[Editor’s Note: The following anonymous piece was received via email on April 7, 2009. It was distributed to our voluntaryist email group, since I am in accord with its sentiments. Its opening claim of a “right to exist” ought more properly be framed as a statement: We exist; we exist at our own expense; and expect no one to support us; and we will defend our existence if it is coercively threatened. I would have liked to have seen it mention that 1) taxes are theft, and that taxes are collected under threat of force; and 2) that although certain goods and services are necessary for our survival, it is not necessary that they be provided by coercive, political governments. Please see that this Declaration gets as wide a distribution as possible.]

To The Governments & People of Earth:

We claim the right to exist, and we will defend it. We do not seek to overthrow anything. We do not seek to control anything. We merely wish to be left alone. All we ever wanted was to live in peace with our friends and neighbors. For a long, long time we bore insults to our liberty; we took blows, we did what we could to avoid injury and we worked through the system to get the offenses to stop. That has now changed. We no longer see any benefit in working through the world’s systems. At some point, working within a system becomes cowardly and immoral; for us, that point has arrived. Regardless of the parties in power, their governments have continued to restrict, restrain and punish us. We hereby reject them all. We hereby withdraw from them all. We hold the ruling states of this world and all that appertains to them to be self-serving and opposed to humanity. We now withdraw our obedience and reclaim the right to strike back when struck. We will not initiate force, but we do reserve the right to answer it. We did not choose this – it was forced upon us.

To The Governments of Earth:

You are building cages for all that is human. In the name of protection, you have intruded into all areas of human life, far exceeding the reach of any Caesar. You claim ultimate control of our property and our decisions, of our travels and even our identities. You claim ownership of humanity far beyond the dreams of any Emperor of any previous era. Understand clearly: We reject your authority and we reject your legitimacy. We do not believe that you have any right to do the things you do. You have massive power, but no right to impose it upon us and no legitimacy. We have forsaken you. We are no longer your citizens or your subjects. Your systems are inherently anti-human, even if all their operators are not. We are not merely angry young people. We are fathers and mothers; aunts, uncles and grandparents; we are business owners and trusted employees; we are mechanics and engineers and farmers. We are nurses and accountants and students and executives. We are on every continent. This is not a burst of outrage; this is a sober declaration that we no longer accept unearned suffering as our role in life. For long decades we sat quietly, hoping that things would turn around. We took no actions; we suffered along with everyone else. But after having our limits pushed back again and again, we have given up on your systems. If our fellow inhabitants of this planet wish to accept your rule, they are free to do so. We will not try to stop them. We, however, will no longer accept your constraints upon us. – From now on, when you hurt us, we will bite back. If you leave us alone we will leave you alone and you can continue to rule your subjects. We are happy to live quietly. But if you come after us, there will be consequences. You caused this because of your fetish for control and power. The chief men and women among you are pathologically driven to control everyone and everything that moves upon this planet. You have made yourselves the judge of every human activity. No god-king of the ancient world ever had the power that your systems do. You have created a world where only the neutered are safe and where only outlaws are free.

To The People of Earth:

We seek nothing from you. We do not want to rule you and we do not want to control you. All we wish is to live on earth in peace. As always, we will be helpful neighbors and generous acquaintances. We will remain honest business partners and trustworthy employees. We will continue to be loving parents and respectful children. We will not, however, be sacrificial animals. We reject the idea that others have a right to our lives and our property. We will not demand anything from you, and we will no longer acquiesce to any demands upon us. We have left that game. We reject all obligations to any person or organization beyond honesty, fair dealing and a respect for human life. We will shortly explain what we believe, but we are not demanding that you agree with us. All we ask is that you do not try to stop us. Continue to play the game if you wish; we will not try to disrupt it. We have merely walked away from it. We wish you peace.

To Those Who Will Condemn Us:

We will ignore you. We welcome and seek the verdict of a just God, before whom we are willing to expose our innermost thoughts. Are you similarly willing? We would stand openly before all mankind if it were not suicidal. Perhaps some day we will have to accept slaughter for our crime of independence, but not yet. Your criticism and your malice are much deeper than mere disagreements of strategy or philosophy. You do not oppose our philosophy, you oppose our existence. Our presence in the world means that your precious ideals are false. Some of you would rather kill us than face the loss of your ideologies, just as those like you have either hated or killed every sufficiently independent human. You present yourselves to the world as compassionate, tolerant and enlightened, but we know that your smooth words are costumes. Oh yes, we know you, servant of the state; don’t forget, we were raised with you. We played with you in the schoolyard, we sat next to you in the classroom. Some of us studied at the same elite universities. We watched as you had your first tastes of power. We were the boys and girls standing next to you. Some of us were your first victims. We are not fooled by your carefully crafted public image.

What We Believe

#1: Many humans resent the responsibilities that are implied by consciousness. We accept those responsibilities and we embrace consciousness. Rather than letting things happen to us (avoiding consciousness), we accept consciousness and choose to act in our own interest. We do not seek the refuge of blaming others, neither do we take refuge in crowds. We are willing to act on our personal judgment, and we are willing to accept the consequences thereof.

#2: We believe in negative rights for all: That all humans should be free to do whatever they wish, as long as they do not intrude upon others; that no man has a right to the life, liberty or property of another; that we oppose aggression, fraud and coercion.

#3: We do not believe that our way of life, or any other, will make life perfect or trouble-free. We expect crime and disagreements and ugliness, and we are prepared to deal with them. We do not seek a strongman to step in and solve problems for us. We agree to see to them ourselves.

#4: We believe in free and unhindered commerce. So long as exchanges are voluntary and honest, no other party has a right to intervene – before, during or after.

#5: We believe that all individuals should keep their agreements.

#6: We believe that honestly obtained property is fully legitimate and absolute.

#7: We believe that some humans are evil and that they must be faced and dealt with. We accept the fact that this is a difficult area of life.

#8: We believe that humans can self-organize effectively. We expect them to cooperate. We reject impositions of hierarchy and organization.

#9: We believe that all humans are to be held as equals in all matters regarding justice.

#10: We believe that the more a man or woman cares about right and wrong, the more of a threat he or she is perceived to be by governments.

#11: We believe that there are only two true classes of human beings: Those who wish to exercise power upon others – either directly or through intermediaries – and those who have no such desires.

#12: Large organizations and centralization are inherently anti-human. They must rely upon rules rather than principles, treating humans within the organization as obedient tools.

Our Plans:

We are building our own society. We will supplement traditional tools with networking, cryptography, sound money, digital currency and anonymous messaging. Our society will not be centrally controlled. It will rely solely on voluntary arrangements. We welcome others to join us. We are looking for people who are independent creators of value, people who act more than talk, and people who do the right thing because it is the right thing. We will develop our own methods of dealing with injustice, built on the principles of negative rights, restitution, integrity and equal justice. We do not forbid anyone from having one foot in each realm – ours and the old realm – although we demand that they do no damage to our realm. We are fully opposed to any use of our realm to facilitate crime in the old realm, such as the hiding of criminal proceeds. We expect to be loudly condemned, libeled and slandered by the authorities of the old regime. We expect them to defend their power and their image of legitimacy with all means available to them. We expect that many gullible and servile people will believe these lies, at least at first. We will consider traps laid for us to be criminal offenses. Any who wish to join us are encouraged to distribute this declaration, to act in furtherance of our new society, to voluntarily excel in virtues and to communicate and cooperate with other members of the new society.

Free, unashamed men cannot be ruled.

We are The Free and The Unashamed.

By Carl Watner

[Editor’s Note: This article was started in early February 2009, after the election of Obama, after world stock markets had lost some $ 32 trillion dollars in value, and before the great stimulus package had been hammered out. The Dow Jones Industrial Average stood just above 8,000. It will likely be posted on the worldwide web in the next few months. However, subscribers will probably not read it in their newsletters until sometime in 2010. Please keep this dating in mind, just in case the economic and political conditions under which it was written change, either for the better or the worse.]

Can you identify the author and the date of publication of the following book excerpt:

An increase in the supply of money [and credit] depends mainly upon borrowing. Unless the psychology of the American consumer can be turned around, consumers will not start new borrowing that will create more new money. Until consumers start to demand more and buy more, business will not expand more. Therefore business will not borrow more. Therefore, in spite of the great increase in the money supply caused by the Federal deficits, the total money supply will continue to shrink. As it shrinks it will bring about bankruptcies, and these bankruptcies will cause others, which will end in a great domino display of deflation. The destruction of money will far outpace the manufacture of money by the Fed, and we shall be plunged into the worst depression in the history of the world. [1]

Any guesses: Murray Rothbard, AMERICA’S GREAT DEPRESSION, 1963; Harry Browne, HOW YOU CAN PROFIT FROM THE COMING DEVALUATION, 1970; Alexander Paris, THE COMING CREDIT COLLAPSE, 1974; James Dines, THE INVISIBLE CRASH, 1975; C. V. Myers, THE COMING DEFLATION, 1976; Robert Prechter, AT THE CREST OF THE TIDAL WAVE, 1995, and CONQUER THE CRASH, 2002; Roger Bootle, THE DEATH OF INFLATION, 1996, and MONEY FOR NOTHING, 2003; Nouriel Roubini and Brad Setser, BAILOUTS OR BAIL-INS, 2004? Well, you had no idea there were so many doomsday Cassandras, did you? If you guessed Robert Prechter (because he is mentioned in my subtitle), you were wrong. The quote is actually from C.V. Myers, whose biography, FIFTY YEARS IN THE FURNACE (1989), I reviewed in December 1990, in Whole Number 47.

Now what was the point of this little quiz? It simply is to observe that there have been a number of economists and investment advisors who predicted a second Great Depression. Every one of these authors recognized that “every financial mania in history has been followed by a commensurate bust,” but only two or three of them were so astute as to get their timing close to the event. [2] Myers, as we can see, was thirty-two years ahead of his time. Of the list I presented, only Bootle, Roubini, and Prechter were within ten years of an accurate prediction. Of these three, not only is Bob Prechter a long-time subscriber to THE VOLUNTARYIST, but he is the only one to have fleshed out a theory of mass human behavior which links human emotions and psychology to the credit booms and busts we have recently experienced.

How did Bob Prechter become the world’s best known advocate of Elliott wave theory, one of the few economists to anticipate a deflationary depression, and a voluntaryist, to boot? Born in 1949, Bob is father of two grown children. He attended Yale University on a full scholarship and graduated in 1971 with a degree in psychology. After an interlude as a drummer in a rock band, he joined Merrill Lynch as a market technician in 1975. His father was a student of finance and the stock market, and on his dad’s advice, Bob invested in South African gold stocks a year after his graduation. Within sixteen months he had quintupled his money and he was drawn inexorably toward the stock market as a career. (It appeared potentially more profitable than making music.) While at Merrill Lynch, a friend gave him a “barely readable photocopy of Hamilton Bolton’s 1960 book” about Ralph Nelson Elliott, who had charted stock prices throughout the Great Depression. [3] Elliott (1871-1948) was a professional accountant who had worked in the restaurant industry and for the U.S. State Department in Nicaragua during the 1920s. While recovering from a serious illness, he discovered the fractal nature of stock prices. He subsequently wrote two books, a series of articles, and over 100 newsletters describing the wave-like structures he observed in his research. Bob found Elliott’s theory intriguing because of his own personal interest in human psychology, and because no other theory of market behavior had ever come close to matching the accuracy of the forecasts of the Elliott Wave Principle. Prechter began charting stock prices himself, and eventually teamed up with A. J. Frost, another Elliottician, in 1978, to co-author THE ELLIOTT WAVE PRINCIPLE. This is “the only book in stock market history” to have forecast not only a great bull market but its subsequent complete retracement. [4] Part 2 of that forecast seems to be happening now. Prechter later developed his thesis of a deflationary depression in his 1995 book, AT THE CREST OF THE TIDAL WAVE: A Forecast for the Great Bear Market, and in his 2002 book, CONQUER THE CRASH: You Can Survive and Prosper in a Deflationary Depression.

In 1976, while at Merrill Lynch, Bob began writing THE ELLIOTT WAVE REPORTS for the firm. In 1979, he left to start his own publication, THE ELLIOTT WAVE THEORIST. In 1982, THE ELLIOTT WAVE THEORIST called “for the Dow to rise 3000 points from the 900 level.” [5] By 1985, his publication was on its way to becoming the premier, must-read investment newsletter on Wall Street. This came about as a result of word of mouth interest, but also because of Bob’s success in the 1984 options trading division of the U.S. Trading Championship contest. He poured his efforts into the competition, and at the end of the 4 month trials, his account was up 444%. “At the time, it was the highest score in the history of the contest.” [6] About 90% of his financial predictions between 1983 and 1988 were right on the mark. In December 1989, Financial News Network named him “Guru of the Decade.”

However, not all his forecasts were to be so prescient. Despite his earlier successes, and his continued accuracy in forecasting gold and silver (all his commentary appears in HOW TO FORECAST GOLD AND SILVER USING THE WAVE PRINCIPLE), between 1991 and 1999, his stock market predictions were well off the mark.

[A]fter exiting near the [stock market] high in 1987, I concluded after the crash that the bull market was probably over and did not re-enter the market. Even after the market made new highs, the advent of the new horde of green investors, who were buying stocks like catfish in a feeding frenzy, kept me too cautious to recommend buying the market as a whole. [7]

As Bob puts it, the duration of waves is the least predictable element in Wave Principle forecasting, but that doesn’t necessarily destroy its truth or effectiveness. What the Wave Principle “provides [is] an objective means of assessing the relative probabilities of possible future paths for the market.” [8] The Wave Principle unequivocally encouraged him to stick to his guns, even if his timing was years early in predicting disaster. In fact, that is one personality trait that had been with him for years. “[W]hile attending summer school [in his teens] with the Georgia Governor’s Honor Program, [he] was given a psychological test and told that one of [his] skewed traits was ‘tough-mindedness.'” From his adult perspective this was a benefit: if you think the stock market crowd is on a binge and about to stampede over the cliff, the time to depart is well before it reaches the precipice. Better a year too early, than a day late. [9]

Bob’s interest in Elliott was undoubtedly sparked by his college studies in psychology, As Bob describes himself:

I am an observer of crowd behavior. … In my opinion, all history flows from the truth that men have a nature, that this nature produces patterns of interaction, and that these patterns of interactions produce results. Elliott broke major ground in the field of sociology when he showed that behavioral patterns inherent in human interaction shape financial events. I would add that they shape all collective events and trends. [10]

“Ralph Nelson Elliott’s great insight,” was that “financial markets have a specific organizational law of patterned self-similarity,” and that “social or crowd behavior trends and reverses in recognizable patterns.” [11] He identified 13 patterns or waves that recurred in the market data he studied during and after the Great Depression. Mankind’s progress, he noted, is not in a straight line, but neither does it occur randomly or cyclically, “Rather progress takes place in a three steps forward, two steps back fashion, a form that nature prefers.” [12] “In the biggest imaginable picture the trend is always up, according to the Wave Principle. Mankind is on an upward path, with corrections along the way as he moves through history.” [13]

Prechter, building on Elliott’s work, recognized that there must exist an unconscious herding impulse within humanity that impels trends in social mood. He proposes that this herding impulse is central to the working of the economy and valuations in the stock market. The herding instincts of early man are still apparent in today’s world. “Herding is an unconscious impulsive behavior developed and maintained through evolution.” [14] The knowledge that others’ investment decisions can determine their own success or failure creates an environment of uncertainty, in which people are ripe for taking cues for their own actions from others. “Herding induces feelings of safety and well-being” so investors whether buying or selling with the herd “are always acting unconsciously to reduce risks, thanks to the emotionally satisfying impulse to herd.” When humans do not know what to do “they sometimes act as if others do, and follow them as if following the herd” – even though “they don’t realize that most others in the herd are just as uninformed, ignorant, and uncertain as they are.” Herding occurs in a rising stock market. Buyer’s think, “‘The herd must know where the food is. Run with the herd and you will prosper.’ Sellers in a falling market appear to think, ‘The herd must know there is a lion racing toward us. Run with the herd or you will die.'” [15]

Combining observations from both sociology and economics, Prechter has developed a theory of socionomics to explain the relationships between the stock market, society, popular culture, and government. His basic “socionomic” insight is that social events do not shape social mood, but rather the herding impulse and social mood shape events. “Major historic events which are often considered important to the future (i.e., economic activity, lawmaking, war) are not the causes of change; they are the result of mass mood changes that have already occurred.” [16] The market does not respond to outside events, such as natural disasters, the outcome of political elections, revolutions, or wars. Rather, “collective psychology is impulsive, self-generating, self-sustaining, and self-reversing. … Events that make history are the result of mass mental states that take time to develop. This is the only possible explanation for the constancy of structure and consistency of pattern that markets reveal.” [17]

Prechter points out that most people believe that history shapes social mood, whereas the truth is exactly the opposite: collective mood shapes history. The stock market, in which people can express their moods nearly instantaneously, is a register of social mood and the mass emotional outlook. In other words, the stock market goes down because people’s mood has changed from optimistic to pessimistic. “An increasingly optimistic populace buys stocks and increases its productive endeavors. An increasingly pessimistic populace sells stocks and reduces its productive endeavors.” [18] “The cause of future events is changes in the mass emotional outlook. That … comes first. … People’s emotional states cause them to behave in ways that ultimately affect economic statistics and politics.” [19] For the overall social mood to change, “all that is required is for some particularly susceptible people to undergo a substantial change in mood, and/or for most people to undergo some [small] change in mood.” [20]

This interpretation of mass psychology and financial events is particularly applicable to today’s debate among free market advocates as to whether deflation or inflation will rule the day. As one commentator has calculated: the world stock market has lost $ 30 trillion in value during the last year; the world housing market has suffered a net loss of another $ 30 trillion. “This doesn’t even include the losses from other asset classes that have been decimated, such as corporate bonds, commodities, and commercial real estate.” [21]

Can the United States government and the Federal Reserve in Washington jump start the economy – even with a trillion here or a trillion there, when worldwide losses are of such a magnitude? Furthermore, how effective can the government be in changing social mood? Despite what most people think, government officials do not affect trends; they only react to them. Prechter’s observations are confirmed by the Japanese experience of the last two decades. Neither the Bank of Japan or the Japanese Ministry of Economics have been able to “inflate” their economy out of its doldrums. [22] Is it true, as most people believe, that Federal Reserve officials really know what they are doing? Prechter says they don’t, and labels this popular belief (that they can “direct” the economy) the fallacy of the potent director. [23] Treasury Department and Federal Reserve officials cannot force banks to lend, nor people to borrow if everyone is pessimistic about the future of the economy.

Based on the Wave Principle, Prechter has forecasted a second Great Depression based on the peaking of a wave of a very large size. Never before has an Elliottician been alive to [witness] the termination of a wave structure of this magnitude, when all fifth wave cycles terminate at the same time. Elliott Wave analysis supports the fact that during the last two centuries, the various fifth waves have unfolded according to the rules and guidelines of the Wave Principle. This is a strong indication that the biggest bear market since the 1700s is a reality, and gives credence to Prechter’s ongoing prediction that the Dow Jones Industrial Average will fall back below 1000, and probably to below 400. [24]

As Prechter sees it, the inflation of the past hundred years has been “not primarily currency inflation but credit inflation.” [25] The entire world has been on a credit binge based on the marriage of three institutions: fiat money, fractional reserve banking, and government subsidies for the creation of credit. Gold and silver have gradually disappeared from our monetary system, and have been replaced by irredeemable legal tender paper money. Government legislation and court decisions have built up a system of central banks in every country that operate on minuscule reserves (hence the name, fractional reserve banking). Government and corporate borrowing, housing and real estate mortgages, and personal loans have reached all-time nominal highs, as governments have tried to “buy” public support. The ability of governments, individuals, and corporations to repay their debts is now at all time lows. If borrowers pay back their loans without renewing them, or if borrowers default on their loans, the approximate 600 to 1 fractional reserve multiplier (i.e., for every $ 1 loaned into existence, another $ 600 may be created) goes into a devastating reverse gear. [26] Printed currency stays in the system, but inflated credit can implode upon itself. “Total credit will contract, so bank deposits will contract, so the supply of money will contract, all with the same degree of [reverse] leverage with which they were initially expanded. Th[is] immense reverse credit leverage of zero-reserve (actually negative-reserve) banking, then, is the primary fuel for a deflationary crash.” [27] As Prechter concludes, “Credit deflation is the most devastating financial event of all.” [28]

Of the three items listed in our sub-title to this article, we have discussed Bob Prechter and Elliott Wave theory but what of their relation to voluntaryism? Why should a voluntaryist be interested in these topics, and why should Bob Prechter be a voluntaryist?

As Prechter explains it, initially he was influenced by his father’s support of limited government. Then he began to see government’s negative influence in the running of the courts, the police, and the military. Eventually he reached the point where he could declare himself “100% for voluntaryism.” [29] As an example of this, in 1995, in AT THE CREST OF THE TIDAL WAVE, he wrote:

The only sound monetary system is a voluntary one. … [P]rices should be denominated not in state fictions, such as dollars, yen, or francs, but in grams of gold. Anyone might issue promissory notes as currency, but the acceptance of such certificates would then be an individual decision, and risk of loss through imprudence or dishonesty would be borne only by a few individuals by their own conscious choice after considering the risks. … Thievery and imprudence will not disappear among men, but at least such tendencies in a free market for money would not have the potential to be institutionalized, as they are when a state controls the currency. … [N]ationwide disasters that state controlled money has facilitated throughout history … have … had global repercussions. [30]

A year later in his book, PRECHTER’S PERSPECTIVE, he again wrote that “The only way to guarantee that politicians will never again inflate is to introduce private money and ban legal tender laws.” The production of money would be open to “anyone that wants to issue it! The marketplace will choose the soundest forms of money, and competition will insure that they are produced.” [31]

Prechter has also blasted the idea that “a growing economy needs easy credit.” As he puts it, a growing economy needs wise credit, not easy money. Wise credit can never be administered by those in government. “Credit should be supplied by the free market, in which case it will almost always be offered intelligently, primarily to producers, not consumers. Would lower levels of credit availability mean that fewer people would own a house or a car? Quite the opposite. Only the timeline would be different. Initially it would take a few years longer for the same number of people to own their own houses and cars – actually own, not rent them from the banks. Because banks would not be appropriating so much of everyone’s labor and wealth, the economy would grow much faster. Eventually the extent of home and car ownership –actual ownership – would eclipse that of an easy credit society. Moreover, people would keep their homes and cars because banks would not be foreclosing on them. As a bonus, there would be no devastating across-the-board collapse of the banking system, which history has repeatedly demonstrated is inevitable under a central bank’s fiat-credit monopoly.” [32]

Despite his support for free markets in money and banking, Prechter has noted that “none of this had to do with Elliott waves or socionomics.” Nevertheless, he believes that both are compatible with liberty. They remove “the essential crutch upon which government meddling stands: the idea that social events can change the mood of the public.” It would appear that all governments need to do to succeed is to manipulate events, to improve the public’s mood. “But social mood is endogenously regulated, which means that no [government] can change its path.” [33] In other words, Prechter believes that the “collective unconscious herding impulse cannot be tamed, directed, or managed.” [34] This means that government propaganda will be nearly ineffectual and explains why in George Orwell’s 1984 those in government left the proles to their own designs. “As the Party slogan put it: ‘Proles and animals are free’.” [35]

What is the connection between Elliott wave theory, socionomics, and voluntaryism? As Prechter has explained, the “actions of central authorities are irrelevant to whatever is essential to market behavior”, which means they are irrelevant to social mood.

People today almost unanimously agree that government[s] ….have potent and magic powers to shape macroeconomic forces. The cause of this error is once again the belief in extramarket causality. In fact, it is the interaction of millions of people that sets interest rates and regulates the economy. The power of financial “authorities” to manage markets and economies is like the power of the Wizard of Oz: smoke and bluster. … [I]f there is any result at all, … [it] is to make things worse. [Attempts at control misdirect energy and resources.] Complexity theory recognizes nature’s processes of self organization. It is a short step to realize that society operates the same way. That is why free societies are more successful and productive than controlled ones. They self organize far more efficiently than any human directors could make them do. [36]

So if the actions of government authorities are futile and irrelevant, then they must be unnecessary to the survival of a free society. The lessons are clear: political institutions steal from people; they are ultimately disastrous; and government policies, no matter how well intentioned, make things worse. But why does history repeat itself? Why do we keep having government institutions rule us? Why hasn’t mankind learned from its past? Prechter answered these questions long before he was a voluntaryist. He noted that it is one of nature’s laws that mankind will refuse to recognize and willingly accept all of nature’s laws. In fact, this is part of the reason for the very existence of the Elliott Wave Principle: mankind refuses to learn from its own past. Some men can always be counted on to believe that two and two make five; that man can consume before he produces; that special cases exempt men from nature’s laws; that what is lent never need be paid back; that paper is as good as gold; that benefits have no cost; and that the fears which reason supports will evaporate if they are ignored or derided. [37]

This being the case, is there any reason for optimism? “Yes, continually!” Prechter responds. Knowing that social mood is patterned allows you to anticipate all kinds of social trends, which means you can prosper in any financial environment, or even escape from life-threatening social troubles before they arrive. In other words, Prechter’s theory of Socionomics provides a rational and practical approach to harness and benefit from Shakespeare’s famous observation:

There is a tide in the affairs of men 

Which, taken at the flood, leads on to fortune;

Omitted, all the voyage of their life

Is bound in shallows and in miseries.

On such a full sea are we now afloat,

And we must take the current when it serves

Or lose our ventures.

Then, with your will go on. [38]

Boxed Quotes to Accompany This Article:

When the bottom dropped out of the stock market, the wealthy were hit first. But it wasn’t long before the Depression came sweeping through our little town. “The banks went broke and closed their doors. It was hard to believe that the money we’d saved there was really gone.”

– Cecil Culp in WE HAD EVERYTHING BUT MONEY

(Deb Mulvey, editor, Greendale: Reiman Publications, 1992, p. 14).

There are two ways that credit can be liquidated. The first can be by inflation, by increasing the amount of money and credit in existence, so that the value or purchasing power of each unit of money is thereby diminished. A debt of $ 500, which originally would have bought one ounce of gold, is paid off with $ 500 inflated dollars with a purchasing power of 1/100 of the original, of which $ 500 inflated dollars will buy only 1/100th of an ounce of gold. Or the “second way massive debt can be liquidated is through bankruptcy. That is to say, default. A man lent a hundred dollars. The debtor goes broke and says to the man simply, ‘I’m sorry – I can’t pay you back – I don’t have any money’. … [This] means deflation; that is bankruptcy and depression.”

– Paraphrased and quoted from C. V. Myers, THE COMING DEFLATION

(New Rochelle: Arlington House, 1976 [1978], pp. 33-34).

End Notes

[1] C. V. Myers, THE COMING DEFLATION (New Rochelle: Arlington House, 1976, Twelfth Printing, August 1978), pp. 199-200.

[2] Robert R. Prechter, Jr., PRECHTER’S GLOBAL MARKET PERSPECTIVE, January 2009, p. 11.

[3] Peter Kendall, ed., Robert R. Prechter, Jr., PRECHTER’S PERSPECTIVE (Gainesville: New Classics Library, 1996), p. 8.

[4] Frost and Prechter, ELLIOTT WAVE PRINCIPLE (Chichester: John Wiley & Sons, Ltd, 1978, First paperback edition November 2000), p. 239.

[5] Robert R. Prechter, Jr., AT THE CREST OF THE TIDAL WAVE (Gainesville: New Classics Library, 1995), p. 13. In August 1982, the Dow touched down at 777; by the summer of 1987 it was up to 2700.

[6] PRECHTER’S PERSPECTIVE, op. cit., p. 18.

[7] AT THE CREST OF THE TIDAL WAVE, op. cit., p. 203.

[8] Elliott Wave International, “A Capsule Summary of the Wave Principle,” (2008), p. 2. Referenced as “Capsule Summary” in later footnotes.

[9] PRECHTER’S PERSPECTIVE, op. cit., p. 102 and AT THE CREST OF THE TIDAL WAVE, op. cit., p. 216.

[10] PRECHTER’S PERSPECTIVE, op. cit., p. 24.

[11] Robert R. Prechter, Jr., THE WAVE PRINCIPLE OF HUMAN SOCIAL BEHAVIOR AND THE NEW SCIENCE OF SOCIONOMICS (Gainesville: New Classics Library, 1999, Second Printing 2002). p. 6. Also see “Capsule Summary,” op. cit., p. 1.

[12] “Capsule Summary,” op. cit., p. 3.

[13] PRECHTER’S PERSPECTIVE, op. cit., Frontispiece quoting Robert Prechter.

[14] Robert R. Prechter and Wayne D. Parker, “The Financial/Economic Dichotomy in Social Behavioral Dynamics: The Socionomic Perspective,” being an electronic version of an article published in THE JOURNAL OF BEHAVIORAL FINANCE, Vol. 8, No. 2, pp. 84-108. Page 11 of the electronic version published by Socionomics Foundation, 2009.

[15] ibid., pp. 11-12.

[16] Robert R. Prechter, Jr., PIONEERING STUDIES IN SOCIONOMICS (Gainesville: New Classics Library, 2003), p. 4. Also see “The Direction of Social Causality,” in THE WAVE PRINCIPLE OF HUMAN SOCIAL BEHAVIOR AND THE NEW SCIENCE OF SOCIONOMICS, op. cit., pp. 329-330.

[17] PRECHTER’S PERSPECTIVE, op. cit., p. 35.

[18] Robert R. Prechter, Jr., CONQUER THE CRASH (Hoboken: John Wiley & Sons, Ltd., 2002), p. 18.

[19] PRECHTER’S PERSPECTIVE, op. cit., pp. 183-184.

[20] PIONEERING STUDIES IN SOCIONOMICS, op. cit., p. 5.

[21] Eric Sprott and Sasha Solunac, “So You Think 2008 Was Bad? Welcome to 2009,” Posted February 4, 2009 at www.321gold.com/editorials/sprott/sprott020409.html, page 3.

[22] “But in the early 1990s, the authorities found they could no longer create inflation.” See Akio Mikuni and R. Taggart Murphy, JAPAN’S POLICY TRAP: Dollars, Deflation, and the Crisis of Japanese Finance (Washington, D.C.: Brookings Institution Press, 2002), p. 168. See further development of this point in Footnote 13 to this sentence on pp. 273-274.

[23] CONQUER THE CRASH, op. cit., p. 123, and AT THE CREST OF THE TIDAL WAVE, op. cit., p. 217.

[24] AT THE CREST OF THE TIDAL WAVE, op. cit., pp. 30, 41, and 409.

[25] ROBERT PRECHTER’S MOST IMPORTANT WRITINGS ON DEFLATION, Excerpted from the June 16, 2006 ELLIOTT WAVE THEORIST, p. 37.

[26] See ROBERT PRECHTER’S MOST IMPORTANT WRITINGS ON DEFLATION, November 17, 2005 ELLIOTT WAVE THEORIST, pp. 29-30.

[27] CONQUER THE CRASH, op. cit., p. 111.

[28] ROBERT PRECHTER’S MOST IMPORTANT WRITINGS ON DEFLATION, Excerpted from the March 23, 2007 ELLIOTT WAVE THEORIST, p. 41.

[29] Personal email communication from Robert Prechter, November 2, 2008.

[30] AT THE CREST OF THE TIDAL WAVE, op. cit., p. 359.

[31] PRECHTER’S PERSPECTIVE, op. cit., pp. 194-195.

[32] ROBERT PRECHTER’S MOST IMPORTANT WRITINGS ON DEFLATION, Excerpted from the February 20 2004 THE ELLIOTT WAVE THEORIST, p. 27.

[33] Personal email communication from Robert Prechter, January 7, 2009.

[34] ROBERT PRECHTER’S MOST IMPORTANT WRITINGS ON DEFLATION,

Excerpted from the June 16, 2006 ELLIOTT WAVE THEORIST, p. 38.

[35] George Orwell, 1984 (New York: The New American Library, 28th Printing, December 1962), Part I, Section VII, p. 62.

[36] THE WAVE PRINCIPLE OF HUMAN SOCIAL BEHAVIOR AND THE NEW SCIENCE OF SOCIONOMICS, op. cit., p. 369.

[37] ELLIOTT WAVE PRINCIPLE, op. cit., pp. 169-170.

[38] AT THE CREST OF THE TIDAL WAVE, op. cit., pp. 11 and 21. Taken from JULIUS CAESAR, Act IV, Scene 3.

By Carl Watner

Imagine that you were the leader of a revolutionary government that had recently and successfully wrested power from its parent country. Imagine that some of your citizens refused to obey the laws that you and your legislature had promulgated. What would you do? Would you ignore their disobedience; or would you send the police and army after them? How would you assert your authority, and maintain the power and legitimacy of your government?

Such a situation faced President George Washington and Secretary of the Treasury Alexander Hamilton after Congress passed a federal revenue law on March 3, 1791. [1] How they responded to this and other early threats to their power illustrates that even newly-founded and limited governments, so-called, share the same predicament as established States. They must collect their revenues regardless of the cost. If they fail to suppress disobedience, they will only be faced with more disobedience, with the end result being an ultimate challenge to their existence.

Over the years, I have published articles describing the western Pennsylvania Whiskey Rebellion of 1794. My purpose in those articles has generally been to demonstrate that our early American government has always had, and always exercised, its sovereign power to tax and seize the property or body of anyone refusing to pay their taxes. [2] What recently renewed my interest in the topic was reading an article on civil disobedience in the Kentucky territory during the same era. [3] As it turns out, resistance to payment of the federal excise tax on whiskey was widespread in all American frontier areas, from northern New York to southern Georgia. Furthermore, as Mary Tachau, author of this study, observes; until recently “this remarkable story of tax evasion” has experienced a near historical blackout and cover-up. [4]

Resistance to the excise was part and parcel of the frontiersman’s British heritage and tradition. The inhabitants of the British Isles, especially Irishmen, had distilled their own whiskey for centuries. When a levy on spirits in Ireland was introduced in 1661, “it was totally ignored.” [5] Englishmen, too, developed a “hearty dislike” for excise taxes. [6] In the era before modern science, whiskey was valued not only for its intoxicating effects, but for its use as an anesthetic, antiseptic, and common everyday medicine. To the frontier farmer, distilling was not only a natural birthright, but a condition necessary to his economic survival. It was practically the only way to convert his grain into ready money, by transporting it over the mountains to where there was a cash market for his brew. As far as the American frontiersman was concerned, his whiskey and freedom hung together. [7] He owned the seed grain, he owned the land, he labored to harvest the crop, and he used his own equipment to distill the brew. Whose property had he violated; whom had he hurt; and was there any identifiable party to whom he owed money for the right to do as he pleased? “To convert [his] grain into spirits was considered to be as [much] a natural right as to convert grain into flour” for his bread. Why should he be subject to a duty for drinking his grain, rather than eating it? [8]

Throughout much of the 18th Century, vast stretches of the American frontier “were left without the slightest” trace of government authority. [9] To the American frontiersman, London might as well have been in another universe, and the new capitol of the United States, Philadelphia, on another continent. Central government could be safely ignored. Other than attempting to deliver the mail, it had practically no presence on the frontier. It offered little protection from the Indians. In 1791, while Kentucky was still officially part of Virginia, “it was difficult to organize a tax collection system” because tax collectors resigned just about as fast as new ones could be appointed. [10] Most Kentuckians viewed the excise law as so odious that between 1792 and 1796, no lawyer could be found to represent the federal government and prosecute those who failed to pay their whiskey excise. [11] Even the governor of the state refused to pay. [12]

The frontier regions west of the Allegheny mountains had a long history of ignoring governmental authority. During the 1760s, Governor John Penn of Pennsylvania had referred to his western citizens as a “lawless ungovernable crew.” [13] After the start of the American Revolution, David Rittenhouse, treasurer of the Commonwealth of Pennsylvania, stated that “adversaries of the Pennsylvania government were loath to pay taxes.” He predicted that the likely consequence of non-payment would be “the early demise of the state.” [14] Other frontier areas had their own backlash against state and colonial government. In the early 1770s, North Carolina regulators attacked their local courts, and the same thing had occurred in western Massachusetts during Shay’s Rebellion of 1786-1787. There, the local state authorities had suppressed the disorder. The case of western Pennsylvania was only different in the sense that it was in closer geographic proximity to federal officials in Philadelphia, and thus a direct and “embarrassing challenge to [their] authority.” [15] Hamilton and Washington chose to crush resistance to the federal excise in western Pennsylvania, not only because it was closer to them, but because it would be less expensive than sending troops to North or South Carolina, or Kentucky. As Hamilton observed, “Crush resistance at the most vulnerable point and the more remote regions will fall into line.” [16]

Unlike the situation in Kentucky, there were politicians in western Pennsylvania who were willing to serve the federal government and collect the excise. Pennsylvania Congressman William Findley explained this distinction to Governor Mifflin of Pennsylvania in 1792.

