constitution. In other words, a written constitution can be defined as the fundamental charter delegating the peoples right to the retaliatory use of physical force to a central authority. Only the powers granted to government agents in a written constitution are authorized.

The difference between these two types of provisions found in the US Constitution suggests that they have different origins and should be interpreted in accordance with different methodologies. As was already stated, the “structural” provisions of the Constitution represent decisions at the time the particular document was adopted. They represent the political and social circumstances at the time of ratification, and might be significantly different if circumstances had been otherwise. The “declaratory” provisions tend to be more “abstract”, “timeless”, or “universal”. For instance, a right to freedom of speech and the press is seen as essential to all human beings everywhere, and under all circumstances, while the creation of an upper house of the federal legislature whose members are chosen by individual state legislatures (the Senate) is more a matter of social, economic, and political circumstances at the time of adoption. In some other nation, with some other set of historical circumstances, a unicameral legislature might make more sense. The structural provisions represent the compromises that made the union possible. The structural provisions have a role to play in ensuring rights are protected via such things as separation of powers and checks and balances, but they presuppose the rights that they protect.

Given what has been said about the strong role of historical, political, and social context at the time they were ratified, the structural provisions of the US Constitution should be interpreted in accordance with that historical, political, and social context. In other words, the structural provisions of the Constitution should be interpreted in accordance with original meaning, as described by Justice Antonin Scalia and others.[8] The reasoning here is fairly simple: (1) A constitution is the fundamental charter delegating the people’s right to the retaliatory use of physical force to a central authority, and only the powers granted to government agents in the written constitution are authorized; (2) “the people” currently living may not have ratified the constitution, but they are free via its amendment process to alter it at any time; (3) since the currently living have chosen not to amend the enacted constitution, they must still prefer its original terms. When judges interpret these structural provisions of the Constitution, they should therefore look to original meaning on the assumption that it is what the current generation of the body politic prefers. Since most of these provisions have to do with the powers and structure of government, it would undermine the idea of “the consent of the governed” for judges to reinterpret, for instance, how a bill becomes a law. It would abrogate the consent of the governed if the courts suddenly decided that “times had changed”, and only a majority of Senators had to vote for a bill that was signed into “law” by the President, and by-passed the requirement that a majority of the House of Representatives also vote in favor.

Using “original meaning” makes no sense with regard to the “declaratory” provisions of a constitution because these provisions describe universal individual rights, and the protection of rights is the very purpose of government, and a constitution, in the first place. Individual rights are conceptually and logically more fundamental than any written constitution, and form the underlying moral foundation for a written constitution. The source of rights is not divine law, and it is not Congressional law. As discussed, rights are moral principles defining and sanctioning an individual’s freedom of action in a social context. They ensure that the individual is free to live in society. People have freewill so, they can choose not to respect individual rights. However, when the majority of a society fails to respect rights, it will disintegrate. Only a society that respects rights to life, liberty, and property can remain functional long-term, because it is the only society that leaves people free to think and act on their own best judgment in the maintenance of their individual lives.

[1] See The Creation of the American Republic, 1776-1787, Gordon S. Wood, Chapter XII, “The Worthy Against the Licentious”, Section 1, “The Federalist Revolution”: “Not only should the national government have a ‘positive and complete authority in all cases where uniform measures are necessary,’ as in finance, commerce, and foreign policy, but it should have ‘a negative, in all cases whatsoever, in the Legislative acts of the States, as the King of Great Britain heretofore had.’”

[2] See The Creation of the American Republic, 1776-1787, Gordon S. Wood, Chapter XIII, “The Federalist Persuasion”, Section 7, “The Redefinition of Bicameralism”: ”With the ‘Connecticut compromise,’ which provided for two senators from each state, the Federalists found a justification for the upper house that they had not anticipated. ‘The people will be represented in one house, the state legislatures in the other,’…The Senate now became a means of restraining ‘the large states from having improper advantages over the small ones.’”

[3] Hamilton also appears to make this “structural” versus “declaratory” distinction in the Federalist Papers: “Independent of those, which relate to the structure of the government, we find the following: Article I. section 3. clause 7. “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” Section 9.”