“‘It is well known,’ Findley reported, ‘that in some counties, as well of Virginia as of Pennsylvania, men have not, and cannot be induced by any consideration to accept of the excise offices. In those counties there have been no riots nor threatening resolutions; but this arises from the perfect unanimity which subsists in the dislike to the law’.” [17] However in western Pennsylvania, the Treasury repeatedly pressed the issue of collection and found John Neville, a well-known state official to represent the federal government. Neville was wealthy by local standards and had originally opposed the federal excise tax when he “was a member of the Pennsylvania assembly when that body adopted a resolution condemning the tax in 1791.” When he later was appointed to the office of excise inspector, his neighbors thought that he “was giving up his principles for a bribe and bartering the confidence they had in him for” a federal salary. “He became a catalyst for mounting opposition to the law.” [18]

Although all the key political players in the decision to snuff out the Whiskey rebellion were Federalists and supporters of a strong central American government, there were some differences among them as to how government force was to be used. The general Federalist outlook was that any opposition to the whiskey excise was a challenge “to the very roots of authority and order.” [19] Federalists believed that every good government “must provide for its own security and preservation,” [20] and they saw “a permanent standing army” as a way “to coerce the people and silence them into obedience to authority.” [21] President Washington took opposition to the nation’s law as a personal affront to himself. “He felt that the excise was a just law,” and he viewed any opposition to it as “equivalent to advocating separation from the union, ‘the most dreadful of all calamities’.” [22] Washington certainly “exemplified the Federalist belief that a display of force was necessary” not only to subdue the rebels, but to show the world that his government was committed to a lasting union” of the states. [23]

In early September 1792, Alexander Hamilton urged President Washington to issue a public proclamation taking a strong stand on the patriotic necessity of paying the excise. As Edmund Randolph, the United States Attorney General (1789-1794), pointed out, the enforcement of the excise law was “a delicate problem with potentially wide-ranging ramifications.” [24] The federal government had no soldiers of its own. It had to rely on state militiamen to enforce its laws. Governor Mifflin of Pennsylvania, a Republican, hesitated to commit his state’s militia, “and he argued heatedly that out of hatred for the excise, unwillingness to march on fellow citizens, or desire to avoid a long expedition, large numbers of [his] militia might ignore his orders.” [25] Instead of sending an army after the resisters, Randolph advocated the use of the civil courts by indicting the tax evaders and trying them in the regular courts. Only if that failed, would he consent to calling out the militia to enforce the law. [26] In contrast to Hamilton, Randolph argued “The strength of a government is the affection of [its] people,” not their fear of its army. [27]

President Washington took the position that military force was only to be used as a last resort. His Anti-federalist opponents had adopted the Whig opposition to standing armies. “[O]therwise there would be a cry at once, ‘The cat is let out; we now see for what purpose an army was raised’.” Washington feared that the use of troops to enforce the law would shift the public argument from the question of law enforcement to the question of standing armies. [28] In its final version, the presidential proclamation of September 15, 1792 was issued as a public broadside and published in the leading newspapers. “It decried all actions ‘tending to obstruct the operation of the laws of the United States for raising a revenue upon [distilled] spirits … subversive of good order, contrary to the duty that every citizen owes his country and to the laws, and of a nature dangerous to the very being of government’.” Washington warned all opponents of the government and its excise that they “would be dealt with harshly.” [29]

Of all the participants in the discussions about how to enforce the law, Alexander Hamilton was, from the beginning, the most militant. He had originally conceived the idea of the whiskey tax as part of his plan to fund the revolutionary war debt, and as early as July 1792, he had advocated proceeding against the non-payers in western North Carolina. He was dissuaded from this idea by Chief Justice of the Supreme Court, John Jay, who warned that nothing could be worse for the new federal government than a military humiliation at the hands of tax rebels. “No strong declarations should be made unless there be ability and disposition to follow them with strong measures.” [30] Nevertheless, Hamilton feared that “if forceful action was not taken ‘the spirit of disobedience … [would] naturally extend and the authority of the government will be prostrate’.” [31]

During the two years following the issuance of the federal proclamation little progress was made in satisfying the concerns of the excise resisters. In February 1794, President Washington received, what he perceived to be a treasonous petition of grievances against the national government sent by the members of the Mingo Creek Society in Washington County, Pennsylvania. [32] They sought free navigation of the Mississippi River, government protection from the Indians, and relief from the excise. The following month, John Neville, their regional supervisor for the collection of the excise, was accosted. In July, his house was surrounded and fired upon by a crowd of fifty men. The next day it was torched by a mob of over 400. Several men were killed, but Neville escaped. When this news reached President Washington and Secretary of the Treasury Hamilton in Philadelphia, they conferred with other officials. At a conference on August 2, 1794, Hamilton told the representatives of the Pennsylvania state government that the moment of crisis had arrived. [33] “The immediate question,” he concluded, was “whether the government of the Untied States shall ever raise revenue by any internal tax.” [34] Hamilton advocated raising a national militia of 12,000 men and marching them to western Pennsylvania to put down the rebellion. As Hamilton put it, “Government can never be said to be established until some signal display has manifested its power of military coercion.” [35] President Washington was of a like mind, accepting “Hamilton’s premises about the necessity for strict enforcement lest the laws and government itself be undermined, but he was [also] cognizant that force would not only need public support but would also have political overtones beyond the simple enforcement of the law.” [36] As a result of this conference Supreme Court Justice James Wilson certified on August 4, 1794 that a state of rebellion existed in western Pennsylvania. Washington put out the call for 12,950 militia men from the states of New Jersey, Pennsylvania, Maryland and Virginia. [37] As Governor Mifflin had predicted, “[d]raft resistance was common,” [38] and even after being enrolled, the desertion rate was high. [39]

By the time the national army arrived near Pittsburgh, whatever rebellion may have existed had practically disappeared. “[P]erhaps as many as 2000 ‘rebels’ had fled deeper into the wilderness before the army arrived.” [40] An amnesty was declared for those who would swear their loyalty to the government. Ultimately, about 150 suspects were rounded up and about 20 were transported back to Philadelphia for trial. Two were ultimately convicted, and then later pardoned. [41] Washington “believed ‘this event having happened at the time it did, was fortunate’. The troops had ‘terrified the insurgents,’ and the government had taught its enemies within and without the nation about the spirit and power that bolstered the Union.” [42] It was Hamilton who first coined the term “whiskey insurrection.” In a December 1794 letter he wrote, “Our insurrection is most happily terminated. Government has gained from it reputation and strength.” In an earlier letter of late October 1794 he had written that “the insurrection will do us a great deal of good and add to the solidity of everything in this country.” [43] If Hamilton learned any lesson from the Whiskey rebellion it was that it was best for the government to never employ an inadequate force in subduing its opponents. “‘Tis far better to err on the other side. Whenever the government appears in arms, it ought to appear like Hercules and inspire respect by display of strength.” [44] In retrospect, this was certainly the case. “President Washington raised more troops to put down the Whiskey Rebellion than were ever used to fight the Indians on the frontier and more than any force he had commanded in the American Revolution.” [45]

The main purpose of raising and marching an army to western Pennsylvania was to demonstrate that the federal government was a permanent and secure fixture in the American political environment. It was successful in the sense that it showed the federal government could flex its military muscle hundreds of miles distant from its center of power, but it failed to insure the collection of the excise tax, for in fact, nonpayment of the tax continued for years after the insurrection was suppressed. [46]. This exercise of national power at the time of the Whiskey Rebellion represents a number of “firsts.” It “marked the first time that the federal government used military force to exert its authority [directly] over the nation’s citizens.” [47] It was also the first time that a sitting president personally commanded the military in the field. The Whiskey Rebellion also marked the first time anyone in the United States was arrested and tried for treason in the federal courts. “These trials established the precedent that armed opposition to the execution of a United States statute was equal to ‘levying war’ against the United States and thus was within the constitutional definition of treason.” [48]

The Whiskey Rebellion also clearly demonstrated the nature of limited, constitutional government. As Albert Jay Nock and Walter Lippmann pointed out, the American revolutionaries wanted to separate themselves from the British empire so they could assume the powers hitherto exercised by the English Parliament. The evidence is clear: the heroes of the American revolution and the Founding Fathers opposed the Stamp Act when they were out of power, but supported the whiskey tax when they were in power. Even most frontiersmen and whiskey rebels weren’t against taxes, per se. [49] They had a long history of willingly paying direct land taxes, and simply wanted to lessen their own tax burden by shifting it to the merchants and “large-scale speculator[s] in western lands”. [50] The Federal Constitution gave Congress “the unlimited ‘power to lay and collect taxes, duties, imposts and excises’. … The taxing authority of the … national government … was no less, and was certainly designed to be even greater, than anything attempted by the British government during the 1760s and 1770s.” [51] During the debates over the Constitution, critics pointed out that “the collection of taxes would be enforced … by [a] standing army.” “William Goudy of North Carolina feared that the taxation clause of the proposed Constitution ‘will totally destroy our liberties’.” [52] Thus, it was with some justice that the Scottish poet, Robert Burns, wrote that freedom and whiskey hang together. Taxation is the linchpin of every government. Without the revenue provided by taxation a government could not recruit, field, and pay its soldiers; without soldiers a government could not enforce its laws.

The problem of governance under the new constitution was certainly a many nuanced one. As the Voluntaryist Statement of Purpose points out, “governments must cloak their actions in an aura of moral legitimacy in order to sustain their power,” and the early American politicians certainly understood, recognized, and acted on this insight. The necessity for and the widespread use of force by a government is indicative of its unwilling acceptance by those over whom it rules. “The application of force tells us that many people” will not willingly comply with the law. [53] As George Smith observed: the more force, the less legitimacy; the more voluntary compliance, the less need for force, and the higher the legitimacy level of a given government.

The lessons of the Whiskey Rebellion for the voluntaryist are numerous. First, we must recognize the damaging effects that arise from the government’s initiation of force in the conduct of otherwise benign human affairs. Secondly, we see that we must delegitimize the State through education; that violence must not be used to oppose state violence (because the resort to violence only gives the State an excuse to use its armed forces). Finally, we must see that the strength of a free citizenry is not in how many guns it possesses, but in its collective determination to resist. Opponents of the State must have faith in their fellow human beings – that they will not let them stand alone against the physical force of government; that they will stand together and risk individual physical injury in order to prevent collective injury to their social freedoms. [54]

End Notes

[1] Jerry A. Clouse, THE WHISKEY REBELLION: SOUTHWESTERN PENNSYLVANIA’S FRONTIER PEOPLE TEST THE CONSTITUTION, Harrisburg: Pennsylvania Historical and Museum Commission, 1994, p. 19. For a complete chronology of the Whiskey Rebellion see Steven R. Boyd (ed.), THE WHISKEY REBELLION: Past and Present Perspectives, Westport: Greenwood Press, 1985, pp. xi-xii.

[2] Carl Watner, “Forfeiture Laws: A Reminder from the Past,” Whole Number 68, THE VOLUNTARYIST (June 1994), p. 6. Also see Forrest Carter, “George Washington and the Whiskey Tax,” Whole Number 72, THE VOLUNTARYIST (February 1995), p. 2 (being from Chapter 3 of THE EDUCATION OF LITTLE TREE [1976]). Also see the comments by Joseph Earl Dabney reprinted in THE VOLUNTARYIST, Whole Number 111 (Fourth Quarter 2001), pp. 2-3 excerpted from his book MOUNTAIN SPIRITS, Asheville: Bright Mountain Books, 1974, p. xvi.

[3] Mary K. Bonsteel Tachau, “The Whiskey Rebellion in Kentucky: A Forgotten Episode of Civil Disobedience,” 2 JOURNAL OF THE EARLY AMERICAN REPUBLIC (1982), pp. 239-259.

[4] ibid., pp. 239-240.

[5] John McGuffin, IN PRAISE OF POTEEN, Belfast: Appletree Press, 1999, p. 11.

[6] William D. Barber, “‘Among the Most Techy Articles of Civil Police’: Federal Taxation and the Adoption of the Whiskey Tax,” 25 WILLIAM AND MARY QUARTERLY (1968), pp. 58-84 at p. 60.

[7] The title for this article was taken from the last stanza of Robert Burns’ poem, “The Author’s Earnest Cry and Prayer” to the Right Honourable and Honourable Scotch Representatives in the House of Commons, 1786. My thanks to Jim Russell for commenting on this article and pointing out that “The Scots, being stubborn, refuse to this day to spell whiskey correctly.” The subtitle of this article was found in Todd A Estes, LIBERTY AND ORDER: REVOLUTIONARY DEMOCRACY AND THE PROBLEM OF GOVERNANCE IN THE EARLY AMERICAN REPUBLIC, Ph.D. dissertation, University of Kentucky, 1995.

[8] Townsend Ward, “The Insurrection in the Year 1794 …” 6 MEMOIRS OF THE HISTORICAL SOCIETY OF PENNSYLVANIA (1858), pp. 110-126 at p. 126.

[9] Ronald Hoffman, “The ‘Disaffected’ in the Revolutionary South,” in Alfred F. Young, THE AMERICAN REVOLUTION, DeKalb: Northern Illinois University Press, 1976, pp. 273-316 at p. 292.

[10] Tachau, op. cit., p. 242.

[11] ibid., pp. 244 and 252.

[12] Henry G. Crowgey, KENTUCKY BOURBON: THE EARLY YEARS OF WHISKEYMAKING, Lexington: The University Press of Kentucky, 1971, pp. 96-97.

[13] Clouse, op. cit., p. 13.

[14] Lemuel Molovinsky, “Tax Collection Problems in Revolutionary Pennsylvania,” 47 PENNSYLVANIA HISTORY (1980), pp. 253-259 at p. 255.

[15] Thomas P. Slaughter, THE WHISKEY REBELLION, New York: Oxford University Press, 1986. First issued as an Oxford paperback, 1988, p. 120.

[16] ibid.

[17] ibid., p. 151.

[18] ibid., p. 153.

[19] ibid., p. 117.

[20] ibid., p. 209.

[21] Richard H. Kohn, EAGLE AND SWORD: The Federalists and the Creation of the Military Establishment in America, 1783-1802, New York: The Free Press, 1975, p. 282.

[22] Clouse, op. cit., p. 20.

[23] ibid., p. 38.

[24] Slaughter, op. cit., p. 123.

[25] Kohn, op. cit., p. 163.

[26] ibid., p. 164.

[27] ibid., p. 272.

[28] Slaughter, op. cit., p. 122.

[29] ibid., p. 123.

[30] ibid., p. 119.

[31] ibid., p. 121.

[32] ibid., pp. 163-164.

[33] Richard H. Kohn, “The Washington Administration’s Decision to Crush the Whiskey Rebellion,” 59 JOURNAL OF AMERICAN HISTORY (1972), pp. 567-584 at p. 571.

[34] Slaughter, op. cit., p. 193.

[35] Kohn, op. cit., p. 583.

[36] ibid., p. 571.

[37] Slaughter, op. cit., p. 212.

[38] ibid.

[39] ibid., p. 214. Also see the comments of Kevin Barksdale, “Our Rebellious Neighbors,” 111 THE VIRGINIA MAGAZINE OF HISTORY AND BIOGRAPHY (2003), pp. 5-31 at p. 22.

[40] ibid., p. 218.

[41] ibid., p. 220.

[42] ibid.

[43] William Hogeland, THE WHISKEY REBELLION, New York: Scribner, 2006, p. 276.

[44] Paul Douglas Newman, “Fries’s Rebellion and American Political Culture, 1798-1800, 119 THE PENNSYLVANIA MAGAZINE OF HISTORY & BIOGRAPHY (1995), pp. 37-73 at p. 65.

[45] Clouse, op. cit., p. 9.

[46] Slaughter, op. cit., p. 226. Also see Mary K. Bonsteel Tachau, “A New Look at the Whiskey Rebellion,” in Steven R. Boyd (ed.), THE WHISKEY REBELLION: Past and Present Perspectives, Westport: Greenwood Press, 1985, pp. 97-118 at p. 99.

[47] “Whiskey Rebellion,” “Consequences” in www.wikipedia.org.

[48] Clouse, op. cit., p. 41.

[49] Hogeland, op. cit., p. 8.

[50] Slaughter, op. cit., pp. 140 and 202.

[51] Thomas P. Slaughter, “The Tax Man Cometh: Ideological Opposition to Internal Taxes, 1760-1790,” 41 WILLIAM AND MARY QUARTERLY (1984), p. 566-591 at pp. 584-585.

[52] ibid., p. 585.

[53] William J. Goode, “Presidential Address: The Place of Force in Human Society,” 37 AMERICAN SOCIOLOGICAL REVIEW (October 1972) pp. 507-519 at pp. 511-518. Excerpts reprinted in THE VOLUNTARYIST, Whole Number 79, April 1996, pp. 2-3.

[54] ibid.

Dear Robert Ringer,

In the very early 1980s, I taught a class at the Free University of Johns Hopkins University (Baltimore, Md.) based on your book RESTORING THE AMERICAN DREAM. A couple of years later I helped start THE VOLUNTARYIST. Many of my writings can now be found at www.voluntaryist.com.

I just read a series of articles on www.robertringer.com comprising your “Core Beliefs” and don’t think your criticism of purist-libertarians is correct. In “The Price of Freedom” you write that we purists “argue that a totally free society can exist only in an atmosphere of anarchy, but this notion conflicts with the reality that civilization cannot exist without a generally accepted code of conduct.” On the contrary, Murray Rothbard in his book FOR A NEW LIBERTY (NY: Macmillan, 1973), pointed out that a libertarian society would have a generally accepted legal code that would be established on the basis of the self-ownership axiom and non-aggression principle. Much of the English common law and law merchant are examples of customary law (as opposed to statutory law). See his discussion of “Law and the Courts,” pages 234-243. I believe most free market anarchists would agree with him.

Later, in your same essay you refer to the great paradox of freedom: that in order to prevent some with a distorted sense of freedom from trampling the freedom of others “to one extent or another freedom must be restricted.” Your further comments in your essay “The Survival of Western Civilization” lead me to believe that you now support compulsory taxation and coercive government because government is needed to “protect its citizens from aggression, both domestic and foreign.” Your justification for government implies an “either-or” alternative: either government protects us from our enemies or we will have no protection at all. This is false: if there were no government, we would still have self-protection, and, furthermore, the specialization of labor on the free market would result in individuals or organizations that sell protection services. They might not provide perfect protection; but then neither does government.

Furthermore, isn’t taxation at odds with the self-ownership axiom and principle of non-aggression? At the very least, those of us who do not want to contribute to the United States Treasury should not be forced to do so. Whatever amount the Treasury can collect voluntarily, the government should use to provide whatever protection that amount will buy. (As an aside, I might ask, what evidence is there that government can do a satisfactory job providing protection? Whenever an organization becomes a coercive, monopolistic service provider, the quality and/or quantity of its service deteriorates. As you know, there is no incentive for such an organization to please its customers because they have no option but to do deal with it.)

The issue is not whether we, as self-responsible human beings, need protection or not, any more than the issue is whether we, as self-responsible beings, require food, shelter, and clothing. Of course, we need all of these things. The question that divides us is: HOW are we to provide ourselves with food, shelter, clothing, and protection? Are some of us to be forced to provide these goods and services to others? Are we to be forced to deal with a coercive monopolist? Do these things require 1) a monopoly of coercion over a given territory, and 2) support via compulsory taxation? Or may we rely upon voluntary efforts to furnish ourselves with food, shelter, clothing, and protection? For the most part, we rely upon voluntaryism for our food, shelter and clothing. Just because government does not take charge and provide them for us, does not mean that we must do without them. Why is protection any different?

The problem with our civilization is that it does not see any contradiction between the generally accepted rule against stealing, and taxation. The mark of a truly civilized society should be the “triumph of persuasion over force.” I believe our civilization will destroy itself and disappear if it continues to rely on coercion and government protection (so-called). What do you think?

Sincerely,

Carl Watner

email: voluntaryist@alltel.net

As a German citizen, as a German university professor, and as a political being, I consider it not only my right, but my moral duty to collaborate in the shaping of German history, to uncover evident abuses, and to combat these. … My purpose has been to rouse student circles – not through an organization, but by means of simple words – not to any act of violence but to a moral discernment of existing grave evils in political life. A return to clear moral principles, to a constitutional state, to mutual trust among men – this is not an illegal aim; on the contrary, it means a restoration of legality.

I have asked myself, taking the point of view of Kant’s categorical imperative, what would happen if this personal principle motivating my actions were to become a universal law. To this there is only one possible answer: it would mean a return of order, security, and trust into our political life. All morally responsible people would raise their voices in unison with us against the threatening domination of might over right, of purely arbitrary will over the will of morality. The tenet that upholds the right of even the smallest ethnic group to self-determination has been forcibly suppresssed [sic] throughout Europe, and no less so the tenet looking to the preservation of racial and cultural individuality. The tenets fundamental to genuine national solidarity have been annihilated by the systematic destruction of the trust between one man and another. There is no more terrible judgment on a national community than the admission, which all of us must make, that no man can feel safe in the presence of his neighbor, that a father can no longer feel safe in the presence of his son.

That was what I wanted, that was what compelled me.

There is an ultimate boundary beyond which all external legality becomes false and immoral – namely, when it becomes the cloak of cowardice, of a lack of courage to take action against notorious breaches of justice. A state that strangles all free expression of opinion and that brands any morally justified criticism, any suggestion for betterment, as a “preliminary to high treason,” subject to the severest penalties, breaks an unwritten law that has always been alive in “sound and popular understanding” and must remain alive.

I have attained this one goal: I am presenting this warning and admonition not to a small private discussion group but before the most responsible, the highest judiciary seat. Upon this admonition, this solemn plea for a return, I am staking my life. I demand that freedom be given back to our German nation. We do not want to eke out our brief existence in the chains of slavery, even though they might be the golden chains of a material abundance.

You have taken from me the status and the rights of a professor, as well was my doctorate attained summa cum laude, and placed me on a footing with the lowest criminal. No trial for high treason can rob me of the dignity of a university professor, of a man who openly and courageously avows his view of the world and the state. The inexorable course of history will vindicate my actions and my purposes; on this I rely with adamant faith. I hope in God’s name that the spiritual forces that will vindicate them may be born in good time from my own nation. I have acted as I had to act in response to an inward voice. I accept the consequences in the spirit of the words of Johann Gottlieb Fichte:

And you must act as though

On you and on your deeds alone

The fate of German history hung,

And the responsibility – your own.

[From Helmut Gollwitzer, Kathe Kuhn, Reinhold Schneider (eds.), DYING WE LIVE: The Final Messages and Records of the Resistance, New York: Pantheon Books, 1956, Third Printing April 1961, pp. 159-161.]

By Carl Watner

[The following article was posted at www.wikipedia.org in late March 2008.]

This article is about the philosophy of life that holds that everything that is invasive and coercive, including Government, is evil and ought to be abandoned, and that mankind ought to embrace the Voluntary system, which includes all that is non-governmental and non-compulsory, in other words, all that people do for themselves, their neighbors, and their posterity, of their own free will.

Voluntaryism is the doctrine that association among people should only be by mutual consent. It represents a means, and end, and an insight. Voluntaryism does not argue for the specific form that voluntary arrangements will take, only that force be abandoned so that individuals in society may flourish. Since voluntaryists hold that the means must be consistent with the end, the goal of an all voluntary society must be sought voluntarily. People cannot be coerced into freedom. Hence, voluntaryists advocate the use of the free market, education, persuasion, and non-violent resistance as the primary ways to change people’s ideas about the State and their behavior toward it. The voluntaryist insight that all tyranny and governments are grounded upon popular acceptance, explains why voluntary means are sufficient and, in fact, the only way to attain a voluntaryist society.

Overview

Voluntaryism is grounded on two axioms. First, the self-ownership axiom holds that each person is and ought to be in control of his own mind, body, and soul. Second, the homesteading axiom holds that each person by the application of his or her own labor to un-owned resources thereby becomes its rightful and legitimate owner.

It is a commonplace observation that human action represents behavior aiming at an improvement over the current state of affairs (from the individual actor’s point of view). Otherwise, that person would not initiate action to bring about change. Therefore, every market transaction is intended to be (and normally achieves) an improvement in satisfaction, and benefits both parties to the exchange. Thus, both parties to a trade improve their state of affairs. On the free and unhampered market this occurs millions and millions of time each day. Its cumulative effect is the prosperity and high standard of living that people experience in a free market economy. Government intervention and central planning (based on compulsion) can only force some people to do what they would otherwise not choose to do, and thereby lessens their satisfaction and impedes economic progress.

Voluntaryists argue that although certain goods and services are necessary to human survival, it is not necessary that they be provided by the government. Voluntaryists oppose the State because it uses coercive means in the collection of revenues and in outlawing would-be service providers. It is impossible to plant the seed of coercion and then reap the fruits of voluntaryism. The coercionist always proposes to compel people to do something they ordinarily wouldn’t do, usually by passing laws or electing people to office. These laws and officials ultimately depend upon physical violence to enforce their wills. Voluntary means, such as non-violent resistance, for example, violate no one’s rights. Voluntaryism does not require of people that they violently overthrow the government or use the electoral process to change it; it merely requires that they cease to support their government and obey its orders, whereupon it will fall of its own dead weight.

Voluntaryism and Anarchism

Libertarian theory, relying upon the self-ownership and homesteading axioms, condemns all invasive acts and rejects the initiation of violence. Anarchists, in particular, assert that the State acts aggressively when it engages in taxation and coercively monopolizes the provision of certain public services such as the roads, courts, police, and armed forces. It is this anarchist insight into the nature of the State – that the State is inherently and necessarily an invasive institution – which distinguishes the anarchist from other libertarians.

By this definition, voluntaryists are clearly peaceful anarchists. Many late 20th and early 21st Century voluntaryists based their thinking upon the ideas of Murray Rothbard and Robert LeFevre, who rejected the concept of “limited” government. First, every government “presumes to establish a compulsory monopoly of defense (police and courts) service over some geographical area. So that individual property owners who prefer to subscribe to another defense company within that area are not allowed to do so.” Second, every government obtains its income by stealing, euphemistically labeled “taxation.” “All governments, however limited they may be otherwise, commit at least these two fundamental crimes against liberty and property.” [1]

What especially distinguishes voluntaryists from other free-market anarchists is their stance on strategy; especially their reliance on nonviolence and non-electoral means to achieve a free society. Like many European and American anarchists during the 19th and 20th Centuries, voluntaryists shun involvement with electoral politics. Rejection of the political means is premised on the insight that governments depend on the cooperation of those they rule. Etienne de la Boetie, a mid-16th Century Frenchmen, who was the first to point out this voluntaryist insight, called for peaceful non-cooperation and non-violent resistance to the State. Despite the advocacy of violence by a number of anarchists throughout history, most anarchists have sought to persuade people, rather than coerce them. Le Boetie’s call for peaceful resistance has been echoed by contemporary anarchists, as well as by a significant number of those who have been described as near-anarchist in their thinking, such as Thoreau, Tolstoy, and Gandhi.

Origins

Voluntaryism has a long and rich historical tradition in the English-speaking world. Its heritage can be traced at least as far back as the Leveller movement of mid-17th Century England. The Levellers can best be identified by their spokesmen John Lilburne (?1614-1657) and Richard Overton (?1600-?1660s) who “clashed with the Presbyterian puritans, who wanted to preserve a state-church with coercive powers and to deny liberty of worship to the puritan sects.” [2]

The Levellers were nonconformist religious types who agitated for the separation of church and state. During the late 16th and 17th Centuries, the church covenant was a common means of organizing the radical religious sects. The church, to their way of thinking, was a voluntary association of equals. To both the Levellers and later thinkers this furnished a powerful theoretical and practical model for the civil state. If it was proper for their church congregations to be based on consent, then it was proper to apply the same principle of consent to its secular counterpart. For example, the Leveller’s ‘large’ Petition of 1647 contained a proposal “that tythes and all other inforced maintenances, may be for ever abolished, and nothing in place thereof imposed, but that all Ministers may be payd only by those who voluntarily choose them, and contract with them for their labours.” [3] One only need substitute “taxes” for “tythes” and “government officials” for “Ministers” to see how close the Levellers were to the idea of a voluntary state.

The Levellers also held tenaciously to the idea of self-proprietorship. As Richard Overton wrote: “No man hath power over my rights and liberties, and I over no mans [sic].” [4] They realized that it was impossible to assert one’s private right of judgment in religious matters (what we would call today, liberty of conscience) without upholding the same right for everyone else, even the unregenerate. The existence of a State church in England has caused continuous friction since the time of the Levellers because there were always those conscientious objectors who either opposed its religious doctrine and/or their forced contributions towards its support.

Voluntaryists also became involved in another controversy in England, from about the mid-1840s to the mid-1860s. In 1843, Parliament considered legislation which would require part-time compulsory attendance at school of those children working in factories. The effective control over these schools was to be placed in the hands of the established Church of England, and the schools were to be supported largely from funds raised out of local taxation. Nonconformists, mostly Baptists and Congregationalists, became alarmed. They had been under the ban of the law for more than a century. At one time or another they could not be married in their own churches, were compelled to pay church rates against their will, and had to teach their children underground for fear of arrest. They became known as voluntaryists because they consistently rejected all state aid and interference in education, just as they rejected the state in the religious sphere of their lives. Three of the most notable voluntaryists included the young Herbert Spencer (1820-1903), who published his first series of articles “The Proper Sphere of Government,” beginning in 1842; Edward Baines, Jr., (1800-1890) editor and proprietor of the LEEDS MERCURY; and Edward Miall (1809-1881), Congregationalist minister, and founder-editor of THE NONCONFORMIST (1841), who wrote VIEWS OF THE VOLUNTARY PRINCIPLE (1845).

The educational voluntaryists wanted free trade in education, just as they supported free trade in corn or cotton. Their concern “for liberty can scarcely be exaggerated.” They believed that “government would employ education for its own ends” (teaching habits of obedience and indoctrination), and that government-controlled schools would ultimately teach children to rely on the State for all things. Baines, for example, noted that “[w]e cannot violate the principles of liberty in regard to education without furnishing at once a precedent and inducement to violate them in regard to other matters.” Baines conceded that the then current system of education (both private and charitable) had deficiencies, but he argued that freedom should not be abridged on that account. Should freedom of the press be compromised because we have bad newspapers? “I maintain that Liberty is the chief cause of excellence; but it would cease to be Liberty if you proscribed everything inferior.” [5]

Although educational voluntaryism failed to stop the movement for compulsory schools in England, voluntaryism as a political creed was revived during the 1880s by another Englishman, Auberon Herbert (1838-1906). Herbert served a two-year term in the House of Commons, but after meeting Herbert Spencer in 1874, decided not to run for re-election. He wrote “State Education: A Help or Hindrance?” in 1880, and began using the word “voluntaryist” to label his advocacy of “voluntary” taxation. He began publishing his journal, THE FREE LIFE (Organ of Voluntary Taxation and the Voluntary State) in 1890. Herbert was not a pure voluntaryist because, although he held that it was possible for state revenues to be generated by offering competitive services on the free market, he continued to advocate a single monopolistic state for every given geographic territory. Some of his essays are titled “The Principles of Voluntaryism and Free Life” (1897), and “A Plea for Voluntaryism,” (posthumously, 1908).

Earlier and Contemporary Usage in America

Although there was never an explicit “voluntaryist” movement in America till the late 20th Century, earlier Americans did agitate for the disestablishment of government-supported churches in several of the original thirteen States. These conscientious objectors believed mere birth in a given geographic area did not mean that one consented to membership or automatically wished to support a State church. Their objection to taxation in support of the church was two-fold: taxation not only gave the State some right of control over the church; it also represented a way of coercing the non-member or the unbeliever into supporting the church. In New England, where both Massachusetts and Connecticut started out with state churches, many people believed that they needed to pay a tax for the general support of religion – for the same reasons they paid taxes to maintain the roads and the courts. It was simply inconceivable to many of them that society could long exist without state support of religion. Practically no one comprehended the idea that although governmentally-supplied goods and services (such as roads, or schools, or churches) might be essential to human welfare, it was not necessary that they be provided by the government.

There were at least two well-known Americans who espoused voluntaryist causes during the mid-19th Century. Henry David Thoreau’s (1817-1862) first brush with the law in his home state of Massachusetts came in 1838, when he turned twenty-one. The State demanded that he pay the one dollar ministerial tax, in support of a clergyman, “whose preaching my father attended but never I myself.” [6] When Thoreau refused to pay the tax, it was probably paid by one of his aunts. In order to avoid the ministerial tax in the future, Thoreau had to sign an affidavit attesting he was not a member of the church.

Thoreau’s famous overnight imprisonment for his failure to pay another municipal tax, the poll tax, to the town of Concord was recorded in his essay, “Resistance to Civil Government,” first published in 1849. It is often referred to as “On the Duty of Civil Disobedience,” because in it he recognized that government was dependent on the cooperation of its citizens. While he was not a thoroughly consistent voluntaryist, he did write that he wished never to “rely on the protection of the State,” and that he refused to tender it his allegiance so long as it supported slavery. He distinguished himself from “those who call[ed] themselves no-government men”: “I ask for, not at once no government, but at once a better government,” conveniently overlooking the fact that improving an institution does not change its essential (in this case, coercive) nature. Despite this, Thoreau opened his essay by stating his belief that “That government is best which governs not at all,” a point which all voluntaryists heartily embrace. [7]

One of those “no-government men” was William Lloyd Garrison (1805-1879), famous abolitionist and publisher of THE LIBERATOR. Nearly all abolitionists identified with the self-ownership principle, that each person – as an individual – owned and should control his or her own mind and body free of outside coercive interference. The abolitionist called for the immediate and unconditional cessation of slavery because they saw slavery as man-stealing in its most direct and worst form. Slavery reflected the theft of a person’s self-ownership rights (just as taxes reflect the theft of a person’s property). The slave was a chattel with no rights of his own. The abolitionists realized that each human being, man, woman, and child, was naturally invested with sovereignty over him or her self and that no one could exercise forcible control over another without breaching the self-ownership principle. Garrison, too, was not a pure voluntaryist for he supported the federal government’s war against the States from 1861 to 1865.

Probably the most consistent voluntaryist of that era was Charles Lane (1800-1870). He was friendly with Amos Bronson Alcott, Ralph Waldo Emerson, and Thoreau. Between January and June 1843 a series of nine letters he penned were published in such abolitionist’s papers as THE LIBERATOR and THE HERALD OF FREEDOM. The title under which they were published was “A Voluntary Political Government,” and in them Lane described the State in terms of institutionalized violence and referred to its “club law, its mere brigand right of a strong arm, [supported] by guns and bayonets.” He saw the coercive State on par with “forced” Christianity. “Everyone can see that the church is wrong when it comes to men with the Bible in one hand, and the sword in the other.” “Is it not equally diabolical for the State to do so?” Lane believed that governmental rule was only tolerated by public opinion because the fact was not yet recognized that all the true purposes of the State could be carried out on the voluntary principle, just as churches could be sustained voluntarily. Reliance on the voluntary principle could only come about through “kind, orderly, and moral means” that were consistent with the totally voluntary society he was advocating. “Let us have a voluntary State as well as a voluntary Church, and we may possibly then have some claim to the appeallation of free men.” [8]

Late 20th and early 21st Century libertarians readily appreciate the parallel between the disestablishment of State churches and the abandonment of the State itself. Although the label “voluntaryist” practically died out after the death of Auberon Herbert, its use was renewed in late 1982, when George Smith, Wendy McElroy, and Carl Watner began publishing THE VOLUNTARYIST. George Smith suggested use of the term to identify those libertarians who believed that political action and political parties (especially the Libertarian Party) were antithetical to their ideas. In their “Statement of Purpose” in NEITHER BULLETS NOR BALLOTS: Essays on Voluntaryism (1983), Watner, Smith, and McElroy explained that voluntaryists were advocates of non-political strategies to achieve a free society. They rejected electoral politics “in theory and practice as incompatible with libertarian goals,” and explained that political methods invariably strengthen the legitimacy of coercive governments. In concluding their “Statement of Purpose” they wrote: “Voluntaryists seek instead to delegitimize the State through education, and we advocate the withdrawal of the cooperation and tacit consent on which state power ultimately depends.”

THE VOLUNTARYIST newsletter, which began publication in late 1982, is one of the longest-lived libertarian publications in the world. Edited and published by Carl Watner since 1986, the most significant articles from the first 100 issues were anthologized in book-length form and published as I MUST SPEAK OUT: The Best of THE VOLUNTARYIST 1982-1999 (Carl Watner, ed., San Francisco: Fox & Wilkes, 1999).

Another voluntaryist anthology buttressed the case for non-voting: Carl Watner with Wendy McElroy (eds.), DISSENTING ELECTORATE: Those Who Refuse to Vote and the Legitimacy of Their Opposition (Jefferson: McFarland and Company, 2001). The masthead of THE VOLUNTARYIST, perhaps, best epitomizes the voluntaryist outlook: “If one takes care of the means, the end will take care of itself.” This statement penned by Gandhi emphasizes that the world can only be changed one person at a time, and then, only if that person wills it. The only thing that the individual can do “is present society with ‘one improved unit’.” As Albert Jay Nock put it, “[A]ges of experience testify that the only way society can be improved is by the individualist method …, that is, the method of each ‘one’ doing his very best to improve ‘one’.” This is the quiet, peaceful, patient way of changing society because it concentrates on bettering the character of men and women as individuals. As the individual units change, the improvement of society will take care of itself. In other words, “if one take care of the means, the end will take care of itself.” [9]

Objections to Voluntaryism

Introductory and General Observations:

Voluntaryists meet objections to their doctrine by examining them from both the moral and practical viewpoint. From the moral side, they ask whose property is involved, has anyone’s consent been obtained, is any property being used against the owner’s will? From the practical side, they ask how would the situation be handled in a statist society, how is it being handled now, how might it be addressed in the absence of government intervention? Voluntaryists also realize that some social ills will always be with us. Nonetheless they ask, of the two ways to organize human society, voluntarily versus coercively, which system is likely to produce less harm, be most beneficial to people, and be more consistent with our commonly accepted ethical norms?

Voluntaryists recognize that normally the most moral behavior achieves the most practical results. In certain emergency or “life boat” situations there may be a tension between what appears to be the moral and the practical. In such cases, some voluntaryists may choose to act contrary to their principles, while others may remain true to them and suffer the consequences. However, in both cases voluntaryists continue to recognize that self-ownership, homesteading, and non-aggression are the basis of their doctrine, and “that human freedom is a higher moral objective than the arbitrary fulfillment of certain people’s needs and desires.” [10]

Objection 1: What would happen to the poor in a voluntaryist world?

The plight of the poor in a free society focuses on many of the major objections to voluntaryism. From the practical side, who would care for them? (Any one who wants to devote their time, energy, and resources to them.) Would they be left to starve? (Yes, they might be if there was no one willing to help them.) What ultimately is our responsibility toward our fellow man, whether he be better off or worse off than others? (Strict justice consists in not acting invasively toward others.) Do the poor have a right to alms? (No, according to the homesteading axiom the rightfully owned property of others is to be respected, not stolen.)

The Moral Perspective

The first fact we must recognize is that nature is niggardly and that goods and services of value are scarce. Left alone on an island, how does a man care for himself? Man only survives by using his mind and body to provide himself with food, shelter, and clothing. The presence of other men makes the division of labor and specialization in production possible, but it does not essentially change the nature of the world. When man lives alone on an island, and when there is no interaction with others, the question of justice does not arise.

However, in the context of human society, justice, for the voluntaryist, is a negative duty. It consists in respecting other people’s bodies and property, and in doing them no physical harm. For the voluntaryist, justice does not imply any special obligation of benevolence or charity. Nothing is due a man in strict justice but what is his own. Perhaps he may have an ethical duty towards helping others; either their merits or their sufferings may reasonably lead them to expect something from others which is not strictly their own. As Lysander Spooner pointed out, “Man, no doubt, owes many other … duties to his fellow men; such as to feed the hungry, clothe the naked, … . But these are simply … duties, of which each man must be his own judge, in each particular case, as to whether, and how, and how far, he can, or will, perform them.” [11]

As for considering the justice of forced charity, Robert Ringer explained, “I do not believe that I or any other person has the right to force other men to be charitable. In other words, I am not against charity, but I am against the use of force.” [12] The fact that someone thinks others are not contributing enough to charity or to the poor is no justification for forcing them to contribute more. If a man has legitimately earned his property, it is theft to take it from him against his will for any purpose. One man’s honestly earned wealth is not another man’s entitlement (nor the cause of another’s impoverishment). We might not like one person being rich and another being poor, but it is not our right to take from one and give to another. If we think the poor are too poor, then we may devote more of our own resources and property to them, and we also may try to persuade others to do so. What we may not do is place someone in jail because he refuses to abide by our dictates in the matter; we may not pass a law that, in effect, does the same thing; and we may not use the plight of the poor as a justification for stealing the property of others, even if, after the fact, we give the stolen property to the poor.

The Practical Perspective

Americans have often been referred to as the most generous people on earth. Although there has never been a true voluntaryist society, America, from its colonial roots to the early 20th Century, more closely approximated voluntaryist parameters than many other nations. What did we find happening in such circumstances?

In early America, private and community care for the poor often preceded government’s assumption of those responsibilities. If Americans wanted a school, a library, an orphanage, or a hospital they simply built it for themselves. The vitality and success of American communities rested on their voluntary nature. History and theory demonstrate that a free people produce many more goods and services than their counterparts in a centrally organized economy. Thus, there is more to go around in a free society, and the poor generally have a higher standard of living than the poor in a collectivist society. This economic largess is largely the result of the investment in tools and individual savings which are promoted by the free market economy.

Not only were there probably fewer “poor” in America, but those of the lower classes were able to better care for themselves and their poorer kin. Until the advent of State welfare in the early 20th Century, mutual aid societies, church, and fraternal organizations flourished. By 1920, about 18 million Americans belonged to some type of mutual aid society or fraternal order, which often provided some form of health, disability, and death benefits to their members. With the advent of the Great Depression (which voluntaryists assert was caused by government financial policies), government welfare programs began crowding out private efforts.

The private sector in America has not only proved itself capable of producing and creating large amounts of wealth, but it has also demonstrated its willingness to contribute to community causes and helping the poor. The record of American philanthropy is so impressive that it would require several books to list its achievements. So when one asks, “What would happen to the poor in a free society?” one only has to look at American history for an answer. As James Bryce writing in 1888 observed, “In works of active beneficence, no country has surpassed, perhaps none has equaled the United States.” [13]

Objection 2: The voluntaryist insight points out that the State depends on the cooperation of its citizens. Aren’t these citizens showing by their actions that they are consenting to the government they have?

Answer: Yes, citizens may obey their governments, but they are no more consenting to their “voluntary” enslavement than a victim of a robbery consents to his victimization. The victim of a robbery (your money or your life) “voluntarily” hands over his wallet to prevent a worse occurrence (his own death). When governments eliminate criminal penalties for failure to file and pay taxes, we can begin looking at how much real support governments might obtain voluntarily.

Objection 3: If there were no government, what would prevent criminals from taking over control of society?

Answer: First of all, voluntaryists would point out that criminals have taken over control of our society. It is only the fact that our criminal governors have so legitimated themselves in the eyes of most people that they are no longer considered criminal.

The existence of a peaceful society depends upon the fact that the large majority of people residing therein respect other people and their property. In the absence of coercive government to “protect” these peaceful people, there would be private defense and mutual protection agencies, voluntarily funded, to protect people from would-be aggressors. Each patron would contract for the level of protection he or she desired and could afford. In such a society, sureties and insurance companies would probably provide a great deal of protection, since they would have the most to lose from destruction and theft of property and life. Sureties or bonding companies would ultimately be responsible for the good behavior of those they covered.

Objection 4: Who would pay for the roads?

Answer: Those who use them and require their existence. Although roads have been a government monopoly throughout much of history, there is much historical evidence that roads could built and operated on a for-profit basis. Government monopolization and control of the roads has led to many inefficiencies, deaths, and environmental destruction. [14]

Objection 5: Is it right that voluntaryists benefit from government services and yet do not wish to pay for them?

Answer: Voluntaryists recognize that there is no such thing as a free lunch. They are not asking for government services in the first place. Governments by their coercive provision of certain services eliminates the voluntaryist’s range of choice among providers. The voluntaryist may need to know “what time it is,” but that doesn’t mean that the government has a right to eliminate all competitors and force the consumer to purchase from only a government agency. If a thief steals your watch, outlaws all other forms of telling time, tells you the time, and then demands that you pay him for providing you with this service, would you consider yourself obligated to pay him? Of course not. Similarly, the voluntaryist holds that the government should not be providing any services in the first place (any more than the thief should have stolen your watch or outlawed would-be competitors). When government uses coercion to enforce its will, many problematic situations arise. Voluntaryists try to resolve them by abandoning government, and using private services when available and affordable.

Footnotes

[1] Murray Rothbard, “Yes,” REASON Magazine, May 1973, pp. 19, 23-25, and reprinted in Carl Watner (ed.), I MUST SPEAK OUT, San Francisco: Fox & Wilkes (1999), pp. 47-48.

[2] G. E. Aylmer (ed.), THE LEVELLERS IN THE ENGLISH REVOLUTION, Ithaca: Cornell University Press (1975), p. 68.

[3] ibid., p. 80.

[4] ibid., p. 68.

[5] George H. Smith, “Nineteenth-Century Opponents of State Education,” in Robert B. Everhart (ed.), THE PUBLIC SCHOOL MONOPOLY, Cambridge: Ballinger Publishing (1982), pp. 109-144 at pp. 121-124.

[6] Henry David Thoreau, WALDEN, OR LIFE IN THE WOODS and ON THE DUTY OF CIVIL DISOBEDIENCE, with an Afterword by Perry Miller, New York: New American Library (Twenty-first printing, 1960), p. 233.

[7] ibid., pp. 222, 223, 232.

[8] Carl Watner (ed.), A VOLUNTARY POLITICAL GOVERNMENT: LETTERS FROM CHARLES LANE, St. Paul: Michael E. Coughlin, Publisher (1982), p. 52.

[9] Albert Jay Nock, MEMOIRS OF A SUPERFLUOUS MAN, New York: Harper and Brothers (1943), p. 307.

[10] Robert Ringer, RESTORING THE AMERICAN DREAM, New York: QED (1979), p. 135.

[11] Lysander Spooner, NATURAL LAW; OR THE SCIENCE OF JUSTICE (Section I), Boston: A. Williams & Co. (1882), p. 6 in Volume I, Charles Shively (ed.), THE COLLECTED WORKS OF LYSANDER SPOONER IN SIX VOLUMES, Weston: M & S Press (1971).

[12] Ringer, op. cit., p. 134.

[13] James Bryce, Volume II, THE AMERICAN COMMONWEALTH (original publication date 1888), New York: G. P. Putnam’s Sons (1959), p. 494. (This is found in the Capricorn Books edition, edited by Louis M. Hacker in Volume II, Part VI, Chapter 4, “The Influence of Religion,” paragraph 15.) Also see Carl Watner, “The Most Generous Nation on Earth: Voluntaryism and American Philanthropy,” Whole Number 61, THE VOLUNTARYIST (April 1993).

[14] See Gabriel Roth (ed.), STREET SMART: COMPETITION, ENTREPRENEURSHIP, AND THE FUTURE OF ROADS, New Brunswick: Transaction Publishers, 2006 on both a discussion of for-profit roads and government inefficiencies in this area.

Other References

Etienne de la Boetie, THE POLITICS OF OBEDIENCE, New York: Free Life Press (1975) and Montreal: Black Rose Books (2007).

Brian Doherty, RADICALS FOR CAPITALISM: A Freewheeling History of the Modern American Libertarian Movement, New York: Public Affairs (2007).

Robert LeFevre, THE FUNDAMENTALS OF LIBERTY, Santa Anna: Rampart Institute (1988).

Eric Mack (ed.), THE RIGHT AND WRONG OF COMPULSION BY THE STATE AND OTHER ESSAYS BY AUBERON HERBERT, Indianapolis: Liberty Classics (1978).

Jim Payne (Count Nef), PRINCESS NAVINA VISITS VOLUNTARIA, Sandpoint: Lytton Publishing (2002).

Murray Rothbard, FOR A NEW LIBERTY, New York: The Macmillan Company (1973).

Mark Spangler (ed.), CLICHES OF POLITICS, Irvington-on-Hudson: Foundation for Economic Education (1996). Earlier editions were titled “Cliches of Socialism.” This anthology dispels many of the myths that justify the pleas for political solutions to our social problems.

Carl Watner with Wendy McElroy (eds.), NATIONAL IDENTIFICATION SYSTEMS: ESSAYS IN OPPOSITION, Jefferson: McFarland & Company (2004).

External Links

www.voluntaryist.com

by John Hasnas

[Excerpts from Roderick Long and Tibor Machan (eds.), ANARCHISM/MINARCHISM (Aldershot: Ashgate Publishing, 2008); ISBN 0 7564 6066. Found at http://faculty.msb.edu/hasnasj/GTWebsite/AnarchyDraft.pdf. Permission granted by Lilly Chesterman of Ashgate Publishing in email dated September 12, 2007. For other penetrating articles by John Hasnas see the Short Bibliography below.]

LOOK AROUND!

by Carl Watner

Lector, si documentum requiris, circumspice

Sir Christopher Wren, the famous English architect, died in 1723, and was buried in St. Paul’s Cathedral in London, a building which he had designed. His son, Christopher Jr., memorialized his father by placing on a wall near his father’s tomb, “one of the most famous of all monumental inscriptions:Lector, si monumentum requiris, circumspice (‘Reader, if you seek a monument, look around’).”

John Hasnas has done the same thing. He writes that “A wise man once told me that the best way to prove something is possible is to show that it exists.” Well? If proof (documentum) is required, LOOK AROUND! There are countless examples of voluntaryism in everyday life and in American history. We know that “a stable, successful society without government can exist” because it “has, and to a large extent, still does” exist. This, in fact, is one of the ongoing purposes of The Voluntaryist and my anthology, I MUST SPEAK OUT: to document the historical instances of non-political cooperation among human beings.

The State cannot be everywhere, nor can it be all things to all people, and as John Hasnas points out there had to be a peaceful community before there was a State. As I have written before, every service provided by the State and paid for by compulsory taxation (with one major exception – world war) has been provided at one time or another in history by people. Private schools, private coins, private libraries, private charitable aid,private roads, private post offices, private arbitration and mediation, private courts, time zones, weight and measure standards, our English language – all these are examples of voluntaryism, not statism.

In an article footnoted in “The Obviousness of Anarchy,” Professor Hasnas writes that “Anglo-Saxon and early Norman England … offers a wonderful test case of how human beings behave in the absence of central political authority.” [pp. 127-128]  The result was the English system of common law, on which most of English and American jurisprudence depends. The evolution of the common law demonstrates human beings need rules and regulations to govern their interactions; but it also proves that centralized government authority is not a prerequisite to their existence. Most of the formal and informal institutional arrangements of human society reached their zenith before the advent of modern nation-State.

This brilliant and magnificent essay directs our attention to what should be an obvious fact. Readers: LOOK AROUND! The evidence to prove that anarchism is a viable, sustainable way of life exists, if we can only recognize it.

The Obviousness of Anarchy

I am presenting an argument for anarchy in the true sense of the term – that is, a society without government, not a society without governance. There is no such thing as a society without governance. A society with no mechanism for bringing order to human existence is oxymoronic; it is not “society” at all.

I am arguing only that human beings can live together successfully and prosper in the absence of a centralized coercive authority.

There are, of course, certain rules that must apply to all people; those that provide the basic conditions that make cooperative behavior possible. Thus, rules prohibiting murder, assault, theft, and other forms of coercion must be equally binding on all members of a society. But we hardly need government to ensure that this is the case. These rules evolve first in any community; you would not even have a community if this were not the case.

Societies do not spring into existence complete with government police forces. Once a group of people has figured out how to reduce the level of interpersonal violence sufficiently to allow them to live together, entities that are recognizable as government often develop and take over the policing function. Even a marauding band that imposes government on others through conquest must have first reduced internal strife sufficiently to allow it to organize itself for effective military operations. Both historically and logically, it is always peaceful coexistence first, government services second. If civil society is impossible without government police, then there are no civil societies.

When government begins providing services formerly provided non-politically, people soon forget that the services were ever provided non-politically and assume that only government can provide them. … Traditionally, police services were not provided by government and, to a large extent, they still are not. Therefore, government is not necessary to provide police services.

If a visitor from Mars were asked to identify the least effective method for securing individuals’ persons and property, he might well respond that it would be to select one group of people, give them guns, require all members of soceity to pay them regardless of the quality of service they render, and invest them with discretion to employ resources and determine law enforcement priorities however they see fit subject only to the whim of their political paymasters. If asked why he thought that, he might simply point to the Los Angeles or New Orleans or any other big city police department. Are government police really necessary for a peaceful, secure society? Look around. Could a non-political, non-monopolistic system of supplying police services really do worse than its government-supplied counterpart?

Do you ever wonder why people believed in the divine right of kings? They believed in it because they were taught to believe in it and because they could imagine it was so, regardless of all evidence to the contrary. We no longer believe in such silly things as the divine right of kings. We believe that government is necessary for an orderly peaceful society and that it can be made to function according to the rule of law. We believe this because we have been taught to believe it from infancy and because we can imagine that it is so, regardless of all contrary evidence.

One should never underestimate the power of abstract concepts to shape how human beings see the world. Once one accepts the idea that government is necessary for peace and order and that it can function objectively, one’s imagination will allow one to see the hand of government wherever there is law, police, and courts and render the non-political provision of these services invisible. But if you lay aside this conceptual framework long enough to ask where these services originated and where, to a large extent, they still come from, the world assumes a different aspect. If you want the strongest argument for anarchy, simply remove your self-imposed blinders and look around.

Short Bibliography

“Toward a Theory of Empirical Natural Rights,” 22 SOCIAL PHILOSOPHY AND POLICY (2005), pp. 111-147.

“The Myth of the Rule of Law,” 1995 WISCONSIN LAW REVIEW (1995), pp. 199-233. Reprinted in THE VOLUNTARYIST, Whole Number 97 (April 1999), and Whole Number 98 (June 1999).

“The Loneliness of the Long-Time Libertarian,” John relates the story of how he became a libertarian at age ten. This article may also be accessed through “Links” at John Hasnas’s Home Page.

By Harold Barclay

After my book, CULTURE: THE HUMAN WAY (1982), I prepared another which I entitled PEOPLE WITHOUT GOVERNMENT: AN ANTHROPOLOGY OF ANARCHY. Here I briefly described some of the numerous different societies around the world which thrive without any state or government. It was an attempt to demonstrate that anarchy was neither chaos nor an utterly utopian dream. I pointed out that in one respect–that is, the absence of government–all humans were anarchists ten thousand years ago. Anarchy has, it seems, worked in small face-to-face communities, although some ethnic groups such as the Nuer or Dinka numbering hundreds of thousands have maintained anarchic type polities. Where it really requires testing is in the context of concentrated and large populations. The book did not stress the absence of anarchy in urban, modern style societies. The only example of anarchy in a modern society is during a short period in the Spanish Civil War when anarchists did organize an urban society, but, unfortunately, it suffered under war conditions and was soon ended by the combined efforts of the Communists and Fascists. I later discussed the problem of “Anarchism and Cities” in a book, CULTURE AND ANARCHISM.

I would not agree with those who say that the examples of anarchy among the small scale societies that I described in PEOPLE WITHOUT GOVERNMENT have no relevance to modern industrially oriented and heavily populated communities. The very idea of the face-to-face interaction characteristic of small groups is directly applicable and of major importance to the functioning of large scale societies. The greatest solidarity, personal satisfaction, and dedication to the group is maintained by the direct and equal participation in decision making regarding the substantial issues confronting any community. The Tonga of southern Africa provide yet another example. They are a matrilineal society of several hundred thousand people who were primarily gardeners. They had no centralized political system and were an anarchic society in which each individual was obligated to several different cross cutting groups, which in turn were part of a network of further obligations so that any negative action against an individual or group resulting from one set of relationships had its counter restraining effect resulting from affiliation with other groups and individuals. One’s obligation to the network of groups to which he was a member acted as a device to maintain mutual aid and social control. No chiefs or police acted to impose and force “proper” behavior.

A characteristic of functioning anarchic societies is the technique for conflict resolution where the aim is primarily directed at reestablishing or maintaining group harmony rather than seeking to determine guilt and impose vengeance motivated punishment. Thus, in a conflict between groups an independent, uninvolved mediator agreed upon by both parties is chosen to consider the matter. Before proceeding, however, he will require the opposing parties to agree to his decision and he will then first attempt to bring a compromise agreement between them. Failing this he will decide the case. He is a mediator, not an arbitrator, meaning that he has no police power to enforce his decision. Agreeing to his decision is considered a moral obligation on the part of those involved. Another not dissimilar technique for dealing with conflict and wrong doing is provided by the traditional practice of some American Indian groups in their healing circles. I would highly recommend Rupert Ross, RETURNING TO THE TEACHINGS, EXPLORING ABORIGINAL JUSTICE (1996, Penguin Books) for details on this approach.

In anarchic polities as well one important feature concerning conflict is psychological. That is, in several such societies considerable emphasis is placed on anger control. It is imperative to restrain one’s temper. In addition it is to be noted that the greatest number of casualties and worst kind of human conflict is warfare which is carried to its supreme climax by the state. During the twentieth century over one hundred million people lost their lives as a consequence of wars conducted by the several nation states. Stateless or governmentless societies lack the means and the motivation for conducting such mass killing.

Consensus is the primary mode for making decisions in an anarchic society. Matters of major policy require unanimity of consent or acquiescence – a sense of the meeting. Strongly dissenting factions are permitted to withdraw from the larger group. Thus, every effort is made to protect “minority” rights without jeopardizing those of the majority. Obviously, in a highly heterogeneous population such consensus would be difficult or impossible to achieve. Some have therefore suggested that consensus be reserved for matters of general principle while practical application could be dealt with by majority vote while still reserving the right of withdrawal.

As I have observed earlier in this essay in an anarchic society there is a heavy emphasis upon personal responsibility. One does not have access to the state among other things to provision the group. Today in the modern state an individual spends 30-40% of his working hours to support, in the form of taxes, governments which proceed to spend these funds on large military establishments, top heavy bureaucracies, ludicrous frills for state administrators, bribery and corruption. In an anarchist society one would direct his energies to participating in the management of cooperative enterprises dedicated to the maintenance of the community. Productive enterprise, whether industrial or agricultural, would be administered by those responsible for it–that is, those who produce the goods. Necessary activities such as fire protection, road maintenance, water supply, medical attention or what have you would be matters of group responsibility. The several enterprises would be federated with other similar groups to provide regional oversight and service. Power would be retained at the local level and would be minimal at the upper confederated level.

In most of the simpler societies property as individually owned material things are generally limited to movable items. Communal ownership of land, the chief resource, is the ordinary practice. There are many anarchists who advocate communal ownership of all land, industrial capital, and natural resources which raises a serious question of how this is to be achieved. Perhaps anarchists are not adhering to their principles if they seek to expropriate all land, industry and resources by compelling on the threat of violence a minority to submit and surrender what they see as their wealth. At the same time it might be possible to achieve such a goal if the community at large were to ostracize those who did not conform. I should prefer to see an arrangement which allows for both individual and communal ownership but where no one exploits others. That is, individual ownership would therefore be limited to small businesses employing only owner operators or partners.

… There are a couple of other points … concerning the anarchist society which should be mentioned. First, a point I have made before but deserves repetition: the ground work for any such society must be laid in the education of the youth and the radical reeducation of the mass of adults all in the direction of an emphasis upon mutual aid, cooperation, personal responsibility and techniques of peace. Given the propensities and training of most people today any large scale anarchist society would never work. Particularly important is the need to develop a devotion to non-violence for there can be nothing more socially disruptive than violence and this is especially true of anarchic polities. Secondly, at least a quasi-anarchist way of life can be pursued within the existing system. One may ignore and avoid government and the state as much as possible. One may join with others in cooperative societies for all sorts of purposes; mutual aid amongst neighbors can all be developed within the existing order. The Amish and Hutterites, for example, thrive through all their lives within a large society of outsiders and maintain their own local community managed mutual aid system which has little or no dependence on outsiders [or] the state. Perhaps, as Gustav Landauer observed, if enough people avoided the state and looked to other social relationships, the state itself might be undermined.

[Excerpted with permission of Harold Barclay, email of August 20, 2005. From LONGING FOR ACADIA: Memoirs of an Anarcho-Cynicalist Anthropolgist, Victoria: Trafford, 2005, pp. 265-272. Call 1-888-232-444 or email orders@trafford.com for more information about this book.]

By George H. Smith

I.

Somewhere, sometime a person will open this book not knowing what to expect, but curious about a man with the curious name of Lysander Spooner. I envy that reader, for that was me nearly twenty-five years ago when I encountered No Treason: The Constitution of No Authority. I could scarcely believe my eyes. Here were ideas radical yet commonsensical, subversive yet quintessentially American. Spooner challenged and excited me. Such experiences are rare because truly original thinkers are rare, and you can discover them but once.

Alas, my days of innocent discovery are over, the casualty of too much reading. I have read libertarian writers so obscure that even obscure libertarians have never heard of them. I doubt if my future holds many surprises, but it does hold many pleasures. This is one of them: introducing others to Lysander Spooner.

Lysander Spooner (1808-1887) was one of the greatest libertarian theorists of the nineteenth (or any other) century and a founding father of the modem movement. He was radical to the bone, a nonconformist among nonconformists who refused to toe any party line.

Trained as a lawyer, Spooner often wrote like a lawyer, citing precedents, statutes, and legal authorities. This legalistic style enshrouds some of his works with a dry, forbidding appearance. But huddled among his legal arguments are passages of literary and philosophic brilliance.

Spooner was no ordinary lawyer. He cited the Constitution when he believed it conformed with natural law; this led him to assert the unconstitutionality of chartered banks, a monopolistic post office, legal tender laws, slavery, and other offenses against liberty. In the final analysis, however, Spooner condemned the Constitution as possessing “no authority,” and this distinguished him from many radicals of his day. espoused individualist- anarchism (in substance if not in name), a radical no-government philosophy with roots deep in American history–Native American Anarchism, as Eunice Schuster has called it.[1]

For Spooner, natural law and its corollary, natural rights, are the foundation of a free and just society. He was an unterrified Jeffersonian who refused to compromise the principles expressed in the Declaration of Independence. If man is endowed with inalienable rights, then no one, including government, should violate them. If government requires the consent of the governed, then a legitimate government must acquire the explicit consent of every person in its jurisdiction. If the people have a right to resist usurpations and the right to overthrow tyrannical governments, then these rights may be enforced against the American government.

If such principles make it difficult for governments to function, then, as Spooner saw the matter, so much the better. Government is a standing threat to liberty, peace, prosperity, and social order.

Spooner’s contempt for government was rivaled only by his contempt for fellow libertarians who compromised their principles under cover of expediency. Pure justice is a thing of beauty, and Spooner could not abide those who knowingly defaced it. Where others saw expediency, Spooner saw only cowardice or betrayal or ambition masquerading as practicality.

II.

Lysander Spooner, the second of nine children, was born in 1808 on a farm near Athol, Massachusetts. Spooner discharged his financial obligations to his father by working on a farm for nine years; then, at age twenty-five, he moved to nearby Worcester to prepare for a career in law.[2]

In 1835, Spooner set up his own legal practice, thereby violating a Massachusetts law that required a five year apprenticeship for prospective lawyers without college degrees. In his first political tract (appearing in the Worcester Republican), Spooner protested the apprenticeship law and expressed a disdain for governmental intervention that would characterize his entire career.

According to Spooner, the five-year apprenticeship law was meant to exclude “the well-educated poor” from the legal profession and shield those “educated in comparative ease and plenty” (many of whom “are unfit for the profession”) from the effects of competition. Spooner continues:

The truth is that legislatures and Courts have made lawyers a privileged class, and have thus given them facilities, of which they have availed themselves, for entering into combinations hostile, at least to the interests, if not to the rights, of the community–such as to keep up prices, and shut out competitors.[3]

A person who wishes to be a lawyer has as much right to earn his living by this means as by any other. His competence should concern only “the lawyer himself and his clients”; the government cannot legislate competence, nor should it try.

A free-market legal system, Spooner contends, would break up the cliquish legal fraternity and provide better protection against malpractice. Here as elsewhere Spooner was ahead of his time:

If the profession were thrown open to all, this combination of lawyers would doubtless be broken up–they, like other men, would hold themselves severally responsible for their own characters alone–they would have no inducement to wink at or attempt to hide the malpractices of others–individuals, who should suppose themselves injured by the practice of an attorney, instead of laying his complaints before the Bar, would lay them before the grand jury, or some other tribunal–and . . . it is probable the community would sometimes fare the better for it.[4]

These remarks, written when Spooner was twenty-seven, display a bold free-market radicalism. But Spooner’s libertarianism was of one piece; it was economic and political. In the same article quoted above, Spooner protests the requirement that lawyers must swear allegiance to the Commonwealth and the Constitution. His remarks are as charming as they are incisive.

The right of rebelling against what I may think a bad government, is as much my right as it is of the other citizens of the Commonwealth, and there is no reason why lawyers should be singled out and deprived of this right. [I]t is nothing but tyranny to require of me an oath to support the constitution, as a condition of my being allowed the ordinary privilege for getting my living in the way I choose.[5]

Massachusetts law required a lawyer to inform the court if he knew of “an intention to commit a falsehood.” Again, Spooner cuts to the heart of the matter:

I do not choose to be made an informer in this manner, against men with whose matters I have nothing to do. That is not what a lawyer goes into Court for–he goes there to defend the rights and interests of his clients, and for nothing else–and he has a right so to do. . . .[6]

Scarcely any statute relating to the legal profession escaped Spooner €™s censorious gaze. For example, lawyers were required to contribute fifty dollars to the Law Library Association. Spooner was outraged. If he needed to use the law library, he was willing to pay for it–but what if a lawyer lived too far away to make use of it, or what if a lawyer owned his own books? Unless Spooner joined the Association or used its books, that organization had no more claim to his fifty dollars than €œ The Missionary or Bible Society.”

In 1836 Spooner left Worcester for the Ohio country to seek his fortune in land speculation, just in time to lose everything during the Panic of 1837. Spooner blamed the economic collapse on governmental regulation of banking and currency. In A New System of Paper Currency and other tracts, Spooner tried to show, in considerable detail, how a totally unregulated currency and banking system would work in a free market.[7]

In 1844, Spooner turned his attention to the government’s monopoly on mail delivery. He established the American Letter Mail Company, a private postal service that drastically undercut the government’s rate. Spooner defended his illegal action in a spirited pamphlet, The Unconstitutionality of the Laws of Congress Prohibiting Private Mails.

The Constitution (Art. 1, Sec. 8) declares that “The Congress shall have power to establish post-offices and post roads;” however, according to Spooner, this does not justify a government monopoly on mail delivery. Indeed, government agencies are typically concerned more with feathering their own nests than with providing efficient services. Quoting Spooner:

Universal experience attests that government establishments cannot keep pace with private enterprise in matters of business (and the transmission of letters is a mere matter of business). Private enterprise has always the most active physical powers, and the most ingenious mental ones. It is constantly increasing its speed, and simplifying and cheapening its operations. But government functionaries, secure in the enjoyment of warm nests, large salaries, official honors and power, and presidential smiles–all of which they are sure of so long as they are the partisans of the President–feel few quickening impulses to labor, and are altogether too independent and dignified personages to move at the speed that commercial interests require. They take office to enjoy its honors and emoluments, not to get their living by the sweat of their brows. They are too well satisfied with their own conditions, to trouble their heads with plans for improving the accustomed modes of doing the business of their departments–too wise in their own estimation, or too jealous of their assumed superiority, to adopt the suggestions of others–too cowardly to innovate–and too selfish to part with any of their power, or reform the abuses on which they thrive. The consequence is, as we now see, that when a cumbrous, clumsy, expensive and dilatory government system is once established, it is nearly impossible to modify or materially improve it. Opening the business to rivalry and free competition, is the only way to get rid of the nuisance.[8]

III.

Spooner noted that his entire family had been “ardent abolitionists for years,” and in 1845 he entered the fray with The Unconstitutionality of Slavery. This piece was warmly received by political abolitionists who, unlike William Lloyd Garrison and his allies, urged anti-slavery activists to vote and run for political office.

The esteem shown for Spooner by political abolitionists is reflected in this resolution passed by the Liberty party in 1849:

Whereas, Lysander Spooner, of Massachusetts, that man of honest heart and acute and profound intellect, has published a perfectly conclusive legal argument against the constitutionality of slavery;

Resolved, therefore, that we warmly recommend to the friends of of freedom, in this and other States, to supply, within the coming six months, each lawyer in their respective counties with a copy of said argument.[9]

Spooner’s role in abolitionism can be understood only by placing him in the broader context of the controversies that divided that volatile and fascinating movement.[10]

The dominant figure in abolitionism was William Lloyd Garrison, editor of The Liberator. Garrison firmly believed that the Constitution sanctions slavery, even though the words “slave” and “slavery” never appear in the document. Garrison’s position was strengthened in 1840, when James Madison’s record of the Constitutional Convention was published for the first time.[11]

Much that transpired during the Constitutional Convention remained hidden from Americans for fifty years, thereby permitting delegates to escape accountability through death. Madison’s detailed notes–suitably altered so as to understate his youthful nationalism–left no doubt about the place of slavery in the Constitution. It was sanctioned and protected as a means to bring the deep South into the union. This was especially apparent in three clauses: the provision that “all other persons € were to be counted as three-fifths when computing representation in the House (Art. I, sec. 2); the provision that Congress could not outlaw the slave trade until 1808 (Art. I, sec. 9); and the provision that required states to return runaway slaves to their masters (Art. IV, sec. 2).

Garrison’s position was clearly and colorfully stated in 1854, when abolitionists convened in Framingham, Massachusetts to protest the return of an escaped slave, Anthony Burns. During his speech, Garrison held up a copy of the Constitution and condemned it as “a covenant with death and an agreement from hell.” Then Garrison burned a copy of the Constitution while declaring, “So perish all compromises with tyranny!” Most of the audience responded with amens.[12]

Garrison’s view of the Constitution led him to oppose any political activity by abolitionists. His colleague Wendell Phillips defended this position in Can Abolitionists Vote or Take Office Under the United States Constitution? (1845).

Phillips notes that all officials, state and federal, are required to swear an oath “to support the Constitution of the United States”–and he maintains that no abolitionist can do so in good conscience, because the Constitution is a pro-slavery document. Nor should abolitionists vote, because voting delegates authority to an agent, and what “one does by his agent he does himself.” Phillips continues:

Of course no honest man will authorize and request another to do an act which he thinks it wrong to do himself. Every voter, therefore, is bound to see, before voting, whether he could himself honestly swear to support the constitution.[13]

In The Unconstitutionality of Slavery, Spooner sought to refute the Garrisonian critique of the Constitution and thereby open the door for political activity by abolitionists. Spooner was neither the first nor the last to try this, but his attempt was the most thorough and legally grounded. To establish the unconstitutionality of slavery, Spooner believed, was a necessary step in abolishing slavery. Even if the entire North became abolitionist, “they would still be unable to touch the chain of a single slave, so long as they should concede that slavery was constitutional.” Southern lawyers were noted for their strict and literal interpretation of the Constitution, so Spooner hoped to change their minds by meeting them on their own ground. He based his case on the rules of legal interpretation expounded by Sir William Blackstone and other authorities of Common Law.

According to Spooner, law, in its most basic sense, refers to natural law–“that natural, universal, impartial and inflexible principle, which, under all circumstances, necessarily fixes, determines, defines and governs the civil rights of men.” All men are endowed with equal rights to life, liberty, and property. This is “the paramount law”; indeed, strictly speaking, there can be “no law but natural law,” because no human enactments can overturn the provisions of natural justice. Legitimate governments must rest on consent; a social contract, and even that contract €œcannot lawfully authorize government to destroy or take from men their natural rights: for natural rights are inalienable, and can no more be surrendered to government–which is but an association of individuals–than to a single individual.” The only “legitimate and true object of government, € is to protect natural rights. Even a majority, however large, cannot agree to a contract (a constitution) that violates “the natural rights of any person or persons whatsoever.” Such a contract “is unlawful and void € and has “no moral sanction. €[14]

This argument from natural law renders slavery immoral and unjust, whatever the Constitution might say. But Spooner does not base his constitutional argument on this premise. In interpreting the Constitution, he insists only that “the ordinary legal rules of interpretation. € be observed. Natural right, in Spooner’s argument, functions as a presumption, a beacon to guide legal interpretations. The most important rule is that all language in the Constitution “must be construed ‘strictly’ in favor of natural right,” unless there is clear and convincing evidence to the contrary. Before we can interpret constitutional provision as contrary to natural right (i.e., as upholding slavery), the terms of that provision must be “express, explicit, distinct, unequivocal, and one to which no other meaning can be given. . . . [15]

While examining the slavery clauses of the Constitution, Spooner falls back on his basic rule of interpretation. Any apparent violation of natural right must be stated explicitly and not permit another, more libertarian interpretation. For example, the fugitive slave clause refers to persons €œheld to service or labor. € According to Spooner, this provision, if interpreted literally, refers to indentured servants, not to slaves. And so it goes with other slavery provisions of the Constitution.

Spooner was unmoved by the supposed intentions of the Constitution’s framers. The only relevant legal point is what the Constitution in fact authorizes in express language, not what its framers intended it to authorize. The Constitution never mentions slaves or slavery, so by strict rules of interpretation–indeed, by the same rules that most Southerners followed–the constitution cannot be viewed as pro-slavery.

IV.

The Unconstitutionality of Slavery was greatly admired by political abolitionists who–in opposition to William Lloyd Garrison and his followers–believed in the morality of voting and electoral politics. It is ironic, therefore, that Spooner refused to vote or join any political party, including the abolitionist Liberty party.

In a letter to his friend George Bradburn, Spooner indicated that his “theory of voting” did not allow him to support any political party, even one that was antislavery. Bradburn was annoyed. How could it be “that such notions are held by him, who wrote the ‘Unconstitutionality of Slavery”‘? Spooner replied:

I do not rely upon “political machinery” (although it may, or may not, do good, according as its objects are, or are not, legal and constitutional) . . . because the principle of it is wrong; for it admits . . . that under a constitution, the law depends on the will of majorities, for the time being, as indicated by the acts of the legislature.[16]

Spooner could not sanction the Constitution and the government it established. Although the Constitution is “a thousand times better . . . than it is generally understood to be,” it is so seriously flawed that “honest men who know its true character” should not sanction it.[17] Wendell Phillips was indeed correct when he charged that “Mr. Spooner’s idea is practical no-governmentalism.[18]

Thus, Spooner was neither a Garrisonian nor a political abolitionist. As Lewis Perry has observed, Spooner “was a maverick abolitionist who belonged to none of the familiar factions in the movement.”[19]

In A Defence for Fugitive Slaves (1850), Spooner presents an argument that he would later expand into one of his most famous works, An Essay on the Trial By Jury (reprinted in this volume). Americans who assisted runaway slaves were subject to prosecution under the Fugitive Slave Laws. Spooner regards these laws as unconstitutional and unjust; therefore, anyone prosecuted under them should be exonerated by the jury.

If an indictment be found, the jury who try that indictment, are judges of the law, as well as the fact. If they think the law unconstitutional, or even have any reasonable doubt of its constitutionality, they are bound to hold the defendants justified in resisting its execution.[20]

According to Spooner, a judge represents the government, where as a jury represents the people. And the people, speaking through a jury, have a right to assess laws as well as facts. Should a jury find a law unjust or unconstitutional, it should effectively nullify that law by refusing to convict the defendant.

In An Essay on the Trial By Jury, Spooner presents a good deal of historical material to support his case for jury nullification. Did early American law conform to Spooner’s view, as he claims? The distinguished legal historian Lawrence M. Friedman writes:

In American legal theory, jury power was enormous, and subject to few controls. There was a maxim of law that the jury was judge both of law and of fact in criminal cases. This idea was particularly strong in the first Revolutionary generation, when memories of royal justice were fresh. In some states the rule lasted a long time, and in Maryland, the slogan was actually imbedded in the constitution. But the rule came under savage attack from some judges and other authorities. . . . It . . . threatens the power of judges.[21]

V.

Jury nullification was not Spooner’s only strategy to weaken slavery. He also called for armed abolitionists to infiltrate the South, liberate slaves, and foment insurrections. After attaining their freedom, slaves were to receive restitution from the property of their former owners. These and other particulars are spelled out in A Plan for the Abolition of Slavery, a broadside published by Spooner in the summer of 1858. This broadside apparently influenced John Brown, who tried to implement Spooner’s plan in his abortive raid on Harper’s Ferry, Virginia.[22]

After Brown had been captured and sentenced to hang, Spooner hatched a plan to kidnap Governor Henry Wise of Virginia and hold him as hostage in exchange for Brown. This plan went nowhere, however, owing to lack of funds.[23]

Spooner was adamant in his belief that the right forcibly to resist unjust laws is inalienable. The constant fear of an uprising by the people is the only thing that keeps rulers from becoming tyrannical. As Spooner puts it:

The right and the physical power of the people to resist unjustice, are really the only securities that any people ever can have for their liberties. Practically no government knows any limit to its power but the endurance of the people. And our government is no exception to the rule. But that the people are stronger than the government, our representatives would do any thing but lay down their power at the end of two years. And so of the president and senate. Nothing but the strength of the people, and a knowledge that they will forcibly resist any very gross transgression of the authority granted to their representatives, deters these representatives from enriching themselves, and perpetuating their power, by plundering and enslaving the people.[24]

Spooner’s dissent from orthodox abolitionism is nowhere more apparent than in No Treason, perhaps his greatest work (and reprinted in this volume.) Nearly every abolitionist supported the North during the Civil War. This was true even of Garrison, a professed pacifist who had previously called for free states to secede from the Union. Garrison, who viewed the Civil War as a struggle between “free men and a desperate slave oligarchy,” wrote:

All my sympathies and wishes are with the [Northern] government, because it is entirely in the right, and acting strictly in self-defense and for self-preservation. This I can say, without any compromise of my peace-principles.[25]

Spooner attacks these common beliefs in No Treason, where he undertakes a remarkable and devastating analysis of the Constitution and its moral authority (it had none, according to Spooner). He clearly distinguishes the evil of slavery from the right of secession–a right that was embodied in the American Revolution.

[T]he whole Revolution turned upon, asserted, and, in theory, established, the right of each and every man, at his discretion, to release himself from the support of the government under which he lived. And this principle was asserted, not as a right peculiar to themselves, or to that time, or as applicable only to the government then existing; but as a natural right of all men, at all times, and under all circumstances.[26]

Spooner stood nearly alone among radical abolitionists in his defense of the right of the South to secede from the Union. Then, as if anticipating revisionist historians, he denies that the war had been fought over slavery. Rather, the war erupted “for a purely pecuniary consideration, to wit, a [Northern] control of the markets in the South; in other words, the privilege of holding the slave-holders themselves in industrial and commercial subjection to the manufacturers and merchants of the North (who afterwards furnished the money for the war.)”[27] Spooner’s extensive treatment of this theme is surely one of the most fascinating pieces of writing from the Civil era.

VI.

Spooner’s concern with civil liberties is manifested in Vices Are Not Crimes (reprinted in this volume), which originally appeared anonymously as a chapter in a book by Dio Lewis, Prohibition: A Failure (1875). The physician Lewis attributed the chapter to “a lawyer friend,” and not until Benjamin Tucker’s memoir of Spooner (Liberty, May 28, 1887) did the true author become known.

This is probably the only major piece not to be included in The Collected Works of Lysander Spooner. Vices Are Not Crimes owes its modern revival to Carl Watner, who unearthed it, and to Janice Allen, who published it (TANSTAAFL, 1977) for the first time in more than a century. Were it not for this joint labor of love, one of Spooner’s finest essays might have remained buried indefinitely between the covers of an obscure book.

Vices Are Not Crimes is as fresh as the day it was written, for it speaks directly to the current persecution of drug consumers, sexual nonconformists, and others who pursue their happiness in illegal ways. Indeed, most modern tracts on personal liberty pale in comparison to Spooner’s uncompromising and unapologetic defense.

According to Spooner, every mentally competent person over ten years of age–regardless of race, sex, religion, or personal proclivities–is equally possessed with natural rights, including the right to pursue happiness. A government should protect this right (assuming we take the Declaration of Independence seriously), but this is impossible if a government also tries to punish vice. A government can do one or the other but not both, any more than it can protect both liberty and slavery.

No one is morally perfect, so if a government were to punish all vices impartially, “everybody would be in prison for his or her vices, € leaving “no one left outside to lock the doors upon those within.” Only one possibility remains: a government might punish only select vices. But, Spooner contends, it is “utterly absurd, illogical, and tyrannical” for a group to punish the vices of others while demanding liberty for their own.

The violation of rights is the bright line by which Spooner separates vices from crimes. Crimes violate rights; vices do not. Vices may be self-destructive or offensive, but–like all peaceful, voluntary activities–they should remain outside the province of law and government. Such vices include “gluttony, drunkenness, prostitution, gambling, prize-fighting, tobacco-chewing, smoking, and snuffing, opium-eating, corset-wearing, idleness, waste of property, avarice, hypocrisy, &c., &c.” If practitioners of these and other vices cannot be reformed voluntarily, if they go “on to what other men call destruction,” then they “must be permitted to do so.”

The essence of Spooner’s argument runs deep in the individualist tradition. For example, two centuries before Spooner, John Locke had argued that a ruler should not try to stamp out sin. Why? Because sins as such “are not prejudicial to other men’s rights, nor do they break the public peace of societies.”

Spooner begins with rights but does not end there. Vices Are Not Crimes contains a wealth of insightful observations about the highly contextual nature of virtue and vice. Spooner shows great respect for the unique character and circumstances of each individual, and he studiously avoids that pretentious moralizing that so often mars works of this kind. People must make decisions in their quest for happiness, and some may choose better than others. But virtue and happiness cannot flourish unless a person is free “to inquire, investigate, reason, try experiments, judge, and ascertain for himself. . . .” Coerced virtue is a contradiction in terms.

VII.

The Civil War extinguished 620,000 lives and transformed the political culture of America. George Ticknor, writing in 1869, commented on the “great gulf between what happened before the war in our century and what has happened since or what is likely to happen hereafter. It does not seem to me as if I were living in the country in which I was born. €[28]

The language of rights, consent, and social contract-the vocabulary of Lysander Spooner–was no longer popular among Northern intellectuals, for this had been the language of treason and secession. The word “union” (which suggested a confederation of sovereign states) gave way to “nation”; and “The United Statesare” (the verb preferred by James Madison, among many others) became “The United States is. . . [29]

After the war, a speaker at William and Mary College declared: €œWe at the North, all learned that there was in our . . . Government a power of which we never divine, as being the great incarnation of a nation’s rights, privileges, honor and life.” According to the historian John Motley, “no individual is anything in the midst of this great revolution”; and, in the words of Walt Whitman, the war taught America that “a nation cannot be trifled with.[30]

Lysander Spooner no longer spoke the language of his countrymen, and he watched the power of government accelerate at an astonishing rate.[31] Spooner was swimming against the current of opinion, but he never gave up. His friend and colleague Benjamin Tucker gave him a fitting tribute:

He died at one o’clock in the afternoon of Saturday, May 14 [1887], in his little room at 109 Myrtle Street, surrounded by trunks and chests bursting with the books, manuscripts, and pamphlets which he had gathered about him in his active pamphleteer’s warfare over half a century long. . . . Some time or other the story of this glorious life of eighty years will be told in detail as it deserves.[32]

[From THE LYSANDER SPOONER READER, San Francisco: Fox & Wilkes, 1992, pp. vii-xix. Footnotes not included.]

by Jim Davies

[Editor’s Note: During early June 2006, one of my subscribers put me in touch with Jim Davies, author of The On Line Freedom Academy (TOLFA). TOLFA is a web-based series of study lessons devoted to expounding the free market. I was so impressed with Jim’s work that I asked him to write an article about his background and the events which led to the creation of TOLFA. The On Line Freedom Academy reminds me of Bob LeFevre’s Freedom School. Although there are some differences, its basic outlook is voluntaryist, and I highly recommend it to my readers. As Jim writes, if each one of us can convince one person that freedom works, both morally and practically, we will all be that much closer to achieving freedom in our lifetime.]

In June 2006, I launched “The On Line Freedom Academy” or TOLFA, at www.tolfa.us. It has the modest aim of changing the minds, over a period of a little over two decades, of 268 million literate Americans. It has the potential of changing our society from one where many decisions are made under compulsion, to one in which all decisions would be made voluntarily – that is, changing our society from a culture of force to one embracing voluntaryism.

It will do so one by one, with every graduate or “full member” bringing to the Academy from among his circle of friends at least one new student per year. Thus, membership doubles annually; since 268 million is 2 to the 28th power the job would take 28 years if there were nobody starting but me. In fact there are quite a lot more than me already, so the job will be complete within the decade of the 2020s. If on average members bring more than one new participant per year, we might even see that free society start during the decade of the 2010s.

One key underlying assumption is that people generally are open to reason, and that’s what Carl Watner has asked me to explore in this article. What, exactly, changes minds? – and more particularly, he asked me, what caused my own mind to change; what brought me to this point, of launching TOLFA? These questions are very good, because it may be that peoples’ positions are formed and fixed by meansother than reason – for example, by emotions such as fear. Politicians, certainly, are expert at playing on emotion and prejudice (pre-judgments.) Must we emulate those creeps? I, for one, hope not.

And I think not, too. Pols “fool most of the people, most of the time” by lies and appeals to emotion not just because those tricks do, alas, work – but also because if they resorted to reason they would have nothing to say. There are absolutely no votes generated by announcing “I am here to steal from you to pay to brainwash your neighbor’s children in my institutions.” It’s a real turn-off, when stated plainly, truthfully and reasonably. So instead he disguises the truth and speaks just of his noble and selfless wish to see “our children educated” and leaves unspoken all those pesky financial and moral details.

But we freedom-seekers do have reason on our side. When we think it through, we can see government for the fraud that it is. We can start with the undeniable premise of human self-ownership and reason through to the inescapable conclusion that government needs to be totally eliminated from human society – not just for the evil it does, but primarily for the evil that it is. That is where TOLFA leads its members, and that is our great strength. All we need is to know that minds are receptive to reason.

Mine was – eventually. Presumably, since you’re reading this, so was yours. Here’s what happened to me.

I was born in England, am fairly bright (for neither of which I can claim credit), rather shy (for which I accept no blame), and of parents with a good work ethic. That’s the hand life dealt me. It’s not a bad one, and I have been very fortunate. By age 12, I remember having decided to be an atheist – and somehow I got there by reason, for there was no pressure or emotion driving me that way, that I can recall, but it was probably my first big decision. At 13, I made a second, namely to follow my parents’ sound advice to attend boarding school, which certainly led me to a first class education including a Cambridge degree.

But I move too fast: at 16, still at school, I underwent a religious conversion, after which for 18 years I was a Christian. That too was a very big decision with lots of implications but I’d say it was not based on reason. My shyness had left me somewhat pummeled at boarding school so when I encountered a very warm, friendly environment of kindly Evangelicals who wanted me to join them it wasn’t hard to respond; I didn’t consciously go against my intellect or violate reason, it was just that reason played no part in the change and my atheism kind of melted away. If it had (had there been someone present to remind me that this or that premise I was hearing was unsupported) I can’t say how my decision might have gone. But there wasn’t.

So for a couple of decades I buckled down to an interesting and successful career with IBM and to raising a family and preaching on occasion in the local chapel. Government was, as far as I knew and was interested, just “there” like the weather; it was a fact of life. I was definitely Conservative rather than Socialist – I could see that clearly into the political arena, and voted that way at elections – but I had no interest in taking further part.

In 1972, however, I asked myself a question and pressed it rather harder than I ever had before: “How do you know that Christianity is all true, objectively?” The usual answer was that the Resurrection was a proven fact, so I checked again and to my astonishment found that it was not proven at all! – that a natural, possible explanation for the empty tomb does in fact exist. Details appear at http://takelifeback.com/oto/stone.htm for those interested. I ran the finding past several theologians of high repute and none of them had a coherent answer – so I left the Christian world; without regrets, for it had been a pleasant pair of decades with many good friendships formed. But now I knew that it was all actually no more than a benevolent fairy tale.

That however left a vacuum: what purpose, from then on, was to excite and color my life?

I felt liberated, and so was inclined to an interest in freedom. In 1976 I was astonished to learn from a BBC broadcast of a visiting Milton Friedman that there was a whole dimension of economic freedom of which I’d been unaware, and obtained (by having to order it, from a bookstore that had never heard of him!) a copy of his CAPITALISM AND FREEDOM and just lapped it up. I’d also for long been an admirer of the American style of life, so when a chance came in 1978 to move with IBM to New York, I grabbed it with both hands.

Then in 1979 I found myself waiting 45 minutes for a tank of gas, and did not understand why; for I had learned that queues (I didn’t yet know to call them “lines”) formed only in Communist countries. At Cambridge I had read some Economics, heavily influenced by that well-known alumnus John Maynard Keynes, so I was not wholly ignorant of the subject. when I searched high and low in the NY TIMES and TIME and NEWSWEEK but found no credible, comprehensible explanation whatever, I knew something was up.

Then I saw a full-page ad in the TIMES, placed by the Libertarian Party; and I filled out the form for more info.

It came, a few weeks later, with an elegant explanation for the gas lines based on government retail-price manipulation and foreign policy, and once again I was lapping things up and was introduced to a whole library of magazines and books which I bought and devoured and it all made perfect sense! And although not qualified to vote (as a mere resident alien) I played an active part in the LP of Connecticut and later of New Hampshire.

This last quarter century has therefore been the most exciting of my life – understanding more and more about freedom and enjoying the company of freedom seekers, and trying to spread news of liberation. It has been my high privilege to meet a few of the really great pioneers in the movement, like Murray Rothbard, David Friedman, Harry Browne, and Anthony Alexander.

I came fairly quickly to see that partial pregnancy is not an option – that is, that “minarchism” is plain silly. That perception has deepened and hardened over the years. Rather later, however – the late 90s – I reached another key decision: that politics was not the way to achieve a free society. I doubt if it was wrong to try (probably the compromises Rothbard made, to try to unite a political movement, were worth trying) even though logically it makes little sense – but in fact it clearly will not work, so the point may be moot. The LP has striven mightily for three and a half decades, and has totally failed to break through. Further, dogged by lack of success, it has morphed into an outfit which Rothbard would hardly recognize, with more and more compromise of principle in a desperate attempt to gain recognition and votes. So I have quit politics, and have been trying to figure out what is needed to replace it – that is, how it is possible to end the Age of Government and so enjoy real freedom.

It surprises me somewhat to find no such “strategic plan” anywhere. I never found one, even, in the LP! There were and probably are great-sounding Plans to Gain More Members or to Restore Revenue, but there was no grand strategy for getting from here to there; no road map, showing key steps to be achieved, with dates, and how and when government will implode as a result. Not in the Party, and – worse yet – not even outside it. I knew from my time in IBM that if you don’t have a plan for achieving something, you certainly won’t achieve it! (You may not achieve it even with a plan, and for sure the plan will need to be modified as you go along; but without a plan, you never even start.)

So I figured that since nobody else had done it and I saw the need, I might as well cook up a plan myself, which I called The On Line Freedom Academy. It provides a credible, reasonable, peaceful way to achieve a zero-government society within a single generation – not of course by force, but simply by the withdrawal of all the support without which government absolutely cannot survive. Go join!

So there you are; a rather long and rambling tale of one person’s search for liberty. Did I get here by emotion, or by reason? – ten thousand times, BY REASON! There was only one key decision in my life that was not based on reason, and it led me on an 18-year digression into religion. At all the other major turning points, I went where reason led me.

I often wonder, though, whether I would have reached my present understanding and purpose much sooner, if some reasonable person had reasoned with me earlier in the tale. Suppose someone had pointed me to something similar to TOLFA while busy with sermon prep? I have to say no; probably I’d not have been receptive. At that time I had no inkling that I was less than free already, and could have shown some proof-texts to explain. I knew that Socialists did deplorable things, but knew also that governments had been instituted by God so must in the end be obeyed; so any anarchist bearer of good news would not have kept my attention long. Like government, religion is a powerful twister of the mind and destroyer of reason and open inquiry; that was just not the right time, for me.

Suppose though that Anthony Alexander had crossed my path, back in ’76 as I finished reading CAPITALISM AND FREEDOM and given me a copy of THE MARKET FOR LIBERTY to which he contributed; would I have lapped that up too, and moved directly from a bland and unthinking acceptance of Statism into hard-core anarchism, without my 20-year excursion into Libertarian politics?

I don’t know how to know for sure, but I certainly hope so and cannot think of any reason why not. Anthony would have had to sit with me for quite a while, to lead me through the steps of reason that inevitably produce the conclusion that government is 100% a myth and a fraud, but I do think that at that time (1976) there were no obstacles in my mind that would have prevented him succeeding. Give or take a year, therefore, it seems to me that I’d have saved a couple of decades, had such reasoned help been available.

By the wonder of the Internet, reasoned help like that is now available, with TOLFA’s interactive Q&A, to millions – completely free of charge. My own story suggests though that timing is vital – that the offer must arrive when the person is ready to use it – and that’s the other strength of TOLFA, for in every case it will be drawn to his attention by someone he knows and probably more than once over a period of several years. That means he will eventually encounter it at or near the very time he is ready to consider what it says, just as I was back in 1976. And so I foresee we are going to have a very exciting pair of decades, and that our goal is, at last, now within reach.

Michael van Notten, The Law of the Somalis (Red Sea Press, 2005)

Appendix B

Frank van Dun

The most distinctive contribution of Africa to human history has been precisely in the civilized art of living reasonably peacefully without a state.     -Jean-Francois Bayart (1989:58)

Kritarchy is an ideal legal and political system most closely approximated in the institutional structures of traditional societies, especially those described by anthropologists as “acephalous,” “polycentric,” or “stateless.” Such societies are based on customary rather than statutory law. This type of law fares poorly under statutory regimes, and stateless societies have diminished drastically in numbers with the spread of political states over the past several millennia. Nevertheless, though endangered, societies approximating kritarchies are far from extinct. Nor should they be considered primitive. The Somali system of customary law Michael van Notten describes in this book, for example, is not a curiosity of some backward tribe. It is a living and highly developed juridical system looking to the future rather than the past.

Somalia is unique in the world today for being free of even the titular domination of a central legislative apparatus. The central government of the Somali Democratic Republic was dismantled in 1991 when, after the ouster of dictator Siad Barre, no agreement was reached on a successor. For more than a decade, Somalis have resisted the unremitting efforts of the United Nations and its supporters to re-impose that government. If they continue to be successful in their resistance, then it can be reasonably expected, as Van Notten argues in this book, that the Somali customary law system will evolve into a full body of common law capable of meeting every need of a developed, free-market society.

Rule of Law

Kritarchy as a form of government is based on equal justice for all, where justice is understood as adherence to the principles of natural law. Natural law is the body of principles underlying all spontaneous human social organization. Implicit in these principles are certain universal natural rights of individuals, notably property rights, including rights in one’s own person, and freedom of contract.

Its consistent adherence to the rules of justice under natural law distinguishes kritarchy from other political systems. Under this ideal, even courts of law, police forces, and other organizations concerned with the day-to-day maintenance of law are denied any power, privilege, or immunity not in conformity with natural law. That means that a police force in a kritarchy can lawfully use its weapons and coercive powers only to maintain the law, i.e. to defend or remedy violations of people’s natural rights. It also means that, unlike their counterparts in the prevailing political systems of today’s world, courts of law and police do not constitute and are not incorporated into a coercive monopoly. Anyone is entitled to offer judicial or police services to willing others. None can be forced to support any court of law or police force against his will. In short, in a kritarchy, judicial and police services are offered in a free market—which, in so far as exchanges of goods and services are concerned, is the natural law of the human world.

Because of its commitment to equal justice for all, a kritarchy does not know the usual political distinction between subjects and rulers. It lacks a government in the modern sense of the word, i.e. an organization with coercive powers that claims both the obedience of and the right to use the labour or property of those living in the area over which it effectively exercises control. Governing and taxing people by public or private force is not among the functions of the political system of kritarchy. People are free to govern their own affairs, either individually or in voluntary association with others, which means that each, in governing his own affairs, is required to leave others free to govern theirs. In this sense, freedom is the basic law of a kritarchy.

It follows that a kritarchy can only exist in societies where, and for as long as, a commitment to justice is sufficiently strong to defeat the efforts of persons who would use unlawful methods such as aggression, coercion, or fraud to further their ends or to evade responsibility and liability for wrongs they have caused others. While it is theoretically conceivable that freedom could be maintained by nothing more than unorganised, spontaneous actions of self-defence, in a kritarchy the commitment to justice manifests in its political system, which guarantees a free market for the enterprise of justice.

Origin of the Term

The term “kritarchy,” compounded from the Greek words kritès (judge) or krito (to judge) and archè(principle, cause), was coined in 1844 by the English author Robert Southy. In its construction it resembles terms such as “monarchy,” “oligarchy” and “hierarchy.” “Kritarchy” is mentioned, among other places, inWebster’s Unabridged Dictionary, The Oxford English Dictionary, and The American Collegiate Dictionary. According to its etymological roots, a kritarchy is a political system in which justice (more exactly the judgment that seeks to determine justice) is the ruling principle or first cause. Similarly a monarchy is a system in which one person is supposed to be the ruling principle or first cause of every legal action, everyone else being no more than an obedient subject of the monarch. In an oligarchy a few persons (the oligarchs), acting in concert but without a fixed hierarchy among them, are held to be the source of all legal actions. In the modern system of parliamentary sovereignty, for example, members of parliament constitute an oligarchy and have equal standing within the parliament. However, the results of their deliberations and decisions are supposed to bind all people who, because of citizenship or residence, are considered subject to the state’s authority.

If “monarchy” denotes rule by one person and “oligarchy” denotes rule by a few, it is tempting to understand “kritarchy” as rule by judges. However, the use of the word “rule” should not mislead us into thinking that the rule of judges is like that of monarchs and oligarchs, and least of all that it is a particular sort of oligarchy.

Monarchs and oligarchs aspire to political rule, i.e. to being able to enforce on their subjects obedience to their commands, rules, decisions, and choices. In short, monarchs and oligarchs rule by a mixture of direct command and legislation. Judges, on the other hand, are supposed not to legislate but only to find ways and means of managing conflicts in a lawful manner. They do not seek to enforce obedience to their commands as such. Rather they seek respect for law, which is an order of things objectively given and not just anything that corresponds with whatever desires or ideals the judges may have.

Judges in a kritarchy have no subjects. In other political systems, judges have been incorporated as magistrates into a system of political rule and empowered to use coercive means to drag citizens and residents before their benches. Monarchs and oligarchs in those systems impose, or allow their servants (judges, prosecutors) to impose their rulings on those subjects on whom they want to impose their rulings. In other words, they “pick” their subjects (which is the root meaning of the Latin legere, from which the word lex for legislated or statute law is derived). In a kritarchy, judges do not choose which persons will appear before them. Instead, those people desiring to have their conflicts and disputes resolved by judicial judgment will “pick” their judge.

The distinctive characteristic of a kritarchy, therefore, is that it is a political system without the institution of political rule. If we think of it as “the rule of judges,” we must remember that these judges enjoy no particular privileges or special powers. Kritarchy is not the rule of legislators, judges or any other category of privileged officials. It is simply the rule of law.

Historical Approximations

Examples abound, recent as well as historical, of kritarchy or near-kritarchy, and also of attempts to use constitutions and other charters to introduce elements of kritarchy as checks on the powers of states and governments. In many parts of the world, even though they derive their authority merely from custom and not from a conscious and explicit commitment to natural law, unwritten customary laws memorized by clansmen frequently provide strong support for the dispersal of power that characterizes kritarchy.

At the end of the second millennium before Christ, the Hebrews lived in a system described in the biblical book of the Judges. Their “judges” were not judges in the technical sense of modern legal systems. They were influential, respected men who provided leadership and counsel without having power to coerce or tax. The history of Celtic and Germanic peoples both before and during their confrontation with Roman imperialism is replete with examples, as is the medieval period after the collapse of the Roman Empire in the West. Kritarchy was firmly established in medieval Ireland until the middle of the thirteenth century, and in Frisia into the sixteenth century. In the first half of the nineteenth century, European immigrants who settled in the Midwest and the Far West of North America developed their own brand of kritarchy. Clan societies in Asia and Africa adhere to some forms of kritarchy so far as they have not been submerged in the statist structures imposed by the colonial powers and taken over by indigenous political rulers in the post-colonial period.

While these historical realizations or near-realizations of kritarchy may suggest that it is a primitive political system, it should be borne in mind that most of them fell victim to conquest or to the firm hold on power established by military lords in times of war, who then turned ostensibly temporary structures for the mobilization of men and resources into a permanent apparatus of political rule. It is certainly true that kritarchies are ill equipped to make or endure war for long periods of time. The vulnerability of kritarchies in the face of massive military operations is comparable to that of a small or technologically backward state confronting the might of a large or technologically advanced neighbour. This is a problem, however, that we can acknowledge without losing sight of what a kritarchy has to offer for more “normal” times.

Democracy

Democracy, despite some of its advantages over other forms of political rule, is nevertheless a system in which some presume to have the right to govern the rest regardless of their consent. As such, it is unacceptable from the viewpoint of natural law and is incompatible with the political system of kritarchy. Under a democracy people vote to determine which individuals will be their political representatives, and there is no fault in that. The central defect and, in fact, the irreparable defect of democracy is that it embodies the ‘right’ of the representatives to rule over those who did not vote for them as well as over those who did. It allows the elected rulers to violate the natural rights of people with impunity—at least if they do so in a properly legal way by specifying in advance and in sufficient detail how it should be done, by which magistrates or officers of the state, where people can complain if they feel their rights are improperly violated, and so forth. As in other systems of political rule, however much formal independence of the legislature and the executive the judiciary may enjoy, there is in a democracy no truly independent—no non-governmental—police or judiciary to which people can appeal. A democracy outlaws all independent sources of protection of natural rights as a matter of constitutional necessity, in order to make sure that no natural rights can be invoked against the legal rights of democratic rule.

Democracy is often presented as “government by consent,” but that is never more than the consent of a majority and, as a rule not even that. As a political device, democracy was no doubt a great invention. Regular elections provide a rough mechanism for ensuring an alignment of rulers and a sizeable part of the subjects over whom they rule. Elections thereby help to prevent or minimize the violent confrontations and unrelenting repression and exploitation that are permanent risks in other systems of rule. Nevertheless, elections have no basis in natural law. To understand this, it suffices to ask how a person could lawfully authorize another to do what he himself has no right to do. The question is pertinent because, to repeat, democracy is a system of political rule in which there is a distinction between the rulers and the ruled, and between the legal rights of the rulers and those of the ruled. If you attempted to do to your neighbours what a democratic government does to its citizens, let us say, tax them, fix their hours of work, force them to send their children to schools of your choice, or accept the money you have printed, you would very likely end up in jail. No democracy allows you to do such things. Nor does it allow you to undertake these activities in conspiracy with others. But it does allow you to have someone else do them in your name and on your behalf! All you have to do is to vote for your “political representative.”

To deny anyone the natural right to withdraw his consent, moreover, makes a nation a closed community to which one is assigned by birth and for life: a life sentence. The inability to withdraw consent—to secede—except by permission of the government itself makes a farce of the whole idea of consent.

But the great mystery of democracy is that “representatives” are vested with powers the people who empowered them are not and should not be allowed to exercise. Of course, the mystery is only apparent. It disappears as soon as we recall the Hobbesian foundation of democracy, that there is nothing wrong with injustice as long as it is properly monopolized. More fundamentally, in a democracy every voter is assumed to have a right to decide who should control the coercive monopoly and rule everyone else in the state. That becomes obvious in the unlikely scenario where only a single voter shows up at the polls. His vote then decides which party should take over parliament and the government, as if he were an absolute monarch picking his counsellors and ministers.

Constructions of Artificial Law

Leaving no room for the idea that human beings are natural persons in a natural world, current legal and political ideologies make any man or woman an artificial being, a “citizen,” whose very essence is defined and created by the legal rules of the state to which he or she belongs. Within the state, human beings have no rights except in so far as some legal authority regulates their existence and freedom. That is why the United Nations’ Universal Declaration of Human Rights, in its Articles 6 and 15, names “a legal personality” and “a nationality” among the things people have a right to. From the point of view of the Declaration’s underlying philosophy, a legal personality and a nationality, in a word, “citizenship,” are desirable because they are the necessary conditions of legal existence in the state. Without them a person is a nobody. Once we substitute the perspective of legal rule for that of natural law, we must admit that what a person has a right to do or to call his own depends, not on what he is or does, but on his status in the legal order in which he happens to find himself. He becomes an artificial person in an artificial order, like a piece of wood that is assigned different “rights and duties” depending on whether it is used in a game of chess, checkers, or backgammon.

The glorification of such artificial legal orders is common in contemporary legal and political thought, where fiction seems invariably to triumph over reality. These orders are based on artificial or imaginary distinctions and on the neglect of or disregard for natural distinctions. Some of them arbitrarily or systematically refuse to acknowledge certain persons as persons at all. Others define some or all persons as being in some or all respects a “part” of others, to which they are therefore said to belong. Some go so far as to define human beings as parts of non-existent imaginary or fictitious persons. In fact, however, natural persons are never “parts” of other natural persons or legal fictions. They may become members of some association or society, and in that sense become “participants” in its activities, but that does not imply that they are thereby mysteriously transformed in mere “parts” of a person—nor does it imply that the association is a person in its own right.

No matter what the philosophical pretensions behind the constructions of artificial law may be, they all share a common practical implication. They deny the freedom and equality of certain human beings. These artificial constructions cannot hide the fact that from the perspective of law some people either do not exist at all or exist only in so far as they are “represented” by others. Thus, by denying natural law and the natural distinctions that constitute it, they conjure up an idea of law that makes the non-consensual ‘government’ of one person by another seem “lawful.”

It should be sufficiently clear by now that natural law is not a question of idle speculation, but of natural fact. In this sense a kritarchy is a political system based on respect for the facts of the human world. Respect for natural law is therefore an objective category of human action. Human actions that respect law are lawful and therefore just. Those that do not are unlawful and unjust.

Justice

Justice in the general sense is the art or skill of acting in conformity with law, with due regard for the rights of other persons. In the particular “technical” sense it is the art or skill of discovering rules, methods, and procedures that effectively and efficiently provide for the defence and, if need be, fortification and restoration of the law of the human world. The discovery, refinement, and systematisation of such rules, methods, and procedures are the proper field of jurisprudence as a rational discipline.

In an evolved kritarchy, jurisprudence is the business of specialists—jurists—who supply their skills in an open market to individuals and organizations. In more complex societies, they render this service primarily to courts of law, police forces, and other organizations involved in enforcing observance of natural law and helping people make their actions conform to the requirements of justice. As noted before, in a kritarchy neither the courts of law nor the police forces have any legal monopoly. Their clientele and membership remain free to shift their demand from an unsatisfactory to a hopefully more satisfactory supplier of justice. Consequently, courts of law and police forces in a kritarchy have a strong economic incentive to avoid using violence or other coercive means to, say, compel a person to appear in court, unless they have good reason to believe that he is guilty as charged, is obstructing the course of justice, or is not insured to cover his liabilities.

Not being above the law, the courts and police forces of a kritarchy always run the risk, should they deprive others of their rights when justice does not require it, of being charged with unlawful behaviour in another court. That other court might be a competitor or a group of competitors. It might also be a parliament, i.e. a representative body that acts as a public guardian of the law. Such a parliament would sit only as a court of law, however; it would not have the power to govern or to make laws that restricted anyone’s rights. However, it could be an effective agent of justice, for instance by convincing the public that the courts of law or police forces it convicts are not worthy of the public’s trust, or by convincing other organizations of justice to enforce its verdicts against recalcitrant convicts. Because they need the consent of all parties if they wish to avoid the risk of using violence against an innocent person, the courts in a kritarchy must offer adequate guarantees of competence and impartiality. They must do so in order to elicit the cooperation of the accused and defendants as well as to assure the plaintiffs and claimants, who initiate the proceedings, that their verdicts are unlikely to be contested in another court. Short of seeking a monopoly by the violent elimination of its competitors, an organisation of justice has no alternative but to build up a solid reputation for justice.

Working out details, conventions, and protocols for an operational and efficient system of justice is no mean task. Like every other significant practical undertaking, it requires knowledge of the general principles of law as well as experimentation with different types of organization for supplying justice. It is the task of applying entrepreneurial creativity to recombine available social, technical, administrative, and financial resources and skills to improve the prospect for effective justice. It is not likely that this task can be carried out with any consistency within the stifling confines a legal monopoly. On this conviction, the case for kritarchy rests.

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Frank van Dun, born 1947 in Antwerp, Belgium, studied law and philosophy at the University of Ghent. His Ph.D. dissertation in 1982, The Fundamental Principle of Law (in Dutch), attracted the attention of Michael van Notten, who used it to develop his own views on freedom and law into a framework of thought and action for his libertarian projects. Prof. van Dun teaches legal theory, philosophy of law, fiscal theory, and logic at the universities of Ghent and Maastricht. In addition to many papers on those subjects, he has published two books in Dutch, one on Utopias (The Utopian Temptation, 1997, with Hans Crombag) and another on fiscal practices (Man, Citizen and Fisc, 2000).
This essay originally appeared as “Appendix B” in Michael van Notten, THE LAW OF THE SOMALIS, Trenton: The Red Sea Press, 2005, pp. 187-196. Reprinted by permission of Spencer MacCallum and Isabelle van Notten.]

By John D. Fargo

Originally appeared in THE FREEMAN August 1992

It was back on the farm, late 1940s, along the northwestern edge of the corn belt-in the land of individualism. Folks were poor, and only the more rugged had survived the ravages of the Great Depression, but times were better now.

A new farmer moved in and rented the farm across the section. I’ll call him George. Within this self-reliant culture, George didn’t fit in well. Each farm, a piece of carefully marked-off private property, was conscientiously cared for by the farmer and his family, but not George’s.

This was before farmers used chemical weed killers. Thus, each farmer had to control weeds the hard way, by laboriously chopping them down, lest they go to seed and infest not only his fields but those of his neighbors. But not George.

We shared three-quarters of a mile of fence with George. Each farmer took care of half his common fences, making repairs when needed and chopping the weeds out of the fence row each summer. But George never laid a hand on any part of that fence.

Thistles were a nasty problem. Patches of these perennial weeds choked out the grain, and with no chemicals they were all but impossible to destroy. In the fall the thistles released thousands of tiny seeds that floated in the wind and could spread for miles. It was understood in the land of individualism that no one let his thistles go to seed-but George exempted himself. His farm became an eyesore in a culture where pride in one’s property, rented or otherwise, ran high.

Farmers often had to extend themselves. For example, instead of the normal 12-hour workday, they might put in 15 to 18 hours a day to get the hay crop in before a rainstorm. But George was too irresponsible to put forth the extra effort.

Corn, which requires a relatively long growing season, was the main crop back then, but it was vulnerable along the northwestern edge of the corn belt. Farmers had no commercial grain driers; most of them didn’t even have electricity. Thus, to prevent spoilage, the corn had to be left in the fields until it became sufficiently dry. This meant waiting until October, when early snows threatened to bury the crop.

Every October the race was on-to beat that first snowstorm and get the corn in. Corn-picking machines were repaired, greased, and ready to go. Corn cribs were built, farm kids skipped school to help with the harvest, and the time for 16-hour days, seven days a week, was on. But not George -his dilapidated corn picker wasn’t ready. And his three little kids were too young to help bring in the crop.

Tragedy Strikes
Machinery was primitive by today’s standards. Corn pickers often broke down, and dry corn husks often wouldn’t feed down between the steel husking rollers. Instead, they accumulated above the rollers, plugging up the machine. The operator was constantly stopping his machine to dig out the jammed husks. It was a tedious process.

But there was a faster and easier way of handling this problem: leave the machine running, reach in with your hand, and push the husks down so they would feed through the steel-ridged rollers. It was dangerous; a man could lose his fingers.

Well, George did it the easy way. He had barely gotten started with his corn picking when those steel rollers grabbed his fingers. All the doctor could salvage of his mutilated right hand was part of one finger and his thumb, minus the nail.

“He probably deserved it.” I never heard those words spoken, but I don’t doubt that the thought ran through a mind or two. In any event, the forces of selection had weeded George out. Farming required a strong back and two good hands, and this incident ensured that George would never farm again.

Word of the tragedy spread rapidly. The next day, a neighbor drove up to where we were working and talked briefly to my father. The neighbor planned to work in George’s fields the following day-maybe get some of his crop in-and thought we might like to help.

Early the next morning, we pulled into George’s farm with our corn picker, wagons, elevator (a long conveyor mechanism that lifted the corn into the cribs), and hoist (which lifted the front end of the wagons for easier unloading). George had no permanent corn cribs, so we scrounged around in the dark, looking for pieces of old corn-crib fencing to construct temporary cribs. About then, another farmer pulled in with a trailer loaded with brand new corn-crib fencing.

Before daybreak, we had the elevator up and running, the bottom rung of the corn crib built, and the first loads of corn already were coming in from the fields. The bitter cold penetrated to the bone, and I was anxious to start unloading wagons.

A young farmer drove in with his corn picker, stopped where I was working, and asked if he could help me unload wagons. That seemed strange because running the elevator and hoist, tending the temperamental gasoline engine that powered the works, and unloading the wagons was normally a one-man job. He insisted until I convinced him that I could handle it-and they probably needed him and his corn picker in the fields. It wasn’t until he left that I realized it was probably my age that had prompted his offer. I was 11 or 12 at the time, but younger kids than I were operating the tractors that pulled the wagons loaded with corn.

Judging by the rate the corn started coming in, I figured there must have been a dozen corn pickers running. A second elevator pulled into the farmyard and was set up nearby. More corn pickers arrived-their faded yellow, green, or red paint showing through the dirt and grime of the machines. By mid-morning the place was swarming with people and machines.

Farm wives drove in with pots and baskets of food for dinner (the noon meal). The area near the farmhouse was beginning to look like a small parking lot. The house could not hold everyone, so we ate in shifts. Most ate quickly and quietly, then returned to work. I didn’t know of anyone who was on “visiting terms” with George and his family.

By mid-afternoon, some of the corn pickers were returning from the fields, pulling through the farm yard, and leaving. One farmer, pulling in a load of corn, said that most of the corn was picked and they were starting to get in each other’s way. Before dark George’s entire crop was harvested, and he hadn’t even returned from the hospital.

The remaining operators were solemnly departing. I counted over 20 corn pickers leaving, but there weren’t that many farmers in the area. Some of them must have pulled their machines several miles in order to help out. Now, each farmer was going his own way, returning to his own fields where he would work late into the night in that annual race with the snowstorms.

That was how charity worked in the land of individualism, back before the welfare state became entrenched.

It may take the world a while, but eventually it will discover that true charity lies deep within the fertile soil of authentic individualism. These rugged souls, who dare to stand alone, tend to have hearts of gold.

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Mr. Fargo is a railroad worker in Los Angeles and a parttime student at California State University, Los Angeles.

By Spencer Heath MacCallum

On June 8, 2006 we lost to cancer a unique freedom fighter, scientist, inventor, and entrepreneur, Werner K. Stiefel, 85 years old, of Vero Beach, Florida, survived by his wife, Marie, and six children. He was such a private person that not many people knew him.

Werner believed as an act of faith, as do I, that human social organization in the future will be stateless. Such an assumption is warranted for the same reason as the scientist’s assumption that the universe is a cosmos and not a chaos. That is to say, it’s a productive assumption. The scientist can’t prove the universe is rational, but without that assumption, he would make no discoveries. He wouldn’t expend the effort. In the same way, it is productive to assume that human society which, after all, is very young, is a work in progress and that we will outgrow/are outgrowing the conflicted behavior of politics.

The interesting question is how we will outgrow that conflicted behavior, and therein lies the value of the productive assumption: it prompts the search for new understandings of the evolving social process. To engage in such discovery is inspiring, and inspiration lifts our spirits. It is the fountain of creativity. Perhaps more than anything else, that is what being human, in the best sense of the word, is all about.

Around 1970, I made the acquaintance of Werner, who was developing plans to build a free community. While the community would need to be effectively governed, it would differ from communities as we know them by being internally consistent. In no way would its management infringe upon property rights. There would be no taxation or other discretionary authority over anyone’s person or property.

Werner had been inspired and awakened philosophically by reading Atlas Shrugged. But unlike many Randians, he saw an inconsistency in her tolerance for the state. He realized that men act in their own interest as they perceive it, and that is no problem when they are dealing with their own person and property. But when they acquire discretionary authority over persons and property not their own, problems arise, since their perceived interest and that of the owners must at some point diverge. The private individual then must resist, even to the forfeit of his life if he cannot prevail, or else live for the sake of another. The last is irreconcilable with the oath taken by all in Galt’s Gulch: I swear by my life and my love of it that I will never live for the sake of another man, nor ask another man to live for mine. (Atlas Shrugged 1956: 680).

Werner’s family had experienced Nazi Germany in the 1930s. Unable to rescue any of the assets from the family soap manufacturing business in Germany, he and his father and brother set up a new business in the United States, based on what they carried in their heads. Today Stiefel Laboratories is the largest privately-owned dermatological company in the world with over 2,500 employees and offices in more than 100 countries. Lubriderm is one of their best-known products. Werner remained president and CEO until his retirement in 2001.

Reading Atlas Shrugged, Werner woke up to a sobering question. When conditions had deteriorated in Germany in the 1930s, many people had fled to the United States. But even then, Werner saw symptoms of the same thing happening in the United States that he had witnessed in Germany. When the time came, he asked, where could people flee from the United States?

Taking a cue from Ayn Rand, Werner conceived of a “Galt’s Gulch” (aka Mulligan’s Valley, aka Atlantis) somewhere on the oceans, a community on the high seas outside the political jurisdiction of any nation. Adopting the name “Atlantis” (not to be confused with Erik Klein’s project by the same name in the years 1993″1994, also to promote a floating sea city, but not apolitical), he set about making the dream a reality, using his private resources and not any of those of the company. His endeavor would prove to be a fit subject for a heroic novel after the manner of Rand.

A Herculean Effort

Around 1970, Werner purchased a motel near the company’s main plant in Saugerties, N.Y., and invited libertarians to come and live there while they worked in the surrounding area and, in their free time, to help plan the Atlantis Project. He conceived of the project in three stages. Atlantis I was the Saugerties Motel. Atlantis II would be a ship at sea, and Atlantis III would be a floating community or perhaps a community on dredged-up land on some submerged seamount. The ship would play an indispensable role as supply vessel and living quarters in the construction phase of Atlantis III.

At Saugerties”Atlantis I”Werner undertook to transform those who had joined him into a seasoned team that could work under any and all conditions. He gave them the daunting task of building the ferro-cement ship that would be Atlantis II. The team passed this first test and sailed the ship south into the Caribbean, where a tropical storm destroyed it, fortunately with no loss of life.

Undaunted, Werner obtained another vessel and located a spot in the Caribbean outside any political jurisdiction where the depth was barely four feet at low tide. He had just completed the arduous task of constructing four sea walls and was about to begin dredging sand to create his first bit of artificial land on which to stand while extending Atlantis III, when a gun boat showed up and leveled its guns at his crew. Someone had found silver nuggets on the sea bottom nearby and had cut a deal with Haitian dictator Papa Doc Duvalier for protection from pirates. The gunboat captain, not knowing who these people were or what they were doing in the area, decided to run them off. Werner was forced to make a quick decision. Unwilling to risk people’s lives, he abandoned the site.

For a permanent base of operations, Werner then took a long-term lease on a site in a freeport operated by the Haitian government. But when a copy of his newsletter, The Atlantis News, fell into an official’s hands and revealed his underlying philosophy, the government forthwith canceled his lease. From this experience, Werner learned the importance of a low profile.

He next set about to create land on the Misteriosa Banks, a submerged seamount midway between Cuba and Honduras, the same location that self-styled Prince Lazarus Long would later publicize as the site for his ill-starred New Utopia. Werner bought and towed to the site an oil rig of the type that, once on location, could be inverted to stand on three legs. Before it could be put in place, however, a hurricane blew it out to sea, destroying it.

Still undismayed, Werner purchased property on Grand Cayman and constructed an attractive complex for a new center of operations, one that could also serve as a retreat for the staff of Stiefel Laboratories. This garden setting still exists. It became, among other things, the office of the Atlantis Trading and Commodity Purchasing Service (ATCOPS), which Werner had already established as the forerunner of the Bank of Atlantis. ATCOPS made profits for many clients, including me, over the years and struck an attractive silver coin, the deca, so-called because it contained a decagram of silver.

From his base at Grand Cayman, Werner bought an island off the coast of Belize and built improvements on it, his ultimate goal being to negotiate, if not full sovereignty, then at least a grant of freeport status from the government of Belize. Eventually, however, he tired of dealing with the bureaucracy. With age advancing sharply on him, he put up the island for sale.

To Grow a Free Country

Beginning with Atlantis, Werner’s goal had been to develop one or a series of freeports at sea that would function much like new countries. His approach had many practical features. Atlantis would start small and grow by increments. Moreover, rather than trying to attract a residential population, it would aim at businesses, starting with one of his own plants”Stiefel Laboratories. Businesses would bring their own personnel and their families, and these would require ancillary services, which services in turn would require personnel, and the residential population would grow naturally. This would enable the Atlantis community to develop without fanfare. Promotional advertising of casinos and other recreational amenities of tourism would not follow until much later. Until then, the fledgling community would keep its profile low, almost under the political radar screen. Werner’s approach was also non-ideological. He aimed at attracting effective, entrepreneurial people in business and the professions without regard for political persuasion or lifestyle.

The most imaginative aspect of Atlantis was that the provision of governmental services would be a business in and of itself, creating value in the competitive market and subsisting on the market revenues those values induced. There would be no need to appeal to philanthropy or to practice taxation. Because the provision of public goods would be a business, specifically that of a multi-tenant income property writ large, taxation of the residents would be intolerable, anathema to the enterprise because destructive of the values on which it depended.

From Werner’s Herculean effort came an intellectual construct that survived Atlantis. His constitution for a free community was a radical departure from all political constitutions. The need for such a construct arose because Werner’s “Galt’s Gulch” was to be far more than a literary device. He had set about to apply it in the real world. Unlike Ayn Rand, therefore, he could not ignore the question of how it would be administered.

There seemed no easy answer, however. By 1972, he had reached a low point and almost despaired of the project, agonizing over the question of how Atlantis could be administered as a community and yet its inhabitants remain free. What form of government should he choose? Surveying all of history, he found no form of government that would not be prone to repeating the same tired round of tyranny the world had known for thousands of years.

At that point, Werner came upon the ideas of my grandfather, Spencer Heath, and saw their relevance. Heath had pointed out an advantage in keeping the title to the land component of a real-estate development intact and parceling the land into its various lots by land-leasing rather than subdividing. This creates a concentrated entrepreneurial interest in the success of the development, enabling it to be administered far into the future as an investment property for income rather than selling it off piecemeal for a one-time capital gain. Those holding the ground title have an incentive to supply public services and amenities to the place, creating an environment the market will find attractive. To the extent they do so, they can recover not only their costs but earn a profit to themselves and their investors. Heath forecast that in time whole communities would be managed on this nonpolitical basis. He saw this becoming the future norm for human settlements, each competing in the market for its clientele. Community services, he thought, would thus become a major new growth industry.

Heath’s ideas brought into focus a vast and virtually untapped body of empirical data from the field of commercial real estate, namely, the emergence of multi-tenant income properties such as shopping centers, hotels, office buildings, business parks, marinas, and combinations of these and other forms. What all of these have in common is that title to the land underlying a development is not fractionated by subdividing but is held intact. While buildings and other improvements on the land might be separately owned or not, the sites are leased. This preserves the unified entrepreneurial interest in the whole development that enabled it to be planned and built initially, and this concentration of interest permits it to be operated as a long-term investment for income. The result is very different from a subdivision, such as a condominium or other common-interest development, which is likely to be governed by a homeowners’ association. A subdivision is an aggregation of consumers looking to their own purposes and not in any sense a business enterprise serving customers in the competitive market.

Werner had just such a working community in his Saugerties Motel”Atlantis I. Here he administered all the community services contractually on an ordinary, businesslike basis. Pragmatic businessman that he was, he realized that here was his desired form of government”a proprietary, free-market government in which there was no violation of property rights. All relations were contractual, negotiated among the parties. The only thing lacking that we are accustomed to find in a community is a city hall exercising taxation and other discretionary authority over the inhabitants and their property. All Werner needed was to preserve this form of organization and move it out to sea.

Why had no one thought of this before? Why isn’t it common wisdom? Doubtless a major reason is that the dynamic, evolving market process is recent in human history, at least to the degree that we know it today, and our understanding of it only beginning. Boston’s Tremont House, regarded in the industry as the first modern hotel, was built only 175 years ago. All subsequent forms of modern, multi-tenant income property have evolved since then. Only with the advent of modern technology and business practice, including all the various supportive institutions of banking and finance, insurance, communications, market prices, modern accounting methods, and so forth, could a community fully take the form of a competitive business enterprise. In addition, we are used to idealizing politicians as selflessly motivated, since in public life as we have known it, self-interest and the public interest are opposed. Only in the free-market process are the interests of customers and service providers aligned. Unaccustomed to recipients of public services being customers, it is not easy for us to accept public-service providers acting in their own self interest.

Werner’s Master-Lease Form

Werner saw that the master-lease form would be critical to the success of Atlantis. It would be Atlantis’ social software, as it were, capable of generating an elaborate but internally consistent web of relationships, all spelled out in the wording of the leases, subleases, sub-subleases, etc. The sum of the agreements in effect at any given point in time would be the written constitution of Atlantis. They could be as specialized and distinct as circumstances might warrant, so long as they did not contradict any part of the master-lease form.

Without a body of legislated rules to fall back upon, the master-lease form would have to provide for every conceivable contingency. Werner gave me the task of drafting it. It was a moment of truth. But I couldn’t dodge the assignment, since I had studied the question from the broad viewpoint of social anthropology and had published the first description of multi-tenant income properties as a distinct class of social phenomena (The Art of Community, Institute for Humane Studies, 1970). No mere theoretician, Werner assigned me a 2% equity in the venture.

Werner’s master-lease form not only survived his Atlantis project, it took on a life of its own. With Werner’s approval, it was published in several iterations, giving many people an opportunity to criticize it and offer improvements. But because Werner was leery of prematurely drawing the attention of the world’s governments to the idea of private settlement of the open seas, it carried no reference to Atlantis. It appeared as a purely heuristic exercise in the free-market provision of community services in a made-up setting called “Orbis,” one of a hypothetical cluster of settlements in outer space. [See A Model Lease for ORBIS, The Voluntaryist, Whole Number 81, August 1996 and accompanying editorial comments.]

Of the many refinements of the master-lease form made by other people, the single most important was that by Michael van Notten (1933-2002) in The Law of the Somalis (Red Sea Press, 2005). A Dutch lawyer who married into the Samaron Clan of Somalia and lived with them for the last twelve years of his life, Van Notten launched the Somali Freeport project to develop a large, multi-tenant income property provisionally called Newland on land leased from the Clan. He conceived of Newland as a purely private business venture with no flags, anthems, or any of the ritual panoplies and paraphernalia associated with political nations. If successful, it would have become something like a small, latter-day Hong Kong, offering a business and professional environment free of all burdensome bureaucracy and taxation. Located in their own back yard, so to speak, it could become for the Samaron their stepping stone to full cultural, economic, and technological participation in the developed world. Traditionally a stateless people, the Samaron aspired to such participation if it would not entail their being dominated by a political government, their own or any other.

In adapting Werner’s master-lease form to Newland, Van Notten made a significant addition. He sketched out and incorporated in it a detailed set of natural-law principles and supporting procedural rules. This would enable a system of law to be in place from the beginning of the development, from which point it could evolve of its own accord. It would be a system of law, moreover, to which all members of the community, including administrative and service personnel, would have freely consented in their lease agreement or terms of employment.

Natural-law scholar Roy Halliday wrote of this innovation that it

comes as close as anything I have seen to establishing the framework for a civil society consistent with liberty and natural rights. The idea of incorporating a description of natural rights into the master lease for a proprietary community is brilliant. It satisfies both the strong natural rights advocates . . . and the skeptics who believe rights are created by contracts. The lease contract provides a way to specify how rights are to be enforced.

In pursuing his vision of freeports at sea, Werner Stiefel put into motion in a practical way a plan for a wholly proprietary, nonpolitical public authority. Here was his answer to the question of how to have public administration and yet each and every person be fully empowered over his own person and property. He believed that humankind would outgrow government as we know it today. Perhaps what is most intriguing and heartening about his formula for an internally consistent, open social software is that it is not conjectural, but is extrapolated from a century and a half of empirical data gleaned from observation of the marketplace.

[Spencer MacCallum is a social anthropologist living in Mexico, where he played a key role in the economic development of the pottery village of Mata Ortiz. He wrote The Art of Community and edited and contributed to The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa (Red Sea Press, 2005). This article first appeared on LewRockwell.com in June 2006, and is reprinted by both permission of the author and Lew Rockwell.]

By Carl Watner

Seldom does one find a book that embraces statism to the hilt, but THE COST OF RIGHTS (New York: W. W. Norton: 1999), by Stephen Holmes and Cass R. Sunstein, is one such. From its subtitle, Why Liberty Depends on Taxes, to the assertion in the second paragraph of the dust jacket, that our rights to property, speech and religion … would not exist if government could not collect taxes to codify, protect, and enforce them, we find the authors turning liberty upon its head, making us slaves of the state, and our ownership of property dependent upon the legislature. Let us first offer a few definitions and then let our authors speak for themselves.

As I have previously explained in my articles about Freedom As Self-Control, freedom is an attitude of mind, a spiritual quality which cannot be conquered by iron jail bars or even death. Freedom is an inner spirit which allows each person to seek and speak the truth to the best of their ability. Freedom is bulletproof in the sense that one cannot shoot a truth. One’s body may be shot, but that does not affect the validity of one’s ideas. Liberty is a condition of not being molested by other human beings, either in one’s own body or in one’s rightfully owned property. In other words, each person has rights as an individual, that do not depend on their place of birth or the privileges granted to them by the political system within which they live.

Holmes and Sunstein might not dispute these assertions, but they completely ignore the possibility that rights might be protected by entities other than coercive governments. They define rights as important interests that can be reliably protected by individuals or groups using the instrumentalities of government. [p. 16, italics in original] To our authors, individual rights and freedoms depend fundamentally on vigorous state action. [p. 14] Personal liberty … presupposes social cooperation managed by government officials. [p. 15] Without government … there would be no right to use, enjoy, destroy, or dispose of the things we own. [p. 59] Property rights exist because possession and use are created and regulated by law. [p. 60] As Daniel Klein put it in his analysis, Holmes and Sunstein hold that all things are owned, fundamentally and ultimately by the government. ˜Private property [is] a creation of state action, [and] ˜laws [enable property owners] to acquire and hold what is ˜theirs’. [pp. 66, 230] 1 Holmes and Sunstein never defend the implication of their definition, that all rights stem from the government. Nor do they ever explain why and how governments have the right to protect us. 2

The reason that Holmes and Sunstein say that government depends on taxes is because governments require money to exist. Without money to pay soldiers, police, judicial officials, office workers, and other bureaucratic employees, governments would not be able to provide the services they now perform for their citizens. Fire protection, police, the army, the courts all require paid personnel, equipment, buildings, and roads to access these facilities. In short, these things cost money. Since governments are not charities, they do not solicit voluntary contributions. Since governments are not competitive businesses, they do not charge for their services. Instead, governments get their funds via taxation: the compulsory collection of revenue from their citizens. How much governments collect is not limited by what its competition charges (since the government will permit no one to compete with it, there is no competition), but simply by how much robbery the public will stand for before its members refuse to pay or revolt, or both.

But the truth is Holmes and Sunstein miss their mark. Most people desire some sort of professional protection from thieves, fires, and access to some type of professional dispute resolution service. Holmes and Sunstein never ask the most important question: Is it necessary that these services be provided by a coercive and monopolistic government? The answer is, No, and there are clear historical cases – when and where governments were not present to provide these services – that we find such services being provided on a competitive and voluntary basis. Such services do not depend on the existence of governments, but rather on the need, desire, and willingness of consumers to pay for them (on a competitive market, where they are not monopolized or prohibited by a coercive government). In American history, this has happened innumerable times. Both travelers going west on the Overland Trail and people in California during the early days of the Gold Rush, had no government to provide basic public services. Does this mean they had no right to their property or that anarchy and chaos ensued? Surely not. Listen to one contemporary observer of the Gold Rush:

The first consequence of the unprecedented rush of emigration from all parts of the world into the country almost unknown, and but half reclaimed from its original barbarism, was to render all law virtually null, … . From the beginning, a state of things little short of anarchy might have been reasonably awaited.

Instead of this, a disposition to maintain order and secure the rights of all, was shown throughout the mining districts. In the absence of all law or available protection, the people met and adopted rules for their mutual security – rules adapted to their situation, where they neither had guards nor prisons, and where the slightest license given to crime or trespass of any kind would inevitably lead to terrible disorders. …

In all the large diggings, which had been worked for some time, there were established regulations, which were faithfully observed. … When a new placer or gulch was discovered, the first thing done was to elect officers and extend the area of order. The result was that in a district five hundred miles long, and inhabited by 100,000 people, who had neither government, regular laws, rules, military protection, nor even locks or bolts, and a great part of whom possessed wealth enough to tempt the vicious and depraved, there was as much security to life and property as in any part of the Union, and as small a proportion of crime.3

At other times, on the American western frontier, the federal government could not adequately maintain a circulating currency. So businessmen set up their own mints and began providing coined money that effectively competed with government coinage. The point is that while the western frontier may have been stateless, due to the absence of the federal government and its employees, it was not lawless. Property on the western frontier existed despite the fact that state and federal governments were not there to enforce their statutory laws.

The fact of the matter is that Holmes and Sunstein have it all backwards. If there were no property, there would be nothing for the parasitic state to expropriate. If members of civil society did not work and produce, what would there be for the members of the state apparatus to confiscate? There can be no thievery if there is nothing to steal, and there can be nothing to steal if something is not first produced. As Carroll Quigley observed, when public authority in the Western world disappeared around 900 A.D., society continued. … It was discovered that man can live without a state; … . It was discovered that economic life, religious life, law, and private property can all exist and function effectively without a state.4 Or as John Zane put it in THE STORY OF LAW: Nothing is more silly than to say that the law made private property. The fact is the exact opposite. Private property came to exist [independently of the state] and it made the law.5

Government protection (alleged) of property rights is one of those political myths which governments use quite effectively to legitimize their conquest over us. In reality, government can only negate property rights, not protect them. This is true for a number of reasons, both theoretical and historical. First of all, governments have historically derived their revenues from taxation. This necessarily violates the rights of those who would not voluntarily support them. If those people do not willingly surrender their property, which is demanded by the government in the form of taxes, then government agents will ultimately either seize their property or imprison them for refusal to pay.

Secondly, all governments presume to establish a compulsory monopoly of defense (police, courts, law) services over a given geographical area. Individual property owners who do not wish to be included are protected nonetheless. If they resist the enforcement of government laws, they will eventually be jailed for obstruction of governmental administration of justice, or killed for resisting armed government officers. Furthermore, as commentators such as Murray Rothbard, Hans-Hermann Hoppe, and Walter Block have noted, the idea that the state can provide any sort of legitimate protection is inherently contradictory. How can government protect us by stealing from us? Governments do not protect our property from thieves; instead governments steal our property under the guise of taxation and call it protecting us. Or as Hans-Hermann Hoppe put it, A tax-funded protection agency is a contradiction in terms.6

In the last paragraph of their book, Holmes and Sunstein write that only through government can a complex modern society achieve the degree of social cooperation necessary to attain the liberty of the individual. [p. 232] I whole heartedly disagree with their statement. The history of voluntaryism in America, and other parts of the world, proves them wrong. From the evolution of the English language, to the establishment of time zones, to the standardization of railroad track gauges, to the establishment of industrial standards, to the evolution of private mediation and arbitration, voluntaryism has shown itself capable of creating vibrant communities. Social cooperation does not depend on government compulsion, nor does co-operation happen at the point of the government’s gun. It occurs when people interact for mutual benefit.

Another example of world-wide voluntary co-operation is the credit card industry. Credit card associations, such as Visa, MasterCard, and Discover make it possible for cardholders to use their charge cards almost anywhere. Yet as Edward Stringham has pointed out government did not create this system. No one is forced to use a credit card, nor is anyone harmed by not using one.7 The difficult problem of verifying the credit worthiness of individual customers is solved by their use of a reputable credit card. If debit and credit cards can operate all over the world, in the absence of a single unified world government, what other services might exist if their was no government to inhibit their creation?

To Holmes and Sunstein I say, yes: rights have costs; but governments have even greater costs and drawbacks. Give us, the members of society, a choice. Let us spend our money, freely, as we choose! My guess is that very little money would go to coercive government. As soon as people realized they could get more bang for the buck from the competition, government as we know it would become bankrupt. Voluntaryism and liberty depend on respect for individual rights and free choice, not on coercive government and taxes. Pay your money, and make your choice: Which would you rather have?

By Robert Ludlow and James Meyer

Editor’s Note: The following article was adapted from Robert Ludlow’s “St. Francis and His Revolution,” which appeared as an editorial in THE CATHOLIC WORKER (January 1953, and reprinted in Thomas Cornell and James Forest [eds.], A PENNY A COPY, New York: The Macmillan Company, 1968, pp. 150-154) and James Meyer, SOCIAL IDEALS OF ST. FRANCIS, St. Louis: B. Herder Book Co., 1938. Numbers in brackets refer to pages in the Meyer book.]

Those who place their hopes in political means … might do well to pause in this busy world of ours and think somewhat on St. Francis of Assisi and the method of St. Francis. “St. Francis,” states Father James Meyer, “effected his revolution on an entirely different field. To effect the change he did not kill a single human being, he sequestered not a single man’s property, closed up not one man’s business, inaugurated no new banking policy, initiated not a single repressive measure, wrote not a single law into the codes of the day,” … . St. Francis , who eschewed violence and politics, was more instrumental in effecting the downfall of an undesirable social system, than any politicians of his day, or any committees, or any organized group of dissidents. [27] Says Father Meyer, “Francis struck at the iniquity of it – especially with two provisions of the rule of the Third Order. One was the provision that the Tertiaries must not bear arms, the other was that Tertiaries must bind themselves with no oath, except where duly constituted authority rightfully required it.” [37] And it must be remembered that literally thousands of lay people joined the Third Order, so much so that the feudal lords were besides themselves with wrath and appealed to Rome to stop this madness. This madness which deprived them of serfs because the Third Order members refused to bear arms or take oaths of fealty to the lords. …

Of St. Francis, Father Meyer adds: “Coercion … of another person against the latter’s convictions was as repugnant to him as sin. Violence had no appeal to him, not even against the Saracen or bandit. Similarly, whatever amounted to compulsion, such as reducing his neighbor to a plight where self preservation demanded his surrender to terms, was odious to him … .” [33] He was similarly opposed to repressive measures “because when you use violent repressive measures, you challenge secret resentment; what the victims cannot do in public they do in secret.” [25]

St. Francis realized that reform cannot be a mass produced affair. [10] What did he do? How did he come to head a movement?

By dint of minding his own business! [27]

His first and consuming thought was of doing the thing that should be done by himself – not getting the other fellow to do it, much less of making the other fellow do it against his will. [28]

That is the lesson of the life of St. Francis. That is the nub of the Franciscan way of life. [30] It consists in knowing to the full our responsibilities and carrying them out regardless of cost to ourselves and regardless of what anybody else may do. [43] Thus we end these pages where we began them – with the stress on individual effort. [112]

[Editor’s Addendum: The method of St. Francis surfaced as the Three Point Program in 1936: “The Tertiary resolves (1) To commit no sin of heart or hand for the sake of goods of fortune. (2) To observe moderation in acquiring and enjoying all goods of fortune. (3) To share his goods of fortune with God and neighbor – … .” [12] It is highly reminiscent of Albert Jay Nock’s patient and quiet way of changing society: The only thing that can be done to improve society is “to present society with one improved unit. In a word, ages of experience testify that the only way society can be improved is by the individualist method …; that is, the method of each one doing his very best to improve one.” Or as Voltaire put it in CANDIDE: “Cultivate your own garden.” See Albert Jay Nock, MEMOIRS OF A SUPERFLUOUS MAN, New York: Harper Brothers, 1943, Chapter XVI, Section 1, page 307.]

By Peter Spotswood Dillard

From Number 129

What is the oldest voluntaryist society existing in the continental United States? The answer may surprise you.

Perched atop three mighty mesas in northeastern Arizona, the Hopi Indians have developed a peaceful, nonviolent, and anarchistic society that has endured for at least a millennium. Archaeologists believe that the Hopis are descendants of the prehistoric Anasazi, or “Old Ones,” who occupied the Four Corners region before disappearing in the late 13th century. Hopi tradition teaches that their people ascended into the present world through a hole in the bottom of the Grand Canyon called Sipapuni. They soon met Maasaw, ruler of this world, who divided them into clans and instructed them to find the center of the earth. After wandering for many years, the clans converged on the Hopi mesas. The Bear Clan established the Third Mesa village of Oraibi and required the other clans to demonstrate some skill or special knowledge before establishing their own villages.

There is no “Hopi Nation.” Before the U.S. War with Mexico, when the Mexican government decided to make a boundary around the Hopi country, the “Hopi thought the boundary lines to be so ridiculous that they laughed about it.” [Yamada 20] “The Hopi Nation” is simply a bureaucratic fiction imposed by the Spanish, Mexican, and United States governments in order to deal with a group of people whose ancestors have always lived in a decentralized collection of independent and autonomous villages. As anthropologist Wayne Dennis remarked, “The native system of [Hopi] government is, in effect, a practical form of anarchy.” [Hennacy, 200]. Hopi unity is expressed, not in allegiance to a monolithic Hopi state, but through voluntary commitment to a common spirituality known as the Hopi Way. Even here, the clan structure ensures that spiritual authority does not become concentrated in the hands of any one person or group. Each clan possesses its own expertise or ceremony indispensable to the Hopi Way. Hopi clans are matrilineal, with members of a given clan living in different villages whose inhabitants are also connected by ties of marriage, kinship, and shared history.

Nothing for certain is known about how decisions are made in the village councils and sacred kivas. Nevertheless, a statement from Heremequaftewa of Shungopavi village provides a window onto what is essentially a voluntaryist philosophy:

The Hopi knows it is not right to go about trying to change people who have religious beliefs that are different from their own, and he will not try to force them to follow the Hopi way of life. I would not try to force the young people of the white man to live and believe my way. I will not even force my own young people to be initiated into our religious societies. I will only ask them if they want to join or be initiated into them. If they say “no,” it will be respected. This is the very basis of our life, we must not force other people to change their ways.” [Yamada, 55].

Heremequaftewa’s statement indicates a form of decision making in which no arms are twisted (authoritarianism) and no votes are taken (majoritarianism), but a voluntary unanimity among individuals is sought. Thus, Hopi decision making resembles the traditional village councils of other Southwestern Indian tribes, such as the Pima and the Tohono O’odham. However, it could be best compared to the Quaker “sense of the meeting,” in which the group attempts to find unity, and where the principled dissent of even one individual is enough to prevent the meeting from moving forward on a given matter.

Geographical factors have blessed the Hopis with a strong natural defense against invaders. The name Hopi, which means peaceful, has always been indicative of a people who shied away from war. The Hopi Way forbids fighting and killing, and there have been numerous Hopi conscientious objectors and draft resisters, since they were granted U.S. citizenship in 1924. [Waters, 317, 332; Clemmer, 198; Bonvillain,14] As one of their traditional leaders, Dan Katchongva wrote, the Hopi must not participate in war. “It is the only way we can get right with the Great Spirit. If we turn loose our bow and arrow on anyone, we will receive an even greater tragedy than our victim.” [Yamada, 46] Fortunately, the remoteness of their region and its scant natural resources have discouraged the incursion of greedy aggressors. Six thousand feet above sea level, and accessible only by twisting roads and torturous switchbacks, the mesas are well nigh impregnable fortresses. Rarely have the Hopis resorted to military force, a notable exception being their participation in the Pueblo Revolt against the despotic Spanish in 1680. Perhaps the tragedy at Awatovi, in which men from the villages of Walpi, Shungopavi, and Oraibi attacked and destroyed the Christianized village of Awatovi in 1700, turned most Hopis’ hearts against the use of violence. The Hopi are probably one of the few Indian tribes that have never fought a war against the United States government, nor promised to be subject to its jurisdiction. [Hennacy, 199]

Conflicts are usually resolved without bloodshed. Faced by irreconcilable disagreements, Hopis prefer going their separate ways rather than fighting to the death. An example is the 1906 split at Oraibi between the traditionalists and the progressives. Yukiuma, the leader of the traditionalists, drew a line in the sand and stepped across it, saying that if the progressives could push him back over the line then the traditionalists would leave Oraibi, but that if they couldn’t then the progressives would have to leave. Yukiuma’s supporters lined up behind him, the progressives lined up behind their leader, and a shoving match ensued. Several hours later, Yukiuma was finally pushed over the line. True to his word, he and the other traditionalists promptly left Oraibi.

Concerning property, for centuries the Hopis have practiced a form of anarcho-communism. Lands were owned collectively by various clans, after having been partitioned and distributed by the Bear Clan. Unlike more virulent forms of communism, which regard the institution of private property as an inherent evil to be eradicated by any means necessary, the Hopis never attempted to impose their system upon anyone else. Unfortunately, their exemplary tolerance was not reciprocated.

In 1848, under the Treaty of Guadalupe-Hidalgo, the U. S. government took control of the Hopi lands from the Mexican government. The Hopi Indian Reservation was established “forever” by a Presidential Executive Order in 1882. A few years later, in 1890, without consulting the Hopis, the U.S. Congress passed the Dawes Act, which allotted to each Hopi family 100 acres of land with title of ownership. Since there were only a few hundred Hopi families and allotment sizes were never increased, millions of leftover acres were sold to white settlers for a huge profit. In engineering this spectacular rip-off of the Hopis, Congress apparently forgot that legislation imposed without consent was the prime reason their ancestors declared their independence from Great Britain.

Shortly prior to the land allotment fiasco, the U.S. government had initiated a program of compulsory schooling that affected the Hopis. A number of Hopi parents were arrested, and even imprisoned, when they refused to comply with orders to send their children to government-run schools. Their children were then kidnapped and forced to attend Indian agency day and boarding schools where they were indoctrinated into Christianity and Anglo-American culture. The conflict between the traditional and progressive Hopis began at this time, when some Hopis refused to cooperate, while other Hopis adopted those of the white man’s ways they deemed beneficial. The fundamental moral issue, however, was not whether certain aspects of white culture were beneficial, but whether any Hopi, traditionalist or progressive, should have been forced to adopt them. Certainly none of us would acquiesce to compulsory education by Martians visiting our planet, even if Martian culture were light years ahead of ours!

These depredations culminated in the 1934 government decision to hold a referendum among the Hopis to see if they would endorse a Tribal Council to represent the Tribe, and accept a tribal Constitution, and By-Laws. Much ink has been spilled over whether the minimum 30% of eligible Hopi voters necessary for the vote to be valid actually voted, with traditionalist sympathizers (e.g., Waters) arguing that only 29% voted and their progressive opponents (e.g., Page and Page) using lower total population estimates to counter that 48% voted. Such number crunching is beside the point. No people steeped in the voluntaryism of Heremequaftewa would regard voting as a legitimate form of deciding any serious matter. Sadly, those willing to vote about whether to leave the traditional Hopi Way had already left it. “By staying away from the vote, most Hopis showed their disapproval of the entire process,” even though a Tribal Council “was elected in 1935, and a formal constitution was adopted the following year.” [Bonvillain, 85] In referring to the referendum, Thomas Banyacya, a Hopi traditionalist, noted that “A small percentage of the [Hopi] population voted in favor of it, a slightly larger percentage voted against it, but by far the largest percentage didn’t vote at all. Yet it was forced upon us and its bitter fruits are being pushed down our throats even to this day.” [1957]. [Yamada, 61]

The traditional Hopi argue that the United States government has no authority over them because the Hopis never signed a treaty “acknowledging the U.S. Government’s right of existence.” Nor do they recognize the right of the U.S. government or Christian missionaries to pressure them to follow the white man’s way of life. According to the traditionalists, the Hopi Tribal Council, which was brought into existence as a creature of the U.S. government, “has no authority beyond that granted by their politico-religious leaders,” such as the Kikmongwis and the mongwis. [Clemmer, 190] During the late 1940s, these traditionalists refused to file any claims before the U.S. Government Lands Claim Commission “on the ground that ‘they had already claimed the whole Western Hemisphere long before Columbus’ great-great grandmother was born. We will not ask a white man, who came to us recently, for a piece of land that is already ours’.” Nor would the “assent to having a white man’s court decide whether or not it belonged to them.” [Waters 322, 324]

The traditional Hopi have always had an ingrained “trait of shying way from anything that smelled of government control.” [Waters, 316] Their leaders have protested against Hopi acceptance of government welfare because they believed that the government would take away their land in return for government benefits, and that dependence upon the government would destroy “the faith of the Hopis in their own independence and reliance upon their Creator.” [Waters, 327] Throughout the years, traditionalist Hopi leaders have issued eloquent pleas for self-determination to U.S. presidents and other government officials. When Yuikuma met President Taft in 1911, the message he delivered was that “all he wanted was that he and his people be left alone.” [Miller, 112] Forty years later, Dan Katchongva, a son of Yukiuma, was still delivering the same message:

Our people are a proud people. We have taken good care of ourselves and our land for thousands of years. We do not need any instruction from the Indian Bureau either in government or farming. If they want any instruction from us, we will give it to them without charge. [Yamada, 6].

We want a right to live as we please, as human beings. We want to have a right to worship as we please and have our own land. We don’t want to have someone plan our lives for us, issue us rations, social security or other dole. [Yamada, 9]

Writing on behalf of the traditionalist leaders, George Yamada echoed these powerful sentiments:

Self-determination is sovereignty–self-rule. Self-determination means that a people have the sovereign right to determine and carry out their own destiny without any alien authority to say whether their acts are good for them or not. Under self-determination a people have a right to make their own mistakes and be accounted for them. The Indian Bureau cannot give self-determination to the Hopi. All it can do is get out of the way. For the truth is, the Hopi want to run their own lives, without a boss over them to restrict it. Nor do they want to boss anyone else around, … . [Yamada, 5].

In a Meeting of Religious Peoples, August 4-5, 1955, Hopi religious leaders noted that

The laws of the Great Spirit must be followed even though they might conflict with other [political] “laws.” All the various instructions of the Great Spirit came from “the seed of one basic instruction: ‘You must not kill; you must love your neighbor as yourself.’ From this one commandment to respect and reverence life, came all the other commandments: To tell the truth, to share what we have, to live together so we can help each other out, to take care of our children and old people, the sick and the strangers, friends and enemies, to not get drunk, or commit adultery or lie or cheat, or steal, or covet, or get rich because all of these negative acts cause fights and troubles which divide the community into groups too small to support and carry on the life stream. [Yamada, 18]

In short, “the Hopis strive to live with their families and neighbors according to these ideals of peace and cooperation. They believe that people should help one another, be generous and kind to those in need, and be friendly and good-natured to all.” [Bonvillain, 14] One would be hard-pressed to find a better statement of basic voluntaryist principles.

It would be an exaggeration to say that pure voluntaryism flourishes everywhere on the Hopi mesas today, or that the Hopis are a perfect people. Clearly many Hopis have reached an accommodation with the Tribal Council, the state of Arizona, and the U.S. government. Yet a formidable remnant of Yukiuma’s traditionalist faction survives. More significantly, most Hopi progressives are members of the clans, which continue to oversee collective ownership of tribal lands, to maintain ceremonial life in a highly decentralized manner, and to control access to sacred roads and shrines. The most important decisions are made without voting, and violence is rejected as the solution to all conflicts. Though not voluntaryist in letter, Hopi culture is certainly voluntaryist in spirit. And in all likelihood it will remain so a thousand years hence.

References

• Bonvillain, Nancy. The Hopi. New York: Chelsea House, 1994.
• Clemmer, Richard O. Roads in the Sky: The Hopi Indians in a Century of Change. Boulder: Westview Press, 1995.
• Hennacy, Ammon. Chapter 12, “Yukeoma, The Hopi,” in The One-Man Revolution in America. Salt Lake City: Ammon Hennacy Publications, 1970.
• Miller, Donald Eugene. The Limits of Schooling by Imposition: The Hopi Indians of Arizona. Dissertation presented for the Doctor of Philosophy Degree, The University of Tennessee, Knoxville, June 1987.
• Page, Susanne and Jack Page. Hopi. New York: Abradale, 1982.
• Waters, Frank. Book of the Hopi. New York Penguin Books, 1977.
• Yamada, George. The Great Resistance, A Hopi Anthology. New York: G. Yamada, 1957.

I would like to thank Carl Watner for helpful suggestions that improved this article.

And the simple step of an ordinary courageous man is not to partake in falsehood, not to support THE LIE! Let the lie come into the world, even dominate the world, but not through me. But writers and artists can achieve more: they can CONQUER THE LIE! In the struggle with falsehood, art has always been victorious, always wins out, openly, irrefutably for everyone! Falsehood can hold out against much in this world, but not against art.

And as soon as the lie is dispersed, the repulsive nakedness of violence will be revealed, and violence will collapse in impotence.

That is why, my friends, I believe that we are able to help the world in its white-hot hour of trial. We must not reconcile ourselves to being defenseless and disarmed; we must not sink into a heedless, feckless, life – but go out to the field of battle.

Proverbs about TRUTH are well-loved in the Russian language. They express enduringly the immense folk experience, and are sometimes quite surprising:

“ONE WORD OF TRUTH OUTWEIGHS THE WHOLE WORLD.”

And it is here, on an imaginary fantasy, a breach of the principle of the conservation of mass and energy, that I base both my own activity, and my appeal to the writers of the whole world.

[Editor’s Note: The LIE is any threat or violence which causes a person to go against his or her individual conscience. In my anthology, I MUST SPEAK OUT (p. 201), Solzhenitsyn answers the question: “What does it mean, not to lie? … It simply means: not saying what you don’t think, … “; not supporting what you don’t really support; in other words, not giving out false appearances. These excerpts are from Aleksandr Solzhenitsyn, THE NOBEL LECTURE ON LITERATURE (1970), New York: Harper & Row, Publishers, 1972. From Section 7 (Concluding Remarks), pp. 37-38; freely paraphrased and combined from the translations by Thomas P. Whitney and others found on the worldwide web. Also see Os Guinness, TIME FOR TRUTH, Grand Rapids: Hourglass Books, 2000, p. 19.]

by Carl Watner

from Number 129

I’d like to begin my remarks this afternoon by giving a little historical perspective to homeschooling. I think we often forget that parent-directed education of children was the norm throughout most of American history. In the days before mass public schooling, a large percentage of this country’s children were educated at home, or in private or religiously-affiliated schools chosen and paid for by their parents. The right to home school, to engage a private instructor, or to send a child to a private school all stemmed from the parents’ responsibility to care for and teach their children. 17th and 18th Century colonists and 19th Century pioneers in North America conceived of schooling as an extension of the family, the Church, the apprentice system, rather than as a function of the State. Families simply assumed responsibility for their own and were not required to obtain permission from local governments to educate their children at home, and most would have been incensed at the idea.

All that changed during the 20th Century. Instead of focusing on acceptance of personal and family responsibility, today public education is based on the concept of compulsion. “By means of property taxes, sales taxes,” income taxes, and compulsory attendance laws people are forced to pay for schooling, whether they have children or not, and whether they agree with what children are taught in government schools. Since I accept personal responsibility for my family and children I chose homeschooling long before I was ever married or even met Julie. Both from my own personal experiences in public schools, and from philosophical reflection, I concluded that the government’s public schools were a moral and practical failure, and wanted nothing to do with them

My own disinclination against the public schools came to a head in my 11th year of public schooling. I felt I was being indoctrinated in collectivist and statist ideas. Consequently, I skipped the 12th grade and moved on directly to college. That is why I can truthfully say that I never received a high school diploma. I might add that my experiences in college were no different.

My first exposure to the idea of homeschooling was probably through the books of John Holt, especially his TEACH YOUR OWN, which was published in 1981, and which I first read in 1982. In looking over my copy of this book, just last month, one passage that I had highlighted almost 25 years ago jumped out at me. John Holt wrote that “We can sum up very quickly what people need to teach their own children.” First of all, they have to like them, enjoy their company, their physical presence, their energy, foolishness, and passion. They have to enjoy all their talk and questions, and enjoy equally trying to answer those questions. They have to think of their children as friends, indeed very close friends, have to feel happier when they are near and miss them when they are away. They have to trust them as people, respect their fragile dignity, treat them with courtesy, take them seriously. They have to feel in their own hearts some of their children’s wonder, curiosity, and excitement about the world. And they have to have enough confidence in themselves, skepticism about the experts, and willingness to be different from most people, to take on themselves the responsibility for their children’s learning. [p. 57]

I think that passage speaks eloquently about the relationship Julie and I have had with William and our other children, and it highlights our enjoyment and passion for homeschooling them.

Shortly after William was born at home I wrote an article titled “It’s Only Just a Beginning”: Reflections on Being A New Father. William, as I present you with your homeschool graduation diploma this afternoon, I know you realize you are moving onward in life. In that article I observed that it was my hope that you would learn to think independently and logically, and above all, to act honestly and with integrity. I believe you have accomplished that and I am proud of that accomplishment and everything else you have achieved in your first 18 years of life. In homeschooling you, your mother and I have done our best to arm you with the truth because the truth is the most powerful thing in the world. As I give you this diploma I hope you always cling to the truth and remember that one word of truth outweighs the world. Congratulations William, and keep up the good work!

by Carl Watner
From Issue 128 – 1^st Quarter, 2006

At the conclusion of my article on voluntaryism and the American Revolution, I wrote that a consistent voluntaryist would have been inclined to take a position of strict neutrality with respect to both the American and British sides, and would have refused to obey the edicts of either. “One would have to say, ‘A plague on both your houses’.” In his book, PARTISANS AND REDCOATS: THE SOUTHERN CONFLICT THAT TURNED THE TIDE OF THE AMERICAN REVOLUTION (New York: William Morrow, 2001) Professor Walter Edgar explains that the Revolution in South Carolina represented “nothing less than the first American civil war—when neighbor battled neighbor, Tory fought Rebel, and families were sundered from within.” [Book flap]

Discussing the social and political conditions on the Carolina frontier, Edgar notes that “[a]fter 1771, for all practical purposes, royal government ceased in South Carolina.” [p. xv] A number of extralegal organizations, which originated in the political capitol of the colony, eventually evolved into “the independent government of South Carolina.” However, before that occurred, Edgar points out that the sentiments of the large majority of backcountry inhabitants were simply those of wanting “to be left alone.” [p. 32] “When forced to make a choice [about whether to support the Rebels or the Tories], backcountry folk did, albeit reluctantly in many cases. If they had had their druthers, they would just like to have been left alone.” [p. 30]

Edgar adds that “The public apathy was unsettling. Not many citizens took the trouble to exercise their right to vote. In the fall of 1776, elections for the Second General Assembly (1776-78) were held within a short time after the arrival of the news of the signing of the Declaration of Independence. Despite this momentous news… the voter turnout was abysmal. [S.C.] President Rawlins Lowndes bemoaned the fact that some members of the Second General Assembly received only two or three votes; in some districts the only ballot casts were by the local polling officials. … Thus, the important work [undertaken by the Second General Assembly] of creating a permanent state constitution fell to men who could hardly claim to be representing the people. And on a number of occasions when the assembly met, there were not enough representatives present to make up a quorum and conduct business.” [pp. 40-41]

The Second Assembly also passed a law requiring “former royal officials and others of dubious loyalty to swear an oath of allegiance to” the newly created government. This “law was ignored,” and so, too, was another law (passed on March 28,1778) which demanded that “every free male inhabitant of the state to renounce support of the king and Parliament and to swear true allegiance to South Carolina.” Those who refused would be prevented from voting, holding office, suing in the courts, and even owning land, “or practic[ing] his profession. If a man left the state to avoid taking the oath, he would be considered a traitor and executed if he returned to South Carolina. As the deadline approached for registering the oath, government officials discovered to their dismay that the overwhelming majority of the people simply could not be bothered…. The deadline for compliance was extended several times, but not even avowed patriots bothered to take the [test] oath.” [pp. 41-42, emphasis added]

As the fighting progressed in South Carolina, the British took the attitude “that those who are not with us, are against us.” [paraphrase from pp. 123-124] This eventually created a backlash among the country folk who “had just wanted to be left alone to plow their fields and raise their families.” [p. 44] The British imposed their own test oath after their successful invasion of Charleston. British atrocities, ill-treatment of civilians, and the pillage, burning, and confiscation of their homes, barns, and personal property eventually roused the ire of these frontier people. By early 1780 there “was no civil government in South Carolina.” The governor “was in exile in North Carolina,” Charleston had fallen to the British, and only “[a] few military men, such as Francis Marion …,” had escaped to the coastal swamps, [p. 67] “In the absence of established authority, these backcountry soldiers decided to select their own leaders. They could not be concerned about official commissions from the Continental Congress or from Governor Rutledge [in North Carolina]. Their families were threatened and they needed to act….” [p. 68] This led to the formation of guerrilla bands that fought and harassed the British regulars, until the British were forced to retreat after their defeats at King’s Mountain, North Carolina in October 1780, and at Cowpens, South Carolina in January 1781.

Dr. Edgar’s remarks are some evidence that voluntaryist sentiments actually existed at the time of the .American Revolution. Politicians, elected officials, and those who look to government to provide their livelihood, all, naturally support one State or another. However, those who support themselves and their families, and who do not desire to use State aggression to their advantage, would much rather just “be left alone.” When civil war breaks out between two States claiming the same land, at least some of the inhabitants will intuitively exclaim “a plague on both your houses!”

by Carl Watner

From Number 127

I recently had occasion to explain to a customer that very few people understand how the stealing commandment (“Thou shalt not steal”) applies to taxes. Since our “contributions” to government are not voluntary, that means they are coerced. If they are coerced, that means that taxes are a forcible taking. Q.E.D.: taxes are theft. However simple the logic, since most people view government as a legitimate and necessary institution, whatever “taking” the government performs must not be classed as “stealing” because that would contradict their assumption that government doesn’t steal property, but (in their minds) protects it.

I also explained to the same customer that even though government does a horrible job of spending the money it “collects,” the question of “how” it spends the money (wisely, foolishly, etc.) is really not the issue. The moral question (Is it right to steal?) is the fundamental concern. Once the government has the money, “collected” from millions and millions of people, argument will necessarily follow as to what the money should be spent on; and then having agreed the money should be spent on a given project, arguing over how it should be doled out to achieve its intended purpose.

Anyone who has listened to the news knows there is endless bickering among politicians, among constituents, and among lobbying groups about the government’s budget. Such squabbling represents the attempt to spend “other” people’s money on projects to which they would not ordinarily contribute. Whether the division of the spoils is decided by majority vote, or a political bribe, or a threatened veto, the point to understand is that the rightful owners of the money being spent no longer have authority over it. Some other person or group of persons has taken control. Thus, while politicians, pundits, and media commentators regularly question how the money is spent, they rarely – if ever – questions the “moral” authority under which the government demands it, and, which if the money is not paid over, they imprison the protester and/or confiscate his property.

Our whole culture is permeated with this sub-stratum of force. For example, in a December 2004 “Evenings at FEE” speech, Harry Browne noted that From beginning to end, public education is organized on the concept of compulsion. By means of the property tax, sales tax, and state income tax people are forced to pay for schooling whether they have children or not, whether they agree with what the schools are doing or not. The illusion of having influence through elections, PTA meetings, parent nights, or other legal avenues doesn’t change the truth: we are forced to send our children to particular schools where they are educated and indoctrinated in a particular way. While these points are correct and substantiate my claim that we have a culture of force, it ought to be duly noted that children who are “forced” to go to government schools, are taught and (most) accept that government should be responsible for “guiding” and “directing” what happens in society. How many government (or even non-state) school students do you know that have ever been exposed to the idea or could imagine a stateless society where all education was conducted on a private, voluntary basis?

Another event illustrating the abundance of force infecting our society is the government orchestration of relief efforts for victims of the December 2004 tsunami. Not only did domestic governments of every stripe and color get involved, but even the United Nations had to take a hand. Now don’t get me wrong. If people want to voluntarily contribute to disaster relief that is all well and good with me. But on what basis should government(s) coercively monopolize (or even have any role, whatsoever) in spending taxpayers’ money on relief aid (either here or abroad)? Some miserly folks might never contribute a penny to charitable relief; but obviously some people contribute even after having “paid” their taxes. The point I am trying to make is that most people (by far the large majority of the population in every country) have lost any concept of what it means to respect other people’s property. They regularly use the political means to steal, and never give their actions a second thought. They assume that is the way things “ought” to be.

The fact is that force abounds throughout our society. Consider the operation of most of our roads, post offices, libraries, police protection, judiciary services, and monetary system. They are overwhelmingly funded, controlled, and operated by some level of government. My point is not that we should not have these services (at least if people desire them, and are willing to pay for them) but that neither should government be responsible for them, nor its coercive powers be directed toward supporting them. It is not the ends, such as the schools, roads, libraries, etc., that people who believe in a voluntary society are opposed to, ‘per se’, but rather to the means, that is, the manner in which these activities are paid for and supported.

The fact of the matter is that the use of force destroys morality. The two are incompatible because where force exists, the opportunity no longer exists to make a “right” or a “wrong” decision. One’s choice is reduced to submit to the government dictates, or risk the wrath of its enforcement agents.

Look at the increasing amounts collected by taxation. Look at the numbers of people killed by government, either domestically or abroad in foreign wars. Is there not some connection between the increasing use of government force in our society and the amount of crime perpetrated by individuals? If it is right for the government to “steal” and “kill,” then isn’t it right for individuals to pursue the same actions on their own? My suspicion is that the amount of dishonesty, thievery, mugging, kidnapping, etc. in our society, is directly tied to the increasing societal reliance upon governmental force.

Governments help set the moral tone in society, and the corruption we find there is often mirrored in the personal behavior of its citizens. Thus, there is reason to believe that most of the problems (criminal, environmental, economic, political, etc.) we encounter today stem from the injection of force into our social relations. The use of compulsion by governments among peaceful people is wrong; it is a violation of their right not to be molested by others; and its results are always unsatisfactory. Or as Harry Browne concluded in his speech, “Force never works.”

by Peter Ragnar
From Number 127

Are there any among us who would not decry the repugnancy of slavery? I am assuming, of course, that you have reached a higher station in your moral evolution than members of the common mob. Yet, isn’t it likely that the lowest serf, imprisoned as a nameless unit of the proletariat, abhors his forced servitude? Like a prisoner gazing beyond his bars, does not the indentured servant, in his most hopeful of moments, dream of freedom? I grant you it is possible some mindless automatons with lobotomized souls would equate their slavery with fate. Such people lack enough vitality in their being to even protest a perfunctory “I wish I were free,” and they are certainly not endowed with a single drop of originality in seeking it.

I salute you – the self-owned, the self-reliant, the independent heroes of freedom! You have refused to submit and surrender to the iron boots of slavery. You eschew tyranny and refuse to sanction the officious, pigheaded, bureaucratic assaults and intrusions upon your life. To you these assaults are as impotent as rag dolls. Yet they continue each day, fed by the mentality of the mindless mob granting what they have no right to grant, sanctioning what no one can sanction, and legitimizing what no one can make legitimate.

If it were not for a swarm of obedient servants, myriads mired in the morass of the mob mentality, even a Caesar or a Napoleon would be reduced to flaccid, vagrant nobodies. For whom is a Caesar, a Napoleon, or an Alexander the Great without their armies, their hordes of servants, and the greedy solicitous masses humbly beseeching them for perks?

Just imagine a Napoleon in his threadbare uniform, standing on a box in the city square and shouting political slogans, much like an itinerant evangelist seeking converts by wildly proselytizing like a madman. The local citizenry give him a wide berth, as one would sensibly do to anyone so afflicted. Such a clown could hardly be taken seriously, let alone obeyed. You would not grant such a one respect, nor approve of his desire to impose his will. Nor would you, as the case is today, sanction the will of the larger mob over the individual who does not wish to be enslaved. Grant no man the authority to make you his slave! Appoint no one your guardian. Accept no handouts from those distributing stolen property. Commit no criminal acts by accepting monies extorted from others.

When a government is installed by the voting majority it imposes a tribute upon all, known as taxation. Confiscations of property and imprisonment await those who refuse to pay voluntarily. Taxation, administered in this manner, is clearly theft. Morally, you have no right to be a co-conspirator in the aggressing and extorting of monies, or properties, or in the forced conscription of your own or your neighbor’s children being compulsorily sent to “school.” If you vote to sanction the unsanctionable, to legitimize the illegitimate, you criminalize yourself. And does your vote really matter (except as evidence that you accept the governmental system)? You only exchange one candidate for another, while the tyrant (the institution of government) remains the same!

Oh yes, you may agree that you have been burdened by government, and so seek solace by voting for change. You may feel that you are choosing the lesser of two evils. Here I implore you to bear in mind that the lesser of two evils is still evil! To endorse a little evil is similar to accepting a little carcinoma. Evil is still evil! This is more than the simple sin of looking in the other direction as a co-worker steals from his employer. This is your sanction of murder and theft! This is your approval of extortion! This is your endorsement of slavery! Can you cast a vote in good conscience that will result in the oppression and enslavement of others? When you vote for a candidate, you are in fact saying it is perfectly right for him to force your neighbor to submit to your desires — desires which can be enforced at the point of a gun. Except in distancing yourself from the crime, is there really any difference between hiring someone to rob your neighbor and committing the act yourself? Even more serious is the fact that, by voting, you have essentially hired a hit man to kill the “others” with whom you disagree. Of course, if you hired the Mafia to do the dirty work, you’d go to prison if you were caught. You escape responsibility by voting and having government agents act on your behalf. The crimes are identical. The only difference is that the first method is “politically” approved and legal, and the second is not.

Bear in mind, laws of convention made and enforced by the collective are not like the laws of nature, which, when violated, extract perfect retribution. Therefore, in the furtherance of my own evolution, I can only say “NO” to ALL the candidates. So you see, in a sense I am casting a “NO” vote against all of them. My choice is simply “None of the Above!” One candidate may steal from me more or less than the other, but that’s not the point. The basic premise, for honest conscious minds, is that stealing cannot be legitimized. Your integrity should never allow you to cast a vote. Do not sanction your own enslavement. Grant no man the authority to make you his slave. Grant no man the power to enslave your neighbor, grant no man the sanction to steal or murder in your name, lest you cause yourself irreparable moral damage. When asked how one could be a free man and yet a slave, the ancient Athenian sage, Diogenes, answered, “Simply, by the number of times you say master.” Diogenes, who recognized no master, always embraced a NO vote. He argued that Athenians, who voted by casting various-colored beans into a receptacle, should “Abstain from beans.”

Once, while sunbathing by the river, Diogenes was approached by Alexander the Great. Alexander’s shadow loomed over the reclining, naked Diogenes. “Do you know who I am?” asked Alexander. “That’s not the question you should be asking,” retorted Diogenes. “You should be asking if you know who you are.” Alexander, like all avaricious, unctuous politicians, was asking the same banal and prosaic question, namely: Do you recognize my authority to control you? Do you acknowledge my power over you? Diogenes’ refusal to kowtow to Alexander simply meant Diogenes recognized no authority except “the primacy of his own right judgment.” Freedom, in Diogenes’ view, was the “absolute dominion over his own will. This was the inner realm over which no outside force, not even an Alexander and all his soldiers, had any power, whatsoever.”

Regaining his composure, Alexander boasted, “I’m Alexander the Great!” Unimpressed, Diogenes, in a dismissive tone replied, “So, be Alexander the Great!” No one had ever spoken to Alexander with such self-assured authority before. In fact, no one could, except the individual who knows that no person can truly control another. Now feeling more like the average solicitous bureaucrat, Alexander adopted a more servile attitude, offering, “Is there anything I can do for you?” Casually waving his hand, Diogenes replied, “Move over. You’re blocking my sunlight.”

So what are you waiting for? You should dismiss these pompous pinheads with a wave of your hands, instead of using them to pull the lever in the voting booth.

You were born free and you should remain free. You need no one to speak for you. You require no guardians. You have no need for an elder brother watching over your shoulder. You will learn from your own mistakes and grow strong by them. You require no handouts. For it is only by your own hand, and by voluntarily trading with others, that you can honestly obtain all the fruitage for the greater life. You may fail or you may succeed, but only so long as you grant no man the authority to make you his slave may you pursue your quest for a more bountiful life.

While working on my anthology, NATIONAL IDENTIFICATION SYSTEMS: ESSAYS IN OPPOSITION, my wife and I discussed these questions because birth certificates are one of the primary ways in which the State counts and controls its citizens. As the laws are written in most states, it is the obligation of the parents, the attending physician, or the midwife, to “register” the birth of a child with State authorities. Their failure or refusal to do so will possibly make them subject to some sort of criminal penalty for “failure to register a birth.” However, so far as I know, there is no crime in “not having a birth certificate.” In other words, there is no law that operates upon the person who is born to have a birth certificate. The penal sanctions are upon those who witness the birth, not upon the newborn.

In stateless societies birth certificates would generally be a private or religious matter. Parents might choose to make a private or church record of the births of their children, or they may chose to make none at all. Only since the rise of the nation-state in the later Middle Ages has it occurred to anyone that there might be a reason to have governments document human births. In many areas of the world, for many centuries before the official beginning of the United States there was never any requirement that births be registered with the political authorities. Under such circumstances, it was never a crime not to report or register a birth. When it did become a crime, one might have asked: Who has been harmed by not reporting a birth or obtaining a birth certificate for one’s newborn? Failure to report a birth can thus be seen as a violation of a “political” statute, but it is clearly not a “real” crime. It is certainly not a crime against God’s law or Nature’s Law not to have a birth certificate, and that being the case, it certainly cannot be a real crime to fail to report the birth to the political authorities.

What happens when the parents of a newborn apply for a birth certificate? What is the moral propriety of a parent or guardian obtaining a state-issued birth certificate for a minor? Does getting a birth certificate violate any of God’s laws or Nature’s laws? My answer would be: “Yes.” Which ones, you might ask? For starters, try Commandment One: “Thou shalt have no other Gods.” What is your country’s government trying to do when it requires that every birth be registered? It is playing God, demanding that each citizen bow before the State. Possession of a birth certificate is a prerequisite to receiving any sort of privilege from the State: whether it be a driver’s license, marriage license, contractor’s license, etc. (I might add that none of these licenses are inherently necessary to the activities which they authorize. One can competently drive, marry, and build without a license from the State.)

In short, the birth certificate is the basis for the state’s monopolization of identification. It is literally “a license to live,” issued by the government. The birth certificate is an attack on every person’s right to exist anywhere in the universe. Without a government birth certificate, one encounters difficulty in leaving and returning to one’s country of origin. A person without a birth certificate will ultimately be seized by government authorities for violating their laws concerning personal identification. A parent by complying with State laws governing birth certificates is trying to play God with his infant’s life, by putting the child on the altar of the State. The birth certificate labels the infant as a member of a national group whose members are subject to paying taxes and to the military draft

Are we “owned” by the State or is each individual a self-owner? Isn’t everyone “endowed by their Creator with certain inalienable rights”? Or do children need to be registered with the government of their native country in order to “legally” exist and receive whatever privileges and benefits that government condescends to grant them? Isn’t the birth certificate really a badge of slavery?

Parents by your actions, you make this choice for your children.

 by Carl Watner
From Issue 124 – 1^st Quarter, 2005

[Author’s Introduction of February 2004: This hitherto unpublished essay was first written in June 1983, and then revised in August of that same year. It sat for two decades (receiving only limited private circulation) until it was read by Peter Ragnar of Avalon Mint and Roaring Lion Press. At Peter’s request it was re-edited with a view to posting on the world wide web. The author wishes to thank Alan Koontz (editing of 1983) aid Julie Watner (editing of 2004) for their timely assistance in commenting on this essay]

Voluntaryism is a dual doctrine, having both a positive and a negative side. As a brand of anarchism it is the doctrine that all coercive government (what most people would refer to as “the State”) should be voluntarily abandoned; that all invasions of individual self-ownership rights should cease. This is its negative side. Its positive side is that all the affairs of people should be conducted on a voluntary basis. It does not argue for the specific form that voluntary arrangements will take; only that the sovereignty of the individual must remain intact, except where the individual coerced has already aggressed upon the sovereignty of another non-aggressive individual.

To voluntaryists, this dual doctrine represents a means, an end, and an insight. The end, predicated upon a theory of self-ownership and just property titles, is a peaceful anarchy, an all voluntary society. All the affairs of people, both public and private, should be carried out by individuals or their voluntary associations. The means to reach such an endstate must be consistent with the goal sought. As shall be demonstrated, it is in fact the means that determine the end. So only voluntary methods of persuasion, education, and nonviolent resistance to State criminality may be used to bring about voluntaryist goals. People cannot be coerced into freedom. Finally, voluntaryism is a realization about the nature of political society, viz., that all States are grounded upon general popular acceptance and require the cooperation of their victims.

These three aspects of voluntaryism mutually reinforce each other. The very goal of an all-voluntary society suggests its own means. The attempt to use governmental or political processes to reform or abolish the evils of coercion is not a voluntaryist means because it rests on coercion. The distinguishing marks of voluntaryism — that it is at once both nonviolent and non-electoral in its efforts to convince people to voluntarily abandon the State — set it apart from all other methods of social change. The voluntaryist insight into the nature of political power does not permit people to violently overthrow their government or even use the electoral process to change it, but rather points out that if they shall withdraw their cooperation from the system, it will no longer be able to function or enforce its will.

The voluntaryist spirit is thus an attitude of mind or a sense of life, if you will, which animates those engaged in the struggle for the recognition of self-ownership rights and the demise of the State. It is the passionate, disinterested love of justice for its own sake, regardless of the consequences which the struggle brings to one personally. It is a knowledge that if one takes care of the means that the end will take care of itself. It is an understanding that the morality and principles of voluntary interaction with other self-owners is the only practical manner of living life upon this earth. It is an epistemological rejection of violence, a knowledge that coercion can never rationally convince. Come what will, wherever the chips may fall, voluntaryism seeks the perfect way but it differs from other philosophies of life in seeking it with utter disinterestedness. Right means are an end in themselves, their own reward.

There is a great deal of affinity between what has been called “the aristocratic spirit” and the voluntaryist spirit. Writing in the March 1920 issue of THE NORTH AMERICAN REVIEW, Hanford Henderson defined the former “as the love of excellence for its own sake, or even more simply as the disinterested passionate love of excellence. The aristocrat, to deserve the name, must love excellence everywhere and in everything.” Continuing on, Henderson wrote:

He must love it in himself, in his own beautiful body, in his own alert mind, in his own illuminated spirit and he must love it in others; must love it in all human relations and occupations and activities, in all things in earth or sea or sky. And this love must be so passionate that he strives in all things to attain excellence, and so tireless that in the end he arrives. But not even the hope of Heaven may lure him. He must love and work disinterestedly, without the least thought of reward, enamored only of the transcendent beauty of excellence, and quite unregardful of himself.

Both the aristocratic spirit and the voluntaryist spirit demand the highest effort of the individual. It is a contradiction to say that aristocracy or voluntaryism asks for privilege, which can only be upheld by violence. Coercive grants of power are contrary both to the doctrine of perfection and voluntary means. What the aristocrat and the voluntaryist want is that people come to share their attitudes toward life. Neither “may accept nothing which others may not have upon precisely the same terms, and the terms are unremitting, passionate effort…. It is not a matter of birth, or occupation, or education. It is an attitude of mind carried into daily action. …”

Terence MacSwiney, an early 20th Century Hibernian patriot, referred to the voluntaryist spirit as “a moral force”, “that great virtue of mind and heart that keeps a man unconquerable above every power of brute strength.” “A man of moral force is he who, seeing a thing to be right and essential and claiming his allegiance, stands for it as for tne truth unheeding of any consequence. It is not that he is a wild person, utterly reckless of all mad possibilities… and indifferent to any havoc that may ensue. No, but it is a first principle of his, that a true thing is a good thing, and from a good thing rightly pursued can follow no bad consequence. And he faces every possible development with conscience at rest — it may be with trepidation for his own courage in some great ordeal, but for the nobility of the cause and the beauty of the result that must ensue, always with serene faith.’

Although neither Henderson nor MacSwiney would have considered themselves anarchists, they did realize that this mind cast made for a laissez-faire attitude, particularly in such fields of endeavor as education and industry. The aristocratic spirit seeks excellence in variety and resists the tendencies towards enforced uniformity in all areas of life. It looks for a multiform and varied excellence. “The aristocratic world is not one of dead levels, but a world of varied interests and constant promise and unfaltering progress. It is, in a word, the world of evolution.” In fact, it is only in a voluntaryist setting that the aristocratic spirit can truly operate. The attempt to coerce must inevitably vitiate such a spirit. For as Henderson concludes, the teaching that the end justifies the means is not at all in harmony with the aristocratic spirit. “The whole event must be excellent, the means as well as the end. … It is only in the disinterested quest of excellence that anything notable can be accomplished…. Disinterestedness is the essential condition of success.”

MacSwiney, too, understood the importance of means and ends in the Irish struggle against England. “A fight that is not clean-handed will make victory more disgraceful than any defeat.” He maintained that Ireland could not win her independence by “base methods” and that no physical victory could compensate for a spiritual defeat. He also noted that every sphere of a man’s life is interconnected with the rest. Therefore he claimed that the secret of strength was the development of individual character in every activity of life. In an interesting comment on means and ends, he noted that “the middle of the day has a natural connection with the beginning of the day and the end of the day, and in whatever sphere a man finds himself, his acts must be in relation to and consistent with every other sphere…. One cannot be an honest man in one sphere and a rascal in another. … Everything that crosses a man’s path in his day’s round of little or great moment requires of him an attitude towards it, and the conscious or unconscious shaping of his attitude is determining how he will proceed in other spheres not in view.”

Voluntaryism relies heavily on the means-end insight to justify its own position. Indeed, without any formal guidelines as to the shape that an all-voluntary society will take, voluntaryism necessarily concentrates exclusively on the means. Voluntaryism is means-oriented, not goal-oriented because all it objects to is the initiation of coercion against the non-invasive person. So long as the means are peaceful, respectful of self-ownership and property titles, the ends cannot be criticized from the voluntaryist perspective. This is not to imply that the only standard of judging human behavior is whether or not it is voluntary. Certainly some behavior may be irrational, vicious, immoral, religious, irreligious, (etc., etc.) but the first question the voluntaryist asks is: “Is it truly voluntary?” The voluntaryist spirit attacks the State on precisely this basis: although certain government goods or services may be essential, it is not essential that they be provided by government. Whether we object to what governments do (i. e., the provision of whatever product or public service, whether it be public schools, the post office, etc.) is beside the point. Voluntaryists oppose the State because it relies on force for its very existence. We oppose the State because of its means, regardless of its ends.

The means orientation of voluntaryism is not unlike the concept of disinterested attachment associated with the aristocratic spirit. Similarly, it relates to the Hindu doctrine of nonattached action which relies on the paradox “that one cannot travel on the path unless one has become the path itself.” Indeed, although one must have an ultimate goal and destination in life, one’s attachment to it eventually becomes irrelevant and disappears. One’s concern must be with the next step rather than the summit. Only in such a fashion can the exhilaration of the climb become an end in itself rendering unimportant the attainment of the peak. That is why the means to the goal become more important than the goal itself and why the means then become the test of progress. “To travel on the proper path” is more important than arriving at one’s destination. Thus full effort becomes the measure of victory rather than the attainment of one’s goal. The effort is within our power and control; the end is not.

The means-end insight encompasses many important points, the least of which is the commonplace observation that the means one uses must be consistent with the goal one seeks. It is impossible in the nature of things to wage a war for peace or to fight politics by becoming political. Gandhi, who might be considered one of the true aristocrats of all times, understood that “there is a great mystery concealed in the fact that the means are more important than the ends.” As he wrote:

They say means are after all means. I would say means are after all everything. As the means, so the end. There is no wall of separation between means and ends. We have limited control over means and some over the ends. Realization of the goal is always in exact proportion to that of the means. … Our progress towards the goal is always in exact proportion to the purity of the means. This method may appear to be long, perhaps too long, but I am convinced, it is the shortest.

Since the means are the only things we have to work with, they are at least as important as the actual ends we seek. Means to be means must be within our reach. As John Dewey explained it, “the end is merely a series of events viewed at a remote stage and a means is merely the series viewed at an earlier one.” Means must be viewed as intermediate steps but because of this the one closest to us must be considered the most important. The most important means is the next one, the next step in the series of intermediate actions we take to finally arrive at our destination. If we take a false route, even though we know where we wish to go, we will never get there. To finish our journey we must not only begin it but we must begin it in the proper direction and this means attention to the means. “To reach an end we must take our minds off from it, and attend to the act which is next to be performed.”

The idea that the ends can justify the means actually has the process in reverse order. Since the ends pre-exist in the means (like begets like, we shall reap as we have sowed), no end can ever justify a means. What actually happens is that the means not only justify what they accomplish, but they guarantee it. ‘What today is, makes tomorrow what it shall be.” As Gandhi and many others have said: “take care of the means you employ and the end will take care of itself.” The Rom (the gypsies) have a saying that “the road leading to a goal does not separate you from the destination; it is essentially a part of it” and this readily explains why impure means must result in an impure end.

Different means must inevitably bring about different ends for the simple reason that they lead one down different paths. For the voluntaryist concern with an all-voluntary society, this necessitates both eschewing the electoral process as well as revolutionary violence. Neither of these routes can even approximate voluntaryist goals because they depart from the voluntaryist spirit. The existence of a voluntaryist society depends on a change in attitude, an improvement in the moral tone of the people who comprise it. Therefore our means must be voluntary, for moral ends can only be attained by moral means. Our means must be as pure as our ends.

Emma Goldman, in her analysis of the Russian Revolution, written in the early 1920’s, realized that “today is the parent of tomorrow.” The means used to prepare for the future becomes its cornerstone and therefore she held that the means used to bring about social change must always harmonize with its purpose:

There is no greater fallacy than the belief that aims and purposes are one thing, while methods and tactics are another. This conception is a potent menace to social regeneration. All human experience teaches that methods and means cannot be separated from the ultimate aim. The means employed become, through individual habit, and social practice, part and parcel of the final purpose; they influence it, modify it, and presently the aims and means become identical…. The whole history of man is continuous proof of the maxim that to divest one’s methods of ethical concepts means to sink into the depths of utter demoralization.

The voluntaryist holds that “the only way to freedom is ‘by’ freedom.” This path does not dictate what specific form the economic system of voluntaryism will take. Its only guidelines are that the resultant system be voluntary, which already implies a respect for self-ownership and just property titles. A regime of proprietary justice allows all economic systems to compete on a voluntary basis and there is no reason why voluntary cooperatives could not exist side by side with voluntary communes or voluntary capitalist companies. How people choose to conduct their voluntary affairs in the absence of the State is up to them.

In advocating an all voluntary society, voluntaryists place the burden of proof on those who wish to justify any form of the coercive State. The advocate of any form of invasive coercion — State or non-State — is in a logically precarious position. Coercion does not convince, nor is it any kind of argument at all. In fact, the initiation of invasive force is a confession of the failure of the invader’s persuasive powers. As William Godwin said, “if he who employs coercion against me could mould me to his purposes by argument, no doubt he would. He pretends to punish me because his argument is strong, but he really punishes me because he is weak.”

The epistemological bias against violence is an essential part of the voluntaryist spirit. Those in the position of initiating violence are in a morally and logically indefensible position. As Godwin added, “Force is an expedient, the use of which is much to be deplored. It is contrary to the nature of the intellect, which cannot but be improved by conviction and persuasion. It corrupts the man that employs it, and the man upon whom it is employed.” The burden of proof rests on the advocates of violence (or the State) because “liberty, or the absence of coercion, or the leaving of people to think, speak, and act as they please, is in itself a good thing. It is the object of a favorable presumption. The burden of proving it inexpedient always lies and wholly lies on those who wish to abridge it by coercion.”

Voluntaryist arguments proceed against State coercion by criticizing the means, regardless of the ends. Health care or vaccination may be important, but if they are to be achieved by force (the means) they “ipso facto” become tainted. If those who advocate compulsory vaccination or State health care must rely on force to accomplish their goals, then there is something drastically wrong with their ends. Vaccination or health care is either good or bad. Its goodness removes the need for compulsion and its badness destroys the right to coerce those who oppose it. Coercion never convinces, never brings about a change of mind.

Similar arguments may be applied against the State itself. Either it is good or bad. Its goodness should avoid the need to apply invasive force (for it should be possible to persuade people of its goodness) and its badness already speaks for itself. If a government cannot rely wholly on voluntary support, then it deserves not to exist. Statists, in their anxiety to coerce others, already demonstrate their own lack of faith in the prescription they suggest.

On the other hand, the voluntaryist spirit is permeated with peaceful, nonviolent means. Voluntaryism is certainly not the cure all or end all of social evils, but to the extent that people can be persuaded to embrace the voluntary principle, it offers the best of all possible worlds. Voluntaryism is not to be compared with the model of perfection, it is only offered as the most satisfactory among competing theories.

Voluntaryists do not operate on the principle that everyone necessarily knows his or her own best interest, but only that everyone should have the right to pursue his or her interests as they deem best. “What is being asserted is the right to act with one’s own person and property and not the necessary wisdom of such action.” So long as you “do your own thing” with your “own” person and property you in no way violate the spirit of voluntaryism.

The claim that governments have a monopoly on knowledge is implicit in the arguments of statists. However, given the fact that every individual person is a unique human being, it is highly unlikely that any monopolistic government could engineer or plan a society better than the outcome of the workings of the voluntary principle. Governments have no exclusive monopoly on knowledge or any exclusive monopoly of the knowledge of facts which would enable them to run an economy. In fact, they would have no need to resort to the use of force if their services were voluntarily desired. The very fact they must initiate force to sustain themselves proves they are unwanted and undesired by at least some of the people within their purview.

The fact that the State coercively monopolizes the administration of justice (courts, police, and law code in a given geographic area) makes the State, and its employees, automatically suspect. If there are certain natural laws of justice, then there is no reason for government to become a coercive monopolist. Because the principles of justice are grounded in objective, natural laws, they fall within the province of human knowledge; by all who choose to study them and reason them out. Just as we do not require a government to dictate what is right or wrong in steel-making, so we do not require a government to dictate standards and procedures in the realm of justice. If it is possible to verify objectively that one legal procedure is valid, and another not, then it does not matter who employs the procedure in question. We should look to reason and fact; not to government. On the opposing hand, if there is no such thing as natural law and natural justice, then government could certainly not claim to administer a thing which did not exist. In such case there would be no need for government.

Austrian economics, bolstered by the arguments developed by Ludwig von Mises, has long argued that economic calculation under central government planning is impossible. Since profit and loss serve as the central guide for directing the flow of resources, the government of a centrally planned economy has no rational way of calculating because it has sabotaged or destroyed the market pricing system. This inability to make rational economic decisions saps the vitality of any economic system and is inherent in all forms of government intervention. Despite their seeming ability to “direct” and “fine-tune” the economy, government employees and politicians have no special means of obtaining knowledge, any different from those of others. No one has a monopoly of knowledge and no single group or person has a monopoly on the truth, honesty, or fair play. As we have seen of government itself, the very fact that a centrally planned economy needs to initiate force to sustain itself indicates that it is not the most efficient method of social and economic organization. As Murray Rothbard has asked, “if central planning is more efficient, why has it never voluntarily come about through the creation of one big firm?”

Voluntaryists, seeing all forms of government as invasive ‘per se’, nonetheless realize that the State is just one form of coercive monopoly which sustains itself by the use of force, albeit legitimized in the eyes of many. An examination of how to attack coercive monopoly on the market should shed light on how to undermine State power. After all, the problem with government is exactly the same problem as with any other coercive monopoly. The voluntaryist insight points out that all businesses depend on the cooperation, support, and patronage of their customers. The ultimate weapon of both consumers and producers on the market is the option of expressing their indignation by not purchasing from or selling to, boycotting, ostracizing, and not cooperating with the would-be or actual monopolist. In fact, all market activity on the free market can be interpreted as a variety of nonviolent resistance against those with whom one does not wish to deal. An understanding of monopoly theory applies not only to private monopolies but to any situation where one group has acquired control over the means of production over a large area.

The voluntaryist spirit attacks government and coercive monopolies where it hurts them the most: it destroys whatever legitimacy they lay claim to and urges the withdrawal of the consent and cooperation on which all organizations depend. The “popular health movement” of the 1830’s and 1840’s in the United States illustrates this attitude at work in two distinct ways. First, it shows what incredible diversity can come about when a government does not attempt to monopolize knowledge and coerce people into accepting its authority. Second, it demonstrates the integral nature of freedom. As one medical historian has explained: “A people accustomed to govern themselves… want no protection but freedom of inquiry and freedom of action. It was the spirit of the times to throw all fields of business and professional endeavors open to unrestricted competition — why not medicine among the rest?… Hence medicine, with all other human activities, must take its chances in the grand competitive scramble characteristic of the age.” If Americans were entitled to religious freedom, why not medical freedom as well?

“The freedom to discover truth” is what competition is all about. It is only through voluntary exchanges that the truth of the market place can be discovered. “The subjectivity of human wants implies that only individuals participating in an exchange can be the legitimate judge of their own interests. Competition is a learning process” where self-ownership and property rights “provide an incentive to make individuals responsible for their mistakes and give them an incentive to learn.” It is only under voluntaryism that this learning process and self-responsibility are able to exist.

The voluntary principle insures that while we may have the possibility of choosing the worst, we also have the right to choose the best. “By attempting to compel virtue, we eliminate its possibility.” Thus we can see that “freedom is a necessary but not sufficient condition for the achievement of virtue.” Certainly the price of moral freedom is the responsibility of acting at one’s own peril and this always includes the possibility of failure. The voluntaryist spirit, however, asserts that the real victory goes not to those who win the battle but rather to those that fought the best. As David Norton, the author of PERSONAL DESTINIES, has explained, “moral nobility is earned by the efforts of the individual. It comes about in no other way, it is available to all persons, and it is not a matter of birth but of individual effort.” He reminds us, “that if there is a chance for a good life, the risk of a bad one must also be accepted.”

The voluntaryist spirit, as we have seen, comprises several diverse areas of libertarian thought. It expresses the epistemological bias against violence by arguing that rational persuasion is the only means of judging success. In a very real sense, there are only two relations possible among men — that of logic and war. The person who does not accept physical might as the expression of truth, who rejects the doctrine that might makes right, demands logic instead of force. The person who always demands proof and who never assumes anything on faith alone therefore always remains implicitly a voluntaryist. Such a person refuses to acknowledge the legitimacy of government because it “wields the most violence,” or because “no human society has ever existed without it,” or because “there would be chaos without government provision of law and order.”

The resort to violence, in place of argument, is an implicit confession that one’s argument is weak and unconvincing. This explains why freedom is better than compulsion. To paraphrase the argument of a 19th Century English bishop, who preferred to see Englishmen free (and possibly drunk) rather than compulsorily sober, we say: With freedom, in the end we might attain our highest desires, but on the other hand, compulsion assures us that we would lose both freedom and our most highly cherished ends. A poor freedom is always better than a rich slavery.

Voluntaryism also emphasizes the importance of self-ownership and just property titles, which form the underlying basis for the very definition of voluntary relationships with others. In fact, we can have no concept of what it is to violate the rights of others, nor can we even make the distinction between invasive and non-invasive force without having an implicit concept of justice, or a code of principles, which defines what a man is due. In short, the very distinction between voluntaryism and coercion depends upon and presupposes a theory of justice in property titles and people. “The principle of self-ownership means we must treat all others with absolute respect for their self-ownership. You literally have no claim on the lives of others, nor they on you. You can only relate to them when, where, and how they want you to; otherwise you must let them be. You must treat them with respect for their self-ownership rights or not at all.”

Voluntaryists have a clear understanding of the nature of power (what they call “the voluntaryist insight”) — that all governments and human institutions depend on the consent and cooperation of its victims. A person who harbors the voluntaryist spirit understands that he or she cannot be compelled to do anything against his or her will. Such a person may suffer the consequences of holding to his or her belief, but as Corbett Bishop, a World War II conscientious objector who fasted for over 400 days in government prisons and hospitals, pointed out: Governments know that they can terrorize individuals into submitting to tyranny by grabbing the body as hostage and thus hoping to destroy the spirit (of conscience and resistance within the individual). But if one repudiates the body and will have nothing to do with it, the spirit remains free. This is the essence of total non-cooperation with one’s oppressors. The voluntaryist spirit also reminds us of the stoics “who were different from others” in refusing to allow pain to disturb the equanimity of their minds and the exercise of their reason.

There is the story of a Stoic who was captured and told to renounce his beliefs. He refused and was tortured. Still unable to make him recant, his captors told him he would be put to death. He answered they could do whatever they wanted with his body but whatever they did could not injure his philosophy. That was in his mind and their authority, in its physical and moral aspect, did not extend [that far].

As the relator of this story continues, “Stoicism was unique in that its martyrs did not go to death believing their ideas would change the world.” They went to death because their integrity was worth more to them than their existence. For life, if the courage to die be lacking, is slavery. The man who is afraid to die cannot possibly live up to his vision of the truth because he fears for both his person and property. Thus the only favorable course to those who uphold voluntaryism is “to remain loyal to one’s own integrity. For man, as a moral agent, has an obligation to value truth for its own sake, not for any supposed benefits it might bring as a by-product.”

The emphasis on the means-end insight in voluntaryism explains why voluntaryists deem it necessary to take action to achieve their goals. They know they cannot run away from weakness, that sometimes they must resist and disobey or else lose their own self-respect. The voluntaryist spirit is a passionate, disinterested quest for justice and truth. Since all times are proper for pursuing what is right, they realize that there is no time like the present; that the first chance is always the best. They are not bound by difficulties, but by justice. They must do what they think right and let the consequences take care of themselves. The love of truth is infectious. One’s ideals and ideas must be professed everywhere; there is no escaping it and no middle way. If voluntaryism is worth anything, it is worth the effort to try to work towards it. The truth is something to be done, not just something to be believed. The true secret of freedom is the courage to resist. “No one ever remains free who acquiesces in what they know to be wrong.” In the context of the voluntaryist critique of the State, disobedience to invasive laws is the greatest virtue.

It is said that a journey of a thousand miles begins with a single step, and the voluntaryist realizes that only by beginning the long-term efforts to deligitimize the State can any progress be made toward his or her goal. As futile as a single step may seem, it is only by taking that very first step that the journey towards voluntaryism can be started. Those who are moved by the voluntaryist spirit realize that they must do everything humanly possible to move towards their goal. People may not feel they have done everything they can do until they have tried to do it.

It was Ludwig von Mises in his NOTES AND RECOLLECTIONS who argued that it is a matter of temperament how we shape our lives in the knowledge of inescapable catastrophe. In high school he had chosen a verse by Virgil as his motto: “Til ne cede malis sed contra audientur ito.” (Do not yield to the bad, but always oppose it with courage.) In the darkest hours of World War I he recalled this dictum:

Again and again I faced situations from which rational deliberations could find no escape. But then something unexpected occurred that brought deliverance. I would not lose courage even now. I would do everything (I) could do. I would not tire in professing what I knew to be right. … I regret only my willingness to compromise, not my intransigence.

Short Bibliography

John Dewey, HUMAN NATURE AND CONDUCT, New York: Carlton House, 1922, see pp. 34-37 and 230-233.

Ronald Duncan, SELECTED WRITINGS OF MAHATMA GANDHI, Boston: Beacon Press, 1951.

Emma Goldman, MY FURTHER DISILLUSIONMENT IN RUSSIA, Garden City, Doubleday, Page & Co., 1924, see Chapter XII, “Afterword”.

William Grampp, ECONOMIC LIBERALISM, (Vol. 1: “The Beginnings”), New York: Random House, 1965, pp. 11 and 26.

Hanford Henderson, “The Aristocratic Spirit”, THE NORTH AMERICAN REVIEW, Vol. 211, March 1920, pp. 387-401.

Arthur Wollaston Hutton, “The Moral Argument against Compulsory Vaccination”, THE HUMANITARIAN, Vol. 7, No. 3, September 1895, pp. 177-185.

Raghavan N. Iyer, THE MORAL AND POLITICAL THOUGHT OF MAHATMA GANDHI, New York: Oxford University Press, 1973, esp. see Chapter 13, “Means and Ends in Politics”.

Terence MacSwiney, PRINCIPLES OF FREEDOM, Dublin: The Talbot Press. 1921.

Ludwig von Mises, NOTES AND RECOLLECTIONS, South Holland: Libertarian Press, 1978.

David Norton, PERSONAL DESTINIES, Princeton: Princeton University Press, 1974, see. p. 320.

Murray Rothbard, “Myth and Truth About Libertarianism”, MODERN AGE, Vol. 24, Winter 1988, pp. 9-15.

Richard Harrison Shryock, “Public Relations of the Medical Profession in Great Britain and the United States: 1600-1870,” ANNALS OF MEDICAL HISTORY (n.s.), VII, 1930, pp. 308-39, esp. see pp. 319-23.

Carl Watner, TOWARDS A THEORY OF PROPRIETARY JUSTICE, Baltimore: by the author, 1976.

Carl Watner (editor), I MUST SPEAK OUT: THE BEST OF THE VOLUNTARYIST 1982-1999, San Francisco: Fox & Wilkes, 1999.

By Kurt Fuller
Issue 122

[Editor’s Note: The author of this article has been professionally involved in the insurance business for over 27 years. In August 1996, he founded and became president and CEO of the Michigan Insurance Company of Grand Rapids, MI, which currently has over $ 73 million of premium writings. Mr. Fuller earned a B.B.A. from the University of Iowa, an M.B.A. from the University of Michigan, and the CPCU (Chartered Property and Casualty Underwriter) designation. He has published two previous pieces in The Voluntaryist (in Whole Nos. 114 and 115).]

Insurance is an enormously large industry in the United States. In exchange for a monetary payment (the premium), one party (the insurer) will assume some of the risk faced by another party (the insured). Virtually any type of risk can be insured, such as losses relating to your death, your car, your house, your teeth, a satellite, Tiger Woods, the Mona Lisa, and a hole-in-one charity event. While some people are repulsed by the thought of purchasing insurance, the reality is that our lives and lifestyles would be very different without it.

If insurance did not exist, it would be immensely more difficult to get a mortgage to purchase a house, or a loan to buy a car. Most lenders would not want to take the risk of their collateral disappearing and be left “holding the bag.” It doesn’t mean that houses and cars would not exist, it simply means that there would be far fewer of them. It doesn’t mean that we wouldn’t have teeth; they just would not be as well cared for. It doesn’t mean that we wouldn’t have beautiful, rare paintings, but there would be fewer of them, and they might not be displayed as frequently in public.

If insurance is such an integral part of our lives, then why is it not embraced by the public as a godsend, and why are premiums not paid enthusiastically? Why does the public demand that government regulate the insurance industry so that the consumer is protected? Why do consumers generally feel that they are being ripped off by the insurance industry, despite the heavy regulation? Why are the insurance carriers perceived as always trying to worm their way out of paying when something goes wrong; why do rates increase, even when you have a good claims record?

The answers to these and most other questions regarding the workings of the insurance business are hidden behind a façade. To the naked eye, the government and the insurance industry are in constant battle, with the government tirelessly working to protect the consumer, and the industry tirelessly working to fleece the consumer (its customers). Behind the façade is a fascinating partnership between the government and insurance companies.

What? How can these “mortal enemies” be partners? How can the government be partners with the evil perpetrators of public misery? And how can insurance companies be partners with the entity that is suppressing its revenues, working to expand the scope of its claims payments, and increasing expenses through compliance with the bureaucracy? This must be a misprint.

Sadly, it is not a misprint. In actuality, the partnership works very well, and allows both partners to flourish. How does it do this? Let’s first look at the history of the partnership and see how we got where we are today.

The insurance business in the United States was marked by instability during much of the 19th Century. Companies were generally undercapitalized and ratemaking was mostly guesswork (because there was no historical loss data). The result was that the majority of companies went bankrupt, and many customers were left with large, unpaid claims.¹

It is not hard to imagine that customers who suffered large losses (such as a house burning down) believed the government should step in and “do something” about this problem. At the same time, the surviving insurance companies were only too willing to accept “help” from the government in keeping their businesses solvent, in the name of protecting the consumer.²

This was the beginning of the insurance/government partnership.

The stated reasons for government involvement in the insurance business have not changed much since then. A recent article in the Florida State University Law Review, entitled “Insurance Regulation in the United States,” stated that:

Regulation of the insurance industry is necessary. As the United States Supreme Court has long recognized, insurance is a business coupled with a public interest. Consumers invest substantial sums in insurance coverage in advance, but the value of the insurance lies in the future performance of the various contingent obligations. Because the interests protected are so important–including an individual’s future ability to provide for dependents in case of death or injury, to retire, to obtain necessary medical treatment, to replace damaged or destroyed property–regulation of the industry furthers public welfare.

Related reasons for regulation center on the complexity of insurance, and consumers’ inability to obtain and understand information about insurance. Consumers are ill-equipped to assess a company’s future solvency, to compare the coverage of various policies, or to evaluate a company’s claims service. Theoretically, government regulation of insurance eliminates these problems. Regulation can ensure solvency and the insurer’s ability to pay claims in the future, standardize policy coverage, require minimum coverage, and require fair claims processing.

An equally important justification for insurance regulation is the prevention of excessive and potentially destructive competition. Because an insurance company’s real costs are not known until an insurance policy matures and all claims are paid, the insurance business tends toward extreme competition in pricing. If the insurer’s insolvency results, the consequences for the insured and their beneficiaries may be devastating.³

These three paragraphs summarize the general beliefs about insurance regulation. In this context, is it any wonder that the insurance/government partnership developed and flourished? Why would you want it any other way?

Now that the “need” for the partnership has been established, let’s look at what each of the partners gets out of the deal:

What the government gets:

1. A piece of the action
2. Support for more bureaucracy
3. Legitimacy

A Piece of the Action

The government benefits tremendously in its relationship with the industry through various methods of extracting taxes and “assessments.” The easiest and most obvious is direct premium taxes, which are usually collected state governments, and are typically based on a percentage of the customers’ premiums. What better way to be your partner than to get a piece of every dollar you bring in? There are literally dozens of other less visible and clever “assessments” for things like “auto theft prevention,” “second injury,” “silicosis and dust,” “insurance company insolvency,” and “assigned risk pools.” In short, the revenue spigot is wide open from the industry to the government.

Support for More Bureaucracy

Along with all the “assessments” comes the need for “regulatory oversight.” What good is an “auto theft prevention” fund without a bureaucracy to administer it? Every revenue source, assessment, or tax provides the excuse to further regulate, which is the code word for further expansion of the bureaucracy. While bureaucrats have little in common with business people, the one trait they share is the desire to expand their empire. Legitimacy

Once the government has all the clever schemes and “regulatory oversight” in place, they are in great position to proclaim their success in “protecting the public.” They have slain the giant, and we are all safe again. Yes, we are humble public servants, but we do it all for you. How noble and altruistic! It sure sounds like we need these “helpers” in our life to make sure everything is OK.⁴

What the companies get:

1. Protection from competition
2. Protection from innovation
3. Legitimacy

Protection from Competition

If you ask the CEO’s of all the companies in the US whether they believe in free markets and the value of competition, they will all emphatically answer in the positive. However, if you ask whether they support specific measures that will eliminate barriers to entry and increase the competition in their industry, virtually every CEO will give a million reasons why a freer market does not make sense in their particular case. The insurance industry is no different.

When you examine specific measures that have been supported, or are being supported, by the insurance companies, there is a predictable pattern. First of all, they all advocate “compulsory” automobile insurance to insure plenty of customers. Secondly, they favor things like greater capital requirements, tighter regulation of rating, and innovative taxing schemes. However, all of these things are advocated and supported in the name of “protecting the public.” We wouldn’t want you to purchase insurance from a company that is not adequately capitalized!

If these companies truly believed that they were acting in the interest of their customers and the public at large, wouldn’t they also believe that they would eventually write most of the business anyway? It tells you what they really believe.

Protection from Innovation

It seems to be the nature of things for big, old, established companies to also be fat, slow, and inefficient. If so, it leaves them vulnerable to quick-moving, market-responsive, hungrier companies. One way for companies to slow down their hungrier competitors is to become leaner, faster-moving, and more efficient themselves. However, a quicker, less-painful, and easier way is to work with their partners in the government.

Insurance companies are consistent proponents of tighter underwriting rules, stricter rating rules, and more specific definitions of coverage. These measures are advocated in the name of efficiency, but they result in very little room for innovation. The customer-responsive companies are not allowed to respond to the market because the rules do not allow it. Innovation still exists, but it is expensive to implement, and in constant danger of being regulated away.

Legitimacy

Wasn’t this category already mentioned on the government side of the ledger? Yes, the whole process legitimizes everyone’s role. If a company is taxed, regulated, and legislated as part of the process and is still able to survive and prosper, then it must be doing a good job. “Mr. Customer, you can count on me. If I subject myself to the regulatory process, then you know your insurance dollars are safe with me.”

The latest issue that demonstrates the true nature of the insurance/government partnership is terrorism. Yes, the industry suffered horrendous losses as a result of the events on September 11, 2001. Yes, the industry would go broke in a hurry if this became a regular thing. Yes, we should seek solutions to the problem.

But does that mean that the government should become an “insurer of last resort?” For the insurance industry (as always), the consensus answer is “yes.” They jumped at the chance to solidify and enhance the partnership. By the time the process was completed, the final solution had terms that are protective of and beneficial to the insurance companies, and more costly for the consumer. In addition, all of the elements mentioned above (what the government gets and what the companies get) have been enhanced.

Obviously, the market is not capable of responding to such a monumental problem. Or is it? Maybe we should take a closer look at what has actually happened in the insurance marketplace on the issue of terrorism.

Terrorism is not an insurable risk by definition. The potential losses are not predictable, cannot be adequately contained, and are not of a nature where a proper price can be determined. A close look at standard policy language reveals (based on interpretation) that terrorism is not covered, nor was it ever intended to be covered, based on the War Risk Exclusion.

While the interpretation of that exclusion can be debated,⁵ it is clear that companies did not charge a premium for this coverage and did not contemplate that exposure in their ratemaking. Then why in the world would the industry step forward and pay upward of $30 billion in losses?

It all gets back to the partnership. Shortly after the attacks, President Bush, knowing that coverage was in question, asked the insurance industry to step forward and voluntarily provide coverage, in the name of patriotism. Once the first few companies committed themselves to covering the losses, the rest of the companies were forced to follow. (Imagine the public relations and legal problems you would face if you did not follow.) The unstated agreement is this: “Help me out by covering these losses and I’ll help you out. I’ll pass laws to make the government insurer of last resort so you won’t have to worry about this in the future, and I’ll do my part to support your business in the future.”

But isn’t it a good thing that President Bush boldly stepped forward to rescue people from their financial losses? If terrorism was allowed to be excluded from coverage, people would be left out in the cold with no losses being paid, and the consequences would be devastating. Really?

One of the most fascinating aspects of the September 11 disaster is the response from private organizations and individuals outside of the insurance business. Nearly two centuries ago, the French observer Alexis de Tocqueville remarked on the unique willingness of Americans to organize themselves to meet community needs.⁶ You can argue that this is a perfectly rational and appropriate way for this situation to be addressed, even if the insurance industry and the government were not involved. Does it really seem so far fetched that this kind of heinous act can be rectified (financially) through the voluntary efforts of good people, without government involvement?

Markets have a way of responding to any situation. But how could the voluntary efforts of Americans possibly come close to replacing the $30 billion in losses projected to be paid by the insurance industry? They may come closer than you realize.

According to a September 2002 report from the General Accounting Office (GAO), entitled Interim Report on the Response of Charities, a staggering $2.45 billion was raised by 34 large charities in response to the September 11th tragedy. The list of charities includes the American Red Cross Liberty Fund, The September 11th Fund, the Twin Towers Fund, the International Association of Firefighters, and the Salvation Army. However, this is a small sliver of the total charitable activities related to September 11.⁷

In the June 2002 edition of Ideas On Liberty magazine, Doug Bandow points out that, “Americans responded in a staggering variety of ways after September 11, creating special funds, hosting car washes, providing food, donating blood, and doing much more.”⁸ There are literally thousand of organizations that have provided direct and indirect relief efforts (monetary and non-monetary). Countless churches and neighborhood groups coordinated efforts to raise money, food, clothing, etc.

Even the GAO report acknowledges that, “a precise tally of how much charitable aid was collected…may never be available given the difficulties in tracking information across multiple independent charitable organizations.”⁹” And the donations are still rolling in, though at a slower pace. In addition, we have not even begun to tally the enormous efforts that have taken place outside the United States and throughout the world.

The following are a few examples among thousands of charitable efforts that are likely not counted in the statistics of recognized charities:

Over $1 million was raised for the Twin Towers Orphan Fund, which provides financial support for children of the victims of September 11.¹⁰

Institutional donors (corporations and foundations) contributed over $1 billion to various charities, according to the Philanthropy Journal.¹¹

The German Cardiac Society donated $100,000 to the Fire Department of New York to replace an ambulance lost on September 11.¹²

Keefe, Bruyette & Woods, a New York-based investment banking firm, has raised more than $10 million to help support the families of the 67 former KBW employees that perished on September 11.¹³

Authors of the book 911: The Day America Cried will donate the proceeds of the book to the Todd M. Beamer Foundation.¹⁴

Merrill Lynch has established a $5 million scholarship fund to benefit students at three lower Manhattan high schools affected by the tragedies of September 11.¹⁵

America’s Fund for Afghan Children has raised $9 million. This money was raised through American children who each donated $1 to help suffering Afghan children.¹⁶

How much has been raised in total? No one will ever know for sure. Based on what we do know, I believe a reasonable estimate is $10-20 billion. If this number is anywhere close to being accurate, it is compelling evidence of the power of voluntary response to a crisis. Could America rebuild from another terrorist attack if there was no insurance and no government money? I believe the evidence shows that it would.

What if our entire society was based on voluntaryism? Would there still be an insurance industry? What would it look like, and how closely would it resemble what we have today? How could the system work without a central authority to make sure that everyone is treated fairly?

No one knows for sure how things would look under voluntaryism, because it is based on spontaneous action that is not distorted by the presence and interference of government. However, we can make some educated guesses.

The first thing to understand (contrary to the statements in the Florida State University Law Review and to beliefs held by most Americans) is that regulation of insurance is not necessary. Yes, there is potential for large losses of income and assets if exposures are not properly covered. Yes, the business is complex. Yes, some companies will attempt to take advantage of their customers. Yes, it is a competitive business, and the possibility exists that some companies will go broke.

But the government cannot fix these problems.¹⁷ It can only make things worse, as it has. As usual, the new bureaucracy that has been created to provide terrorism coverage is enormous. The reporting requirements (both to the customer and to the government) are extremely onerous and costly. Worse, the coverage provided is not adequate to serve the intended purpose (other than as a “political” feel-good measure), nor does it address the basic underlying problem that the exposure is uninsurable, as my previous comments have made plain. Ironically, a large percentage of customers are choosing not to purchase terrorism coverage, which defeats the purpose of the entire program. If there were no coercive government, people would know that they must fend for themselves, in every respect. They would have the incentive to be better educated about various types of insurance, the services available, and the reputations of the various companies. Or, they would make sure they have an agent who has the knowledge they lack.

Some companies will take advantage of their customers in a voluntaryist society, as they do now. However, the consequences will be more direct and more severe. Better educated customers will spread the word more quickly about unethical practices, and the companies will not be able to hide behind a government license and government regulation, which give the customer a false sense of security.

In a voluntaryist society, there likely would be private insurance available to protect against insurance companies going bankrupt. Currently, there is no such insurance because the government guarantees the obligations of bankrupt insurance companies,¹⁸ then passes the cost along to solvent companies (and their customers). This creates perverse incentives, including the fact that the customer is taken completely off the hook in choosing a company with solid financials. No wonder the business is so volatile!

There would likely be a much higher level of innovation by the insurance industry in a voluntaryist society. Today everything is homogenized because government regulation is intended to “level the playing field.” Remember that a critical component of the insurance/government partnership is to keep barriers to entry high, and to make life difficult for newer, smaller, market-responsive companies.

Without government protection, the insurance industry would likely be much more interested in preventing losses than in simply paying them and passing the costs back to the customer in the form of rate increases. It makes sense that there would be strong incentives for insurance companies and defense service agencies (private police) to form alliances in a voluntaryist society. How might that alliance manifest itself?

In their excellent book, The Market For Liberty, Morris and Linda Tannehill outline an extensive scenario of how insurance companies and defense service agencies might work together in what they call a “laissez-faire” society:

There are two main reasons for insurance companies’ interest in the business of defense: 1–acts of aggressive violence result in expenses for insurance companies, and 2–the more secure and peaceful the society, the more value-production there will be, and the more value-production there is, the more things there will be that require insurance coverage, which means more insurance sales and more profits.

In a laissez-faire society, insurance companies would sell policies covering the insured against loss resulting from any type of coercion. Such policies would be popular for the same reason that fire and auto insurance are–they would provide a means of avoiding the financial disaster resulting from unexpected crises. Since insurance companies could not afford to insure poor risks at the same rates they charged their other customers, insurance policies would probably specify certain standard protective measures that the insured must take in order to buy the policy at the lowest rates–burglar alarms connected to the defense service company’s office, for example.

Policies would also state that the insured must buy his protection from a defense agency that met the standards of the insurance company, to avoid having him hire an inefficient or fly-by-night defense agency at a cheap price while counting on his insurance to make up for any loss which their ineffectiveness caused him.

Because of the close connection between insurance and defense, some of the larger insurance companies would probably set up their own defense service agencies in order to offer their clients the convenience of buying all their protection needs in the same package. Other insurance companies would form close ties with one or more independent defense service agencies that they had found to be effective and reliable, and they would recommend these agencies to their customers.

As an added benefit, the powerful insurance companies, with their vast and varied resources and their vested interest in seeing values protected and aggressive violence held to a minimum, would act as a natural check upon the defense service agencies. This is an example of how the market, when left unhampered, constantly moves toward a situation of maximum order and productivity. The market has its own built-in balancing mechanism which automatically keeps it running smoothly with the best long-range results for every peaceful individual. Government is only so much sand in the gears.¹⁹

Insurance is potentially a dynamic and exciting business that provides much-needed services. In today’s world, it has evolved into an inefficient and uncompetitive dinosaur. I believe the primary reason for the current state of affairs is the insurance/government partnership. Under a voluntaryist approach, I believe we would see broader coverages, better service, and significantly lower prices. Unfortunately, there does not appear to be much chance of this happening anytime soon.

---

Endnotes

1 Early insurance companies often did not understand the need for re-insurance. Many restricted their underwriting to the city or town where their headquarters were located. Unfortunately, this produced a heavy concentration of values, and it was not unusual for a single catastrophe (like the Chicago fire of 1871, or the San Francisco fire and earthquake of 1906) to bankrupt an insurance company. For more details on the “Historical Development of Insurance” see “Insurance,” Volume 21 (Macropaedia), The New Encyclopedia Britannica” Chicago, 1992, 15th edition, p. 753. Also see Albert Loan, “Institutional Bases of the Spontaneous Order: Surety and Insurance,” 7 Human Studies Review, No. 1 (Winter 1991/92), pp. 3, 17-24, available on the web at http://www.theihs.org/libertyguide/hsr/hsr.php/13.html. The parallel between the evolution of the early insurance industry and the early automobile manufacturing industry is very interesting. There were literally hundreds of small vehicle manufacturers in the early days of the industry. Only a handful eventually thrived and survived

2 Twentieth Century insurance companies have always eagerly embraced the belief that “excessive” competition is bad for the public (which obviously implies that it is bad for the existing insurance organizations, too).

3 Susan Randall, “Insurance Regulation in the United States: Regulatory Federalism and the National Association of Insurance Commissioners,” 26 Florida State University Law Review (1999), pp. 625-699, at p. 627.

4 Bureaucrats in government agencies that regulate insurance companies are no different than their counterparts in other government programs and regulatory schemes. They all want to expand their control and conquest.

5 Every sentence of every insurance contract can and has been debated. The interpretation given here is the opinion of the author, though others have supported this position.

6 Doug Bandow, “The War on Charity,” Ideas on Liberty, June 2002, p. 6.

7 Cynthia M. Fagnoni, Report to the Honorable Charles E. Grassley, September 11: Interim Report on the Response of Charities, General Accounting Office, September 2002, pp. 30-31.

8 Op. cit., Bandow.

9 Op. cit, Fagnoni, p. 29.

10 Business Editors, “Twin Towers Orphan Fund Seeks Additional Support, www.businesswire.com, December 26, 2001.

11 “9/11 Charity,” PHILANTHROPY JOURNAL (March 14, 2002).

12 Business Editors/Health and Medical Writers, “New York City Mayor Guilani Accepts Gifts From Visiting Cardiologists,” www.businesswire.com, December 14, 2001.

13 Business Editors, “Keefe, Bruyette & Woods to Donate September 24, 2002 Sales Commissions to KBW Family Fund,” www.businesswire.com, September 18, 2002.

14 Business Editors, “Authors Contribute to Book Commemorating September 11,” www.businesswire.com, September 9, 2002.

15 Business Editors, “Merrill Lynch Establishes $ 5 Million Scholarship Fund for Lower Manhattan High School Students, www.businesswire.com, September 6, 2002.

16 Walter Scott, “Personality Parade,” Parade Magazine, August 11, 2002, p. 2.

17 Nor any other problems.

18 All 50 states and the District of Columbia have what are called Guaranty Funds, which essentially pay the losses of bankrupt insurance companies, then pass on the cost to the remaining solvent companies based on market share.

19 Morris and Linda Tannehill, from Chapter 8, “Protection of Life and Property,” in their book The Market For Liberty (1970), pp. 85-87.

Princess Navina, in her exploration of world cultures, discovers Voluntaria. She searches high and low for any traces of government, but all she finds is a people who mind their own affairs, who meet the common needs of life, including justice and utilities and public order, by creative free enterprise in a fertile free market. This little book has renewed my belief that a just society is possible, and is a lot easier than reading than Ayn Rand or Carl Watner. Is it as big or filled with educational details as these other books? No. Is it as inspiring as Atlas Shrugged? Yes, in its own simple way. Will this book garner a Caldecott Medal? Is it great literature by New York or Parisian or Cuban standards? Probably not: but it is great storytelling, and a delightful read for lovers of liberty. It is my new answer to those who say “If everyone believed like you we’d have ANARCHY!” I say, “No, if everyone believed like I do we’d have VOLUNTARIA!”

Princess Navina Visits Voluntaryia comes off as a “harmless” little book which could begin a beautiful revolution in the hearts of all, both young and old. I highly recommend it.

By Carl Watner
From Issue Number 121

The chief principle of a well-regulated police state is this: That each citizen shall be at all times and places … recognized as this or that particular person. No one must remain unknown to the police. This can be attained with certainty only in the following manner: Each one must always carry a pass with him, signed by his immediate government official, in which his person is accurately described. There must be no exception to this rule.

– Johann G. Fichte, THE SCIENCE OF RIGHTS. Originally published 1796. Translated from the German by A. E. Kroeger. London: Trubner and Co., 1889, pp. 378-379 ^[1].

We need to create an atmosphere such that each citizen feels that without [his government papers] he will be unable to travel anywhere, that the single document confirming his identity is [his government paperwork]. The first question you must ask a detained citizen is – show me your [government id].

– Genrikh Yagoda, the People’s Commissar of Internal Affairs, in a top-secret speech of April 16, 1935 at a conference convened by the People’s Commissariat of Internal Affairs (NKVD) ^[2].

Why introduce the topic of “official identity” in the United States with quotes from a late-18th Century German philosopher and a 20th Century commissar of the Soviet secret police? The short answer is that government identification practices in the United States have been profoundly affected by foreign influences, especially by the development of police identification practices in other countries. The long response, and purpose of this article, is to describe both the chronology and internal logic of “official identity” as that concept developed in the United States.

The predominant way of identifying people in this country, as least until the beginning of the 20th Century, was voluntaryist in nature. Individuals chose to identify themselves in whatever manner chosen by their parents, or themselves in adult life. Family Bibles, church registries, baptismal registries, or simply informal community acknowledgement were some of the methods used to establish names. Individuals could change their names whenever they wished, so long as they had no fraudulent purpose in mind. Local, state, and federal governments were left out of the picture. Home births were common, driver’s licenses were non-existent, passports were usually not required for foreign travel, Social Security numbers were unknown, and numerous states had no laws requiring the issuance of birth certificates. People had no need for government identification because there so few interactions (at least compared to our situation today) with the government. In many instances, they neither paid taxes directly to the government (as in income taxes) or received any direct monetary assistance from the government (as in Social Security benefits), and therefore there were no requirements to prove “who you were” to the authorities.

Why Does the State Need to Know Who We Are?

The need for “official identities” stems from the expanding power and scope of the modern nation-state. Pamela Sankar elaborates on this thesis in her 1992 Ph.D. dissertation “State Power and Record-Keeping: The History of Individualized Surveillance in the United States, 1790-1935.” She points out that the modern nation-state must maintain “direct, continual, and specific contact” between its ruling bureaucracy and its citizenry. “This allows the state to exert forceful and precise control over its population, and “provides a critical source of the modern state’s power.” ^[3] However, in order for this to occur, the state must be able to fix the identity of each and every person in its territory. ^[4]

The concept of official identity epitomizes governments’ “fundamental purpose, which is to maintain conquest.” ^[5]How better to exercise control than to assign each human being a permanent, indelible identity: “lasting, unchangeable, and always recognizable, [and] easily proved.” ^[6] The function of an “official identity” is to establish documentary evidence and bureaucratic records which enable the government to recognize unique and specific individuals. It is the identity through which the individual must conduct all of his or her affairs with the government, and the identity by which the state monitors, regulates, and directs personal conduct. One’s official identity serves as the basis for the claim to be an American citizen, mother or father to one’s children, automobile driver, discharged solider, recipient of government largess, etc. The threat of various penalties for the refusal to use one’s official identity serves as an example of the carrot and stick approach that government uses towards its citizens. No one can be legally born, work, drive, or leave and re-enter the country without government id, and many quasi-public institutions have adopted government id requirements (try cashing a check or renting a car without an official identity). ^[7] No one who lacks an official id may receive money from the government, send their children to government schools, or become a government employee (solider, policeman, clerk, bureaucrat, schoolteacher), or enter into any sort of licensed profession (doctor, lawyer, general contractor, etc.).

Historically, in nearly every nation-state, the idea of government identities was first thought of and used by police, prison, and judicial officials. A judge or warden or policeman wanted to know about the man before them, and the truth about a prisoner’s background. Was the man in the docket a first time offender or a degenerate recidivist deserving harsh treatment? Since arrested suspects and persons charged with crimes were often personally unknown to state officials, such detainees had every incentive to falsify their identities in order to avoid being labeled as repeat offenders. (As they knew, repeat offenders were often treated more harshly and received longer prison sentences, if convicted.) How else, other than relying on an officially-imposed identity, were government officials to know who was the person before them? (This is one of the reasons that some convicts, at different times and different places, have been branded, or even tattooed.) In the United States, during the first third of the Twentieth Century, it was chiefs of police, detectives, prison wardens, and FBI functionaries who spear-headed a long-term campaign to have every person under their jurisdiction receive an “official identity.” The military requirements of World War I, the alien registration undertaken in 1918, the advent of Social Security in 1935, and the increasing trend toward licensing drivers of motor vehicles all contributed to the creation of official identities and government monopolization of the means of identification in the United States.

The first specifically American attempts to catalog and identify criminal offenders occurred in the late 18th Century. Some of the earliest evidences of state-recordkeeping are found at Philadelphia’s Walnut Street Jail, whose construction was authorized in 1773, and which became Pennsylvania’s first state penitentiary in 1794. The names of convicted offenders were entered in a prisoner’s log, along with a description of physical characteristics, age, and any special peculiarities. It was not until a century later that the scientific method, known as anthropometry, was applied to criminal record-keeping.

Using Body Measurements to Identify Criminals

Anthropometry is the branch of science that deals with bodily measurements and was developed into a method of identifying criminals by Alphonse Bertillon (1853-1914). Bertillon was chief of criminal identification for the Paris police for a number of decades during the late 1800s and early 1900s. In 1882 he developed an identification system that relied upon a series of bodily measurements, physical descriptions, and photographs. Anthropometry was based on the fact that the skeletal system of most adults was stabilized and fixed by the age of twenty. Bertillon used the great diversity of bone dimension among adults, and the relative ease with which such diversity could be measured, as the basis for two cross files: one anthropometric and one alphabetic (or phonetic). If a person’s name was known and in the files, his identity could be confirmed by verifying that his bodily measurements were the same as recorded in his anthropometric file; or if a person refused to give his name, his bodily measurements could be taken and located in the anthropometric file and his name determined. Bertillon’s historic contributions to police science rest upon his application of the scientific method to personal identification, as well as to his strenuous efforts to create the first scientific police laboratory.

Promoters of the Bertillon system envisioned a requirement that all adult citizens report to measuring centers for recording their anthropometric dimensions. Bertillon was already familiar with the co-ordinated system of passports, residential registration, and centralized reporting of criminal convictions which had given France one of “the most extensive state-run surveillance system[s], up to that time. ^[8] When he and Louis Herbette, Director of Penitentiaries in France, attended the International Penal Congress in Rome, Italy in 1885, they both delivered speeches advocating centralized “state-run, national, identification systems.” ^[9] As Sankar describes it:

Herbette related some of the more dramatic incidents where Bertillon’s new method had aided police, but he concluded by redirecting attention to the method’s basic contribution: that police could create a documentary version of individuals that police could use to identify people despite resistance on their part. Herbette pointed out that there was nothing intrinsic to the method which confined its use to criminals. … [H]e exhorted his listeners to consider the method’s “extended aim,” which was,

[to] fix the human personality … to give each human being an identity, a certain individuality, lasting, unchangeable, always recognisable, [and] easily proved … .

Herbette emphasized that this “fixing” could be useful beyond the narrow confines of penitentiaries and police. But to whom, precisely?

Was Herbette concerned that kin recognize one another, that neighbors always know neighbor, that a mother always recognizes her son, … ? No. As the full text of Bertillon and Herbette’s speeches clarified, their concern was neither local nor personal. It was, instead, national and international: that the state should be able to fix the identity of each and every person living within or moving across its territory. Herbette envisioned Bertillon’s method as the center of a universal identification system storing and verifying the identities of criminals and law-abiding citizens alike. ^[10]

Both Bertillon and Herbette realized that anthropometric measurements can verify someone’s identity if they are already in the files, but to be absolutely effective such a system must include everyone in a given population area. The internal logic of their, and any other identification system demands that more and more people be included, thus making the identification system more and more effective. Only “a universal system” allows government authorities “to discover,” not just verify, identities.” ^[11]

Anthropometry in the United States

The history of criminal and civilian identification practices in the United States demonstrates how this principle was applied by various groups of police and judicial bureaucrats. Although neither the United States Congress or state legislatures have ever mandated such a universally-inclusive system, various federal and state laws have gradually extended separate identification “requirements to so many sub-groups within the nation’s population that, over time,” it has resulted in “a de facto national identification system.” ^[12] Whereas state and local officials were at first interested in labeling and knowing the names and identities of criminals and criminal suspects, they now demand – as a matter of right – that every person within their jurisdictions carry and be able to produce a state-issued identity document. Failure to do so is often considered a crime.

The first prison official in the United States to adopt the Bertillon system was R. W. McClaughry, in 1887, at the Joliet State Prison in Illinois. McClaughry had been exposed to the French system of criminal identification by E. C. Wines, corresponding secretary of the National Prison Association. In the same year he adopted bertillonage at Joliet, McClaughry was also instrumental in founding the Warden’s Association for the Registration of Criminals. Soon thereafter, the Warden’s Association approved the establishment of a criminal identification system based on monthly submissions of photographs and written descriptions of the physical appearances of newly arrived prisoners at their respective institutions. “In so doing, they established the first centralized identification system in the U.S. which, while not fully national at its inception, was national in intent.” ^[13]McClaughry was an avid advocate of anthropometry, and edited the 1896 translation of Bertillon’s book, Signaletic Instructions Including the Theory and Practice of Anthropometrical Identification. McClaughry was not satisfied with identifying just criminals. He wanted everyone identified. In the “Publisher’s Preface” to Bertillon’s book, McClaughry wrote:

According to the theory of the system, and in order for society to reap its full benefit, every human being should be partially signalized [measured anthropometrically] … at the age of ten years, and completely so at the age of maturity; and every country should have a national signaletic office where all the signalments of its inhabitants should be filed. The process of signalments would take the place of passports at every national frontier, and signalments would appear on all life insurance polices, permits and other papers whose value depends upon the establishment of personal identity. It would then be possible to find any person at once whenever desired, whether for his own good or that of society at large, in whatever place he might be and however he might alter his appearance or his name. Crime could thus be rooted out, elections purified, immigration laws effectively enforced, innumerable misunderstandings and much injustice prevented and all business relations greatly facilitated. ^[14]

After McClaughry’s introduction of anthropometry in the United States, other police organizations were formed and soon embraced Bertillon’s system. The National Chiefs of Police was born in 1893, after a meeting of police executives in Chicago. In 1902, this group decided to change its name to the International Association of Chiefs of Police, and one of its first actions was to establish a central clearinghouse for criminal identification records. In 1897, the National Chiefs of Police Union, headed by Phil Deitsch of Cincinnati, was founded, and it, too, began its own National Police Bureau of Identification. The U. S. Department of Justice created its own Bureau of Criminal Identification in 1905. “By 1896, the Bertillon system had been adopted by 20 prisons and seven police departments in the United States alone.” ^[15] Use of the anthropometric system of identification by police agencies in France, Belgium, Switzerland, Russia, British India, and many of the South American republics resulted in the resolution of numerous criminal cases. ^[16]

Although some sharing of Bertillon records took place among police identification bureaus, there was essentially little cooperation (domestically or internationally) between them until fingerprint identification superceded Bertillon’s anthropometric system. Fingerprinting has an ancient history, but it did not attract Bertillon’s attention as a scientific method because there was no precise way of cataloging and filing all the diversities of different fingerprints until nearly 1900. Modern fingerprinting can be traced back to four Englishmen: Dr. Henry Faulds (1843-1930), Sir William James Herschel (1833-1917), Sir Francis Galton (1822-1911), Sir Edward Richard Henry (1850-1931); and one Argentinean (born in Austria): Juan Vucetich (1858-1925). ^[17] Galton was the first to direct his attention to setting up a classification system for fingerprints, and where he failed, Sir Edward Henry was successful. Henry made the breakthrough which made possible the cataloging of millions of fingerprints and the “almost instant location of any one record for comparison.” ^[18] Henry’s system was first introduced in Bengal, and then throughout India in 1897. By 1901, Scotland Yard had rejected Bertillonage in favor of fingerprint files. “Within the decade, Henry’s system of fingerprint identification had been extended to most countries in Europe and to the United States.” ^[19]

The Advent of Dactylscopy or Fingerprinting

Anthropometry was discarded, not because it failed to accomplish what it promised, but because fingerprinting was “easier to implement, required less training and expertise in making and accessing criminal records,” and was generally a far less expensive and simpler method. ^[20] The new “science of dactyloscopy” (from the Greek and Latin roots for `finger’) was first introduced into the United States when the New York Civil Service Commission began fingerprinting candidates taking civil service examinations in 1902. Shortly thereafter, the movement toward fingerprinting gained momentum: in 1904 the U.S. military began collecting fingerprints of enlistees; in 1905 the New York City Police Department established its own identification bureau charged with collecting fingerprints; in 1908 the Department of Interior Office of Indian Affairs instituted thumbprinting of native Americans to help deter fraud in their financial transactions; and by 1911, the first criminal conviction based solely on fingerprint evidence took place in the United States. Despite a watertight alibi, Caesar Cella was found guilty in a New York City court based on the presence of his fingerprints, which were the only evidence connecting him with the crime.

The advent of World War I familiarized millions of Americans with fingerprinting as a system of government id. Every one of the millions of Americans entering the military was fingerprinted.^[21] Hundreds of thousands of alien enemies were also subjected to government registration in 1918. Such persons were required to “execute in triplicate a registration affidavit … including fingerprint identifications.” Failure to carry their registration card on their persons was punishable by a fine of up to $ 2000 and imprisonment for up to five years ^[22]. The German-American alien registration was administered by the federal government’s Bureau of Investigation of the Department of Justice. It was here that J. Edgar Hoover became a law clerk on July 26, 1917, and a few months later was assigned to John Lord O’Brian, newly named assistant to the Attorney General for war work. “Hoover’s job was the registering of more than one million enemy aliens” and it was here he observed the powerful potential of all-inclusive government fingerprinting. ^[23]

The year 1924 was a pivotal year for the Bureau of Investigation. On May 10th, J. Edgar Hoover was appointed as Acting Director of the Bureau. In July, Congress adopted a law that created the Identification Division of the Bureau. The fingerprint records of the National Bureau of Identification (established by the International Association of Chiefs of Police) and the federal fingerprint files at the Leavenworth Penitentiary Bureau were consolidated into one national repository located in Washington D.C. housing about 800,000 records. Hoover ultimately embarked on a propaganda campaign to expand the fingerprint files of the Bureau (which officially became the FBI or Federal Bureau of Investigation on July 1, 1935). Ultimately, the FBI came to house “the world’s largest collection of fingerprints.” ^[24] Nevertheless, Americans were never convinced to accept universal fingerprinting. However, a 1956 statistic demonstrates how far fingerprinting encompassed the civilian population. “Of the total of 141,231,713 fingerprint sheets on file with the FBI, no less than 112,096,777 were not those of criminals, but of respectable permanent or temporary residents of the United States who never had any brushes with the law.” ^[25]

Panoptic Surveillance or Free Market Identification?

As one historian of criminal identification has noted, the story of fingerprinting after the mid-1920s is the record of taking “criminal identification systems to the next level of panoptic surveillance, to allow law enforcement authorities to follow criminals across greater expanses of time and space, and to draw more tightly the web of state-sponsored surveillance.” ^[26] In 1925, New York City Police Chief Richard Enright called for the mandatory fingerprinting of all New York City residents. In 1929, the federal government began fingerprinting all civil servants. In 1931, the U.S. Supreme Court decided that the police could fingerprint all suspects (in advance of their trial and conviction) without any specific statutory authority. In 1932, the kidnapping of the Lindbergh baby gave credibility to the claims of government officials wanting to fingerprint all children. In 1936, the City of Berkeley, California inaugurated a voluntary city-wide fingerprint campaign of residents. In 1937 the FBI received the prints of the members of the Civilian Conservation Corps; in 1939 prints of all aliens, as well as workers of the Works Progress Administration were turned over to the FBI. During the mid-1930s, the armed forces began turning over fingerprints of enlistees to the FBI. As the American Civil Liberties Union asserted in 1938, “[F]ar from being an innocent means of identification, the fingerprint drive is an early – and effective – move in the direction of a general regimentation of the population.” ^[27] “By incorporating millions of prints collected typically as a condition of employment, the FBI dramatically improved its ability to identify criminal suspects by increasing the number of prints against which it could compare new, unidentified prints. In so doing, it altered the function of these prints from fulfilling a one-time work-eligibility requirement into providing an enduring identity record with which officials could monitor the” geographic movement, economic activities, and social and political deviance of many people residing in the United States. ^[28]

To Hoover and other government officials, the national fingerprint system he developed “represents an impressive resource for state surveillance” and power. “Through this system the state has extended its eyes and ears over a vast territorial expanse and provided itself with a depth of memory unmatched by recollections of individual bureaucrats.” Fingerprint records, birth certificates, social security numbers, all these elements of official identity “constitute a critical element of the state’s power base.” ^[29] With the successful fingerprinting of aliens during World War I, fingerprinting “took on a new connotation of conformity,” which belied its earlier connections to the criminal population. Government programs to collect the fingerprints of military enlistees, government employees, and immigrants “established the expectation that all people – not just criminals – should be fingerprinted and assigned official identities that would permanently inscribe them in a centralized, national record-keeping system.” ^[30]

Would there be any basis for demands for universal fingerprinting, societal-wide id cards, or a computerized id database in a voluntaryist society? Probably not. Apart from the politically-induced urge to conquer and control that exists in a statist society, there is another main reason for the creation of official identities in such a society. This stems from the historical fact that governments and not voluntary, private enterprises have been responsible for providing protection from criminals and for building and maintaining the roadways. While there is a legitimate need for both these services, there is no necessary reason that they be provided by coercive government. The point is that whoever is responsible for the provision of roads and defense from criminals is responsible for constructing a system to identify wrongdoers. If private organizations were responsible for these services, it would be up to them to develop some sort of viable identification system; if it is the State that is responsible, then it is the State that must employ such systems. However, it should be readily apparent that the means available to the State differ from those available to private organizations. The State outlaws all competition, collects its revenues under threat of confiscation, and is able to coercively monopolize identification services.

Undoubtedly there would be a myriad of ways that people would be identified in a free society. The “bad apples”, or wrongdoers, would not necessarily spoil the barrel for the innocents, as happens in a statist society. Public sentiment against civilian fingerprinting was right, for it rested on the common law presumption that a person was innocent until proven guilty. Competitive businesses that exist by satisfying the customer would find ways to isolate the “bad apples,” without arousing the ill-will of its lawful patrons. Just as there is no single, universal and mandatory credit card (as there would be if government were responsible for issuing credit cards), there would be no single, universal id requirement. Entrants to Disney World would be identified one way; entrants to Busch Gardens probably another; entrants to the Super Bowl another. We have no way of knowing what alternatives to official State id might be generated on the competitive market. All we can say is that the State entered the identification business because most people mistakenly accepted the assumption that

the State should operate the roads, the police, and prisons. So while the question “Your papers, please” might arise in a voluntaryist society, it would more likely be in the form “Your landowner’s contract, pass, or ticket, please” to validate one’s right to be present upon a given piece of property or to demonstrate one’s right to be using a privately owned roadway. It would not be a demand from the police that would land you in jail if you did not comply. ^[31]

Endnotes

[1] Jane Caplan and John Torpey, eds., DOCUMENTING INDIVIDUAL IDENTITY, Princeton: Princeton University Press, p. 49.

[2] For the complete reference and citation see ibid., p. 89.

[3] Pamela, Sankar, “State Power and Record-Keeping: The History of Individualized Surveillance in the United States, 1790-1935,” Ph.D. diss., University of Pennsylvania, 1992. Call No. P 002 1992 S 227, pp. 4-5.

[4] ibid., p 19.

[5] Theodore Lowi, INCOMPLETE CONQUEST, 1981, p. 13.

[6] op. cit., Sankar, pp. 19 and 245.

[7] Imagine what would happen if the IRS had an up-to-date list of every person in the country. It could immediately establish from its taxpayer database, who was not filing and paying taxes. It could then investigate the non-payers in an effort to increase government revenues.

[8] ibid., p. 119. Sankar points out that the United States lacked “centralized record-keeping facilities, not only in penitentiaries, but also for most legal affairs,” well into the 20th Century.

[9] ibid., p. 18.

[10] ibid., pp. 18-19.

[11] ibid., p. 282.

[12] ibid., pp. 2-3.

[13] ibid., pp. 155-156.

[14] Alphonse Bertillon, SIGNALETIC INSTRUCTIONS, Chicago: The Werner Company, 1896, p. viii. Also cited in Simson Garfinkel, DATABASE NATION, Sebastopol: O’Reilly, 2000, pp. 40-41.

[15] ibid., p. 40.

[16] Henri Souchon, “Alphonse Bertillon,” in John Philip Stead ed., PIONEERS IN POLICING, Montclair: Patterson Smith, 1977, pp. 121-147 at p. 139.

[17] See John J. Cronin, “The Fingerprinters: Identification as the Basic Police Science,” in John Philip Stead, ed., PIONEERS IN POLICING, Montclair: Patterson Smith, 1977, pp. 159-176.

[18] ibid., p. 172.

[19] ibid., p. 173.

[20] Simon Cole, SUSPECT IDENTITIES: A History of Fingerprinting and Criminal Identification, Cambridge: Harvard University Press, 2001, p. 152.

[21] Edward H. Murphy and James E. Murphy, FINGER PRINTS FOR COMMERCIAL AND PERSONAL IDENTIFICATION, Detroit: International Title and Recording and Identification Bureau, 1922, p. 6.

[22] op. cit., Sankar, p. 264.

[23] Unable to verify location of this quote from my notes, but may possibly be in Patrick V. Murphy, “John Edgar Hoover,” in John Philip Stead, ed., PIONEERS IN POLICING, Montclair: Patterson Smith, 1977.

[24] op. cit, Cole, pp. 236 and 249.

[25] Jurgen Thorwald, THE CENTURY OF THE DETECTIVE, New York: Harcourt, Brace & World, Inc., 1956, p. 110.

[26] op. cit., Cole, p. 223.

[27] ibid., p. 248 citing THUMBS DOWN! The Fingerprint Menace to Civil Liberties, New York; American Civil Liberties Union, 1938, p. 18.

[28] Pamela Sankar, “DNA-Typing: Galton’s Eugenic Dream Realized,” in Jane Caplan and John Torpey, eds., DOCUMENTING INDIVIDUAL IDENTITY, Princeton: Princeton University Press, 2001, p. 279.

[29] op. cit., Sankar, “State Power and Record-Keeping,” pp. 315-316.

[30] ibid., p. 268.

[31] An interesting exchange is found the Appendix to Opinion of the Court in Brown v. Texas (443 U.S. 47 [1979]). Brown refused to identify himself and was “arrested for violation of a Texas statute which” made “it a criminal act for a person to refuse to give his name and address to” a police officer:

THE COURT: … I’m asking you why should the State put you in jail because you don’t want to say anything.

MR. PATTON [Prosecutor]: Well, I think there’s certain interests that have to be viewed.

THE COURT: Okay, I’d like to tell me what those are.

MR. PATTON: Well, the Governmental interest to maintain the safety and security of the society and the citizens to live in the society … outweigh the interests of an individual for a certain amount of intrusion upon his personal liberty. I think these Governmental interests outweigh the individual’s interest in [443 U.S. 47, 54] this respect, as far as simply asking an individual for his name and address under the proper circumstances.

THE COURT: But why should it be a crime to not answer?

MR. PATTON: Again, I can only contend that if an answer is not given, it tends to disrupt.

THE COURT: What does it disrupt?

MR. PATTON: I think it tends to disrupt the goal of this society to maintain security over its citizens to make sure they are secure in their gains and their homes.

THE COURT: How does that secure anybody by forcing them … to giv[e] their name and address … ?

MR. PATTON: … [I]t’s presumed that perhaps this individual is up to something [illegal] … .

THE COURT: … I’m not asking whether the officer shouldn’t ask questions. I’m sure they should ask everything they could possibly find out. What I’m asking is what’s the State’s interest in putting a man in jail because he doesn’t want to answer something. I realize lots of times an officer will give a defendant a Miranda warning which means a defendant doesn’t have to make a statement. Lots of defendants go ahead and confess, which is fine if they want to do that. But if they don’t confess, you can’t put them in jail, can you, for refusing to confess to a crime?

Would there be demands for universal fingerprinting, id cards, or id databases in a voluntaryist society? Probably not. The main reason for their existence is the political urge to conquer and control. It could be argued that governments have used their roles in regulating health care, providing police, protective services, and the roadways as a way of “requiring” that all their citizens be identified. By licensing the doctors and midwives who provide birth and death care, by effectively monopolizing provision of roads, and by being the primary provider of prisons, governments leave practically no alternatives to escape from their identification processes. However, it is reasonable that whoever operates medical, protection, and/or transportation services must have some system for identifying valid users, violators, and wrongdoers. If private organizations were responsible for these services, it would be up to them to develop viable identification systems – but such systems would be subject to competition from other providers and suppliers. There would be no drive to have universal identification, or to make it compulsory that everyone have a government number. Only a coercive government – that outlaws all competition and survives by taxation – could demand that everyone have an official state identity.

Undoubtedly there would be a myriad of ways that people would be identified in a free society. The “bad apples,” or wrongdoers, would not necessarily spoil the barrel for the innocents, as happens in a statist society. Public sentiment against civilian fingerprinting was right, for it rested on the common law presumption that a person was innocent until proven guilty. Competitive businesses that exist by satisfying customers would find ways to isolate the “bad apples,” without arousing the ill-will of their lawful patrons. Just as there is no single, universal, mandatory credit card (as there would be if government were responsible for issuing credit cards), there would be no single, universal id requirement. Entrants to Disney World would be identified one way; entrants to Busch Gardens probably another; entrants to the Super Bowl another. We have no way of knowing what alternatives to official State id might be generated on the competitive market. All we can say is that the State entered the identification business because most people mistakenly accepted the assumption that the State should operate the roads, the police, and prisons. So while the demand “Your papers, please” might arise in a voluntaryist society, it would more likely be in the form “Your landowner’s contract, pass, or ticket, please” to validate one’s right to be present upon a given piece of property or to demonstrate one’s right to be using a privately-owned roadway. It would not be a demand from the police that would land you in jail if you did not comply. [31]

Introduction: Why?

Most of us living in the United States are accustomed to calling this country the most important bastion of the “free” world. If that is so, why is it that we now hear increased demands for national identification cards which would allow our government to number us like slaves and literally keep track of our every movement? Why do our automobiles and pickups have to be registered with our state governments, when our computers, photocopies, television sets, power tools, and other personal property do not? Why does the government require that we pass a state test in order to operate “our” cars? Why do we have government-issued drivers licenses, rather than ones issued by our insurance companies, driver’s schools, or private safety institutes? Why is the federal government now calling for standardization of state-issued drivers licenses? What is the history of these government imposed requirements and could all of this be part of a long-term pattern – deliberate or otherwise – that is leading directly to national ID? The purpose of this paper is 1) to shed some light on the history of drivers licenses and state vehicle registration; and 2) to explore the implications of government-issued drivers licenses and vehicle registration. These topics are important to understand because the calls for national identification cards would be far fewer if we did not already embrace state-issued documents certifying our birth, identity, and driving “ability.” If we accept the principle that government ought to be involved in birth certificates and driver licensing, then why shouldn’t it be involved in issuing national I.D.? By what principle of logic can you endorse the one and oppose the other?

Although we expect the federal and state governments to build and maintain the roads, the development of the automobile was strictly a free market phenomenon, largely spawned by individual entrepreneurs and inventors, such as Ransom Olds, James Packard, and later Henry Ford, whose ideas about mass production revolutionized car manufacturing. These backyard American tinkerers took machined steel, crafted their own internal combustion engines, and mounted them on their old farm wagons and horse-drawn buggies. The results were some of the earliest self-propelled vehicles, which they soon refined and offered for sale. >From the very start of this process, government had no involvement. The steel, the wagons, the motors: all were the private property of those who built automobiles. Hence, there was no inherent necessity or reason that these new automobiles had to become subject to government regulation. In fact, “[d]uring the early years of the motor age, any person could drive an automobile or truck without restrictions … . One [was] as free to operate a motor vehicle as to drive a span of horses.” ^[1] Private roads could have evolved without government controls, much like in the early petroleum industry, where private parties constructed their own pipelines on private property. But since the roadways had always been owned, operated, and regulated by local or state governments (federal aid did not begin until 1916), few people questioned the state’s jurisdiction over the automobile and driver.

Before 1901, state governments had little to do with motoring. Most early legislation affecting the automobile and other wheeled vehicles “was the product of the cities, towns, and villages.” ^[2] For example, in 1898 the city of Chicago had in force a law which required that the owners of “wagons, carriages, coaches, buggies, bicycles, and all other wheeled vehicles propelled by horse power or by the rider” pay an annual license fee. ^[3] (The law was ultimately declared unconstitutional.) A year later, Chicago passed another ordinance which “required the examination and licensing of all automobile operators” in the city. ^[4] At the same time, New York City had an ordinance which required that drivers of steam powered cars be licensed engineers. ^[5] Mitchell, South Dakota, (population 10,000: a city supporting two newspapers and a university) imposed a total ban on the use of motorized vehicles!

From these humble origins, government regulation of vehicle operation and operators has evolved to the point where hundreds of millions of American adults have state drivers licenses; hundreds of millions of their vehicles carry state license tags, registration cards, and state certificates of titles. Short of issuing every adult a federal identification card, the drivers license (and its companion non-operator identification card) is the most widely government-provided and utilized means of identification in the United States. Legally, a drivers license is to be carried whenever one is operating a motor vehicle on a government road, so millions of Americans have been conditioned to use a government-issued card to prove who they are and to show that they have been granted a state privilege to operate a vehicle. It is only a small step to visualize millions of Americans carrying a federally-issued smart card programmed to serve as personal identification, drivers license, bank card, credit card, and medical history dossier. Hence, I believe it is accurate to describe state drivers licenses as the precursor of national ID cards.

Driver Licensing

Although there is no comprehensive history of the establishment of automobile drivers licenses, personal anecdotes, government legislative records, and histories of the automobile offer many details about early licenses. (By a drivers license, I refer to the requirement that motor vehicle drivers have a valid, state-issued piece of paper in order to legally drive; and by driver license examination, I mean the operator has passed a state-administered written and/or oral test about driving rules, a vision test, and a state-administered driving test proving his skills.) One thing is clear from the historical record: While the justification for government licensing of automobile operators was sometimes a safety issue, in a majority of the states, driver competency examinations were not imposed until years after the initial licensing regulations were adopted.

In the early days of motoring, every American learned to drive without any assistance from local, state, or federal government; most learned to drive safely; and most never had any government document to identify themselves or to prove that they had ever passed any government driving test. The states of Massachusetts and Missouri were the first to establish drivers licensing laws in 1903, but Missouri had no driver examination law until 1952. Massachusetts had an examination law for commercial chauffeurs in 1907, and passed its first requirement for an examination of general operators in 1920. The first state to require an examination of driver competency was Rhode Island in 1908 (it also required drivers to have state licenses as early as 1908). South Dakota was both the last state to impose drivers licenses (1954), and the last state to require driver license examinations (1959). ^[6] Our contemporary belief that drivers licenses were instituted to keep incompetent drivers off the road is a false one. The vast majority of Americans who drove already knew how to drive safely. Why the state governments demanded that they have a state-issued license and pass a government test appears to be more a matter of “control” than of public safety. Why early 20th Century Americans did not resist licensure and did not see where it might lead is another question.

Personal reminiscences of many elderly Americans verify this assertion. For example, one author in VINTAGE JOURNAL wrote that “I remember when the first drivers licenses came out. They cost 50 cents and you didn’t have to take a test.” ^[7] Here are a few other comments located on the internet:

In Jefferson County, Kansas “on July 8, 1947, someone from the county seat (Oskaloosa) came to Meriden to issue driver’s licenses. Anyone who was 16 years or older and paid the fee was immediately issued a drivers license. No test. The date was easy to remember because I was 16 on that day and did get my drivers license.” ^[8] [Licenses were first required in Kansas in 1931, and driving examinations in 1949.]

During the 1930s in Georgia … “you didn’t have to take a test for driving. You sent for the permit by mail.” ^[9] [There were no drivers licenses in Georgia until 1937, and no driving examination until 1939.]

In Missouri the gas stations sold drivers licenses — “no test. For 25 cents, they gave you a stub — you had this until the `real’ license came in the mail.” ^[10] [As noted, Missouri was one of the first states to require licenses (1903), but examinations were not required until 1952.]

In Washington state drivers licensing was started in 1921. “Applicant must furnish signatures of two people certifying that the person is a competent driver and has no physical problems that would impair safe driving.” ^[11] [Driving examinations were not initiated until 1937.]

James J. Flink presents a different point of view in his book, AMERICA ADOPTS THE AUTOMOBILE (1970). In his discussion of “Licensing of Operators” (pp. 174-178) he notes that “Automobile interests were well ahead of municipal and state governments by 1902 in recognizing that the compulsory examination of all automobile operators would be desirable. … Officials of both the American Automobile Association and the Automobile Club of America publicly advocated … that the states should certify the basic competence of all automobile operators by requiring them to pass an examination before being allowed on the road.” ^[12] It is clear, however, that widespread public sentiment did not exist to support these proposals. It was years before all the state governments passed such laws. In summarizing, Flink concludes that

Despite the motorist’s own desire to have their competence examined [an assumption which I would challenge] and certified, state governments still remained reluctant to take adequate action at the end of the first decade of the twentieth century. As of 1909, only twelve states and the District of Columbia required all automobile drivers to obtain licenses. Except for Missouri, these were all eastern states – Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, Pennsylvania, Rhode Island, Vermont, and West Virginia. In seven other states, only professional chauffeurs had to obtain operator’s licenses – … . The application forms for operator’s licenses in these nineteen states as a rule asked for little more information than the applicant’s name, address, age, and the type of automobile he claimed to be competent to drive. This might have to be notarized, but in the vast majority of these states a license to drive an automobile could still be obtained by mail. In the twelve states that all operators had to be licensed, a combined total of 89,495 licenses were issued between January 1 and October 4, 1909, but only twelve applicants were rejected for incompetency or other reasons during this period – two in Rhode Island and ten in Vermont. ^[13]

It is simply impossible to determine how well the general population complied with these laws. Flink offers a telling statistic, however: observing that a roadcheck in Boston, Massachusetts in 1904 revealed only 126 of the 234 motorists stopped were in compliance with Massachusetts state registration and licensing requirements. ^[14]

Vehicle Registration

“In the realm of government jurisdiction over traffic safety, matters at first fell to revenue collection agencies on the one hand and to law enforcement agencies on the other. Vehicles were initially licensed solely for the purpose of collecting revenue, and not for many years did the notion appear of vehicle inspection for safety purposes.” ^[15] Although the history of vehicle registration is nearly as sketchy and incomplete as the history of drivers licensing, some limited evidence is available to back up this statement. In New York, the first state to require vehicle registration (in 1901), the law required a motorist to display a state issued number or his initials on his automobile.^[16]  The system in widespread use today, which encompasses a state-issued certificate of title, an annual or biennial registration fee, and state-issued license plate, was unknown in numerous states, as late as 1967. ^[17] When registration was imposed, in most cases it was perennial, signifying that it only had to be completed once and that it lasted as long as the owner of the vehicle owned it or lived in the county in which it was registered. By 1905, 26 states had instituted vehicle registration, but only three of the twenty-six had annual registration requirements. By 1915, every state in the union had some sort of registration law, but it was not until 1921 that annual registration was required in all states.

In FILL’ER UP!: The Story of Fifty Years of Motoring (1952), Bellamy Partridge offers the following description of the evolution of vehicle registration in New York state:

Members of the [New York] state legislature, having officially discovered the motor vehicle, were not long in working out a method of imposing a tax on it by requiring registration. Motorists did not particularly object to [having their vehicles] registered. It gave them a feeling of importance, and many of them smiled as they read the printed instructions (which had come with the applications for registration):

“Every owner of an automobile or motor vehicle shall file in the office of the Secretary of State a statement of his name and address and a brief description of the character of such vehicle and shall pay a registration fee of $ 1.00. Every such automobile or motor vehicle shall have the separate initials of the owner’s name placed on the back thereof in a conspicuous place. The letters of such initials shall be at least three inches in height.”

Registration in New York state for the year 1901 was 954 motor vehicles, … . The following year saw an increase of 128. However, the initials proved to be an unsatisfactory form of identification, since there were numerous duplications and the printed letters were not always easy to read. The suggestion was made that the motor vehicles should be named as in registration of vessels so that duplication might be avoided. But this method failed of acceptance and the state began registering the vehicles according to number. For each car registered, the state issued a numbered metal disc. ^[18]The disc could be carried in the pocket of the motorist, but he was required at his own expense to display the figures in Arabic numerals on the back of the vehicle where they would be plain and visible.

This brought out some fancy numerals of every color of the rainbow, and quite a few numbers from people who had not bothered to get a disc. Artistically inclined motorists painted their numbers on the body of the car, surrounded by landscapes, sunsets, or other ornamental designs. There were complaints about this, and the following year the state began to furnish number plates and raised the registration fee to $ 2. ^[19]

Vehicle registration appears to have originated for two primary reasons. The first is alluded to in the opening lines of the above quote. Registration and license fees were viewed as “a major source of revenue for highway purposes. Until 1929, these sources provided the major share of revenue derived from highway users.” ^[20] The second reason was the need to be able to identify vehicles, both for purposes of taxation as well as for identifying those that were operated recklessly or unsafely. Flink derides the opposition to Detroit’s vehicle registration law of 1904: “They claimed that the $ 1 fee [for registration] constituted double taxation of personal property and that the ordinance was unjust `class legislation’ because owners of horse-drawn vehicles were neither forced to carry identification tags nor deprived of the right to allow children under sixteen years of age to drive their vehicles.” ^[21]Flink then adds:

Undoubtedly, the most important reasons for motorists’ objections to numbering ordinances remained covert. Motorists generally feared that the facilitation of identification of their vehicles would increase chances of arrest, fine, imprisonment, and the payment of damage claims. Also, registration helped tax assessors identify and locate automobile owners who were evading payment of personal property taxes on their cars. To cite but one example, it was estimated that in Denver one-third of the automobiles in the city had gone untaxed prior to the adoption of a registration ordinance. Since such motives could not be expressed legitimately, motorists were forced to cloak their cases in the respectable mantle of the constitution… . Probably the last such effort worth noting was a halfhearted attempt, undertaken after a year’s hesitation, by the National Association of Automobile Manufacturers to test the constitutionality of state motor vehicle registration laws in 1905. By then, however, most motorists had become convinced that “the continual wrangling with authorities was a much greater annoyance than carrying numbers.” ^[22]

The earliest registration laws were imposed by municipalities or counties, rather than by the states, and this proliferation actually led to the demand for federal registration of vehicles as early as 1905. Motorists in 1906 found the situation in Missouri deplorable. In order to drive legally in every county in that state, a motorist had to pay $ 295.50 in registration fees. The law was ultimately changed so that after June 14, 1907, only a single state-wide registration of $ 5 was required. Such registration expired “when either the vehicle was sold or [when] the owner’s county of residence changed.” ^[23] Flink points out that national registration would have been valid in all states and would have eliminated the confusion caused by “dinky legislatures, county boards, or town trustees and supervisors.” ^[24] Under the guise of “regulating interstate commerce,” both the American Automobile Association and the National Automobile Chamber of Commerce “backed a bill in the 60th Congress [1907] that would have required Federal registration for all vehicles.” ^[25] The bill died in committee “because legislators doubted the necessity for and the constitutionality of such an extension of power of the federal government,” and by 1910 the movement was diffused by “the general adoption of interstate reciprocity provisions and a trend toward increased uniformity in the motor vehicle laws of the various states.” ^[26]

Although there appear to have been no legal challenges to the constitutionality of requiring drivers licenses, there were a number of test cases in several states which challenged the legitimacy of the registration laws. Invariably these laws were upheld on the basis that they were a proper exercise of the police power of the state to provide for the health, safety, and comfort of the citizenry. ^[27] The earliest registration laws were justified by state authorities, as well as vehicle owners, by referring to “the need of identifying a vehicle with its owner as a protection against theft.” ^[28] In order to provide this service, the states created motor vehicle administrations and state highway commissions, and these bureaucracies required funds in order to function. It was invariably held by the courts that fees collected for the registration of vehicles and for the maintenance of the highways were legitimate. In a discussion of “The Constitutionality of Motor Vehicle License Fees and the Gas Tax,” published in 1924, it was noted “that the State[s] had, without any doubt, the right to regulate the use of its highways and that in doing so [they] could compel the registration and numbering of automobiles; [and] that [they] could impose fees which would compensate the State for the expenses and costs which such legislation entailed, but that such fees had to be reasonable and fair…”. ^[29] An earlier case in New Jersey, ultimately sustained by the U.S. Supreme Court, held that “imposition of license fees for revenue purposes was clearly within the sovereign power of the State.” ^[30] As a test case in Detroit put it, vehicle registration requirements and fees were “a justifiable exercise of the police power in the interest of the safety of the travelling public,” ^[31] and this new form of taxation was accepted by the American populace so long as they believed it would be applied to “securing better roads.” ^[32]

Better Roads: Public or Private?

The extended use of the automobile increased the agitation for good roads during the first decades of the 20th Century. During those years, real and personal property taxes and other general revenues supplemented by State and local bond issues were the main source of road construction, improvement, and maintenance. At that time there were no interstates, or any well-traveled routes across the country. The first person to wage a national campaign for a transcontinental highway was Carl G. Fisher, the man who founded the Prest-O-Lite Company and inaugurated the Indianapolis 500 race in 1911. In September 1912, he publicly laid out plans for “a road across the United States,” which he dubbed the Coast-to-Coast Rock Highway. He calculated that the road could be graveled for about $ 10 million. “This money would be used to buy only basic road-building materials; the labor and machinery, he said, would be provided by the counties, towns and cities, along … the route,” which eventually became known as the Lincoln Highway. ^[33]

“To fund this grand project, Fisher proposed outright donations of cash from the manufacturers of automobiles and auto accessories.” He encouraged pledges of 1% of gross revenues (prorated at 1/3 of 1% for 3 years, or 1/5% of 1% for 5 years), and asked automobile owners, as well as members of the general public, to subscribe to an annual $ 5 membership. Frank A. Seiberling of the Goodyear Tire and Rubber Company immediately pledged $ 300,000. Portland cement companies all along the route made donations in kind, totaling many thousands of barrels of cement. ^[34] Other leading manufacturers waited to hear what Henry Ford thought of the project. If Henry Ford, with some 118,000 Model T’s on the road by 1912, offered his support, so would they; but as it turned out Ford did not believe in using his money to build the Coast-to-Coast Rock Highway. Writing on behalf of Henry Ford, James Couzens, secretary and treasurer of Ford Motor Co., informed Fisher:

Frankly the writer is not very favorably disposed to the plan, because as long as private interests are willing to build good roads for the general public, the general public will not be very much interested in building good roads for itself. I believe in spending money to educate the public to the necessity of building good roads, and let everybody contribute their share in proper taxes. ^[35]

Nor would Ford change his mind: “The highways of America should be built at taxpayers’ expense.” ^[36]

Although Ford’s refusal to support the private efforts of the Lincoln Highway Association stymied its attempts to build a transcontinental highway, Fisher, with the assistance of Henry B. Joy, president of Packard Motor Company, pressed on to provide marking for the entire route and to build at least one mile of experimental concrete highway in each of the states the route crossed. The test roadways were actually built in Ohio, Indiana, Illinois, Iowa, and Nebraska. The efforts of the Association, though only partially successful, gave some credence to Rose Wilder Lane’s statement in her 1943 book, Discovery of Freedom:

… American government should have never interfered with highways. Americans created a free, mutual association, the American Automobile Association, which was dealing with all the new questions arising from the invention of automobiles. Private enterprise originated and built the first trans-Continental highway [this statement is not true if it refers to the Lincoln Highway]; free manufacturers and car-owners would have covered this country with highways, as free Americans covered it with wagon-roads. Americans wanted cars and highways; no police force was needed to take their money from them and spend it for highways. And it is injustice to the Americans who do not own cars, to compel them to pay for highways. ^[37]

If American roadways had been private property, another question relating to the propriety of driver licensing would have been more easily resolved. Under common law, driving a team of horses, oxen, or mules was a matter of right. Such activities were clearly not a privilege granted to the individual by the state.

In one of the earliest decisions relating to registration and licensing, the Supreme Court of Illinois stated that the City of Chicago might regulate commercial activities, such as those engaged in by draymen, but “no reason exists why [licensing] should apply to the owners of private vehicles used for their own individual use exclusively, in their own business, or for their own pleasure, as a means of locomotion.”

Anything which cannot be enjoyed without legal authority would be a mere privilege, which is generally evidenced by a license. The use of the public streets of a city is not a privilege but a right. … A license, therefore, implying a privilege, cannot possibly exist with reference to something which is a right, free and open to all, as is the right of the citizen to ride and drive over the streets of the city without charge, and without toll, provided he does so in a reasonable manner. ^[38]

Over one hundred years have passed since this decision, and now the general legal consensus is that driving is a privilege, not a right. How we reached that point remains to be explained, but the actions of the American Bar Association’s National Conference of Commissioners on Uniform State Laws should not be overlooked. Organized in 1889, as part of an effort to standardize state laws, the Commissioners developed a Uniform Motor Vehicle Operation and Chauffeur’s License Act in 1926. ^[39] This was at a time when driving was still recognized as a common law right in at least the 8 states which issued no licenses (either operator or chauffeur). “Thus the ABA, under its self-appointed mandate to produce uniformity [of laws] among the states, labored to license every driver in America.” ^[40]

In 1935, a debate in the Texas legislature centered on the issue of whether or not Texans had a “God-given unalienable RIGHT TO DRIVE.” The Texas Senate had approved the American Bar Association’s Licensure Act, which viewed driving as a privilege, rather than a right. “The Texas House knew all to [sic] well that Texans had been driving cars and trucks for … years on the roads of Texas without approval from anyone.” ^[41] Thus the Texas’ House version of the law read as follows:

Every person in this State desiring to operate an automobile under the provisions of this law shall upon application and identification be issued an operator’s license to drive by the county clerk of the county in which the motor vehicle is registered. But every person in this State over the age of fourteen (14) years and who is subject to none of the disqualifications herein- after mentioned, shall have the right to drive and/or operate a motor vehicle, as that term is now defined by law, upon the public highways and roads of this State. ^[42]

Although the “right to drive” language was finally incorporated in Section 17 of the Texas law of 1935, it was removed by the legislature in 1937. Nevertheless, it is apparent that some Texans recognized the unalienable right to drive was being negated by the legislation and the American Bar Association’s Committee on Uniformity.

Conclusion

The end result of the ABA’s efforts of “creating a country-wide trend toward uniformity” and standardization may result in a multi-use federal or state-issued drivers license and/or identification card.^[43]  If a federally-issued smart card were used, it could be structured in such a way that “the revocation of driving privileges would allow you to keep the card and use it to function for other purposes without actually having the issuing authority repossess the card or require you to turn it back into them.” ^[44] A simple change in programming at the central data bureau would indicate to anyone checking the card that your driving privileges were temporarily suspended or denied, but you could use the card to draw money out of your bank account, to