[4] The Meaning of the American Revolution, Dan Lacy, Chapter 1, “The Eighteenth-Century World”: “The general body of thought we call Newtonian was most effectively applied to social issues by another Englishman, John Locke (1632-1704)…they dominated political thought for a century to come and provided the philosophical basis for the American Revolution.”

[5] See The Creation of the American Republic, 1776-1787, Gordon S. Wood, Chapter VII, “Law and Contracts”, Section 2, “The Contract of Rulers and Ruled”.

[6] James Madison, The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 5. 6/26/2015. “The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”

[7] James Madison, The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 5. 6/26/2015. “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may [385] be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution. [See above footnote for this clause.]”

[8] Section 70, “The false notion that the Living Constitution is an exception to the rule that legal texts must be given the meaning they bore when adopted”. In: Scalia, A. and Garner, B. (2010) Reading Law: The Interpretation of Legal Texts, “Preface”. St. Paul: Thompson/West Publishing.

I Just Realized There is No Authority Under The Constitution for the Feds to Impose a 21-day Quarantine on Persons From Africa

In a previous blog post, I wrote that the President and the Federal government should impose a 21-day quarantine on persons entering the country from areas of Africa stricken with ebola. I now no longer think the Federal government has the power to do this under the Constitution. In fact, there is no Constitutional authority for the Federal government to restrict entry into the United States at all.

The Constitution is a charter of enumerated powers for the Federal Government. It lists what powers are expressly carved out of state sovereignty( ) If it does not list a power as belonging to the Federal government, then such power is reserved for the states. (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Article I, Section 8 lays out Congress’ powers, and it says nothing about quarantine. In fact, it appears to give the Federal government no power to regulate entry into the country at all, except for the purposes of imposing duties (Art. I, Sec. 8-1) It also says Congress can make uniform laws of naturalization (Art. I, Sec. 8-4), but that is just how people become citizens -not whether they can enter the country. That means the Federal government must be relying on the “catch-all” of Art. I, Sec. 8-3, (“To regulate Commerce with foreign Nations…”), but I fail to see how people entering the country is “commerce” under original meaning. It now appears to me that Congress has no power to restrict entry by people into the country at all -assuming we are going to actually take the Constitution seriously, which I do. 

I did some further research online, and discovered this article: It basically seems to say that the courts have found an “inherent power” in the Constitution that allows the Federal government to restrict entry into the country. From the stand-point of original meaning, this seems as problematic as the “penumbras and emanations” that supposedly give rise to a right to privacy in the Constitution ( I don’t see how Scalia, Thomas, Bork, or other originalist scholars could look at themselves in the mirror in the morning and claim some sort of unenumerated “inherent power” of the Federal government to restrict entry into the country.

Does this mean that quarantine cannot be imposed? I think it must occur at the state level. Each state government must establish its own quarantine laws, consistent with the Fourteenth Amendment’s due process clause.( As long as some sort of hearing with objective rules of evidence and sufficient proof of a threat to others occurs, then this is probably sufficient. The additional implication of my new understanding of the Constitution, which I won’t get into too much here, is that each state would appear to have the power to set its own rules for entry into that state by immigrants from other countries. This might not be the result that originalists like Scalia would like, but it is what the Constitution seems to require under original meaning.

President Refuses to Impose 21-Day Quarantine on Persons Entering the Country From Africa Because He Wants to Sacrifice The Welfare of Americans

Today, I got confirmation from an article that the reason the President and other federal officials are not imposing a 21-day quarantine on people entering the country from ebola-stricken portions of Africa is due to a morality of self-sacrifice that I reject:

“‘It’s typical of what America does best,’ Obama said of the response team. “When others are in trouble, when disease or disaster strikes, Americans help.'”

The President and other federal officials believe it is my job to sacrifice my life for strangers.

I pursue my own rational self-interest, and I am only interested in the welfare of others to the extent that it promotes my own life. For instance, if I had a wife or children, I would be very interested in their welfare because it enhances my own life to have them around. I would take large risks in order to ensure their safety. The same goes for my friends. But, I am not going to willingly sit by and endanger my life, and the life of my friends and family for total strangers.

I recognize that the risk of a major ebola-outbreak in an advanced semi-capitalist economy is small given our superior medical care, but I don’t engage in self-sacrifice, even when the risk is small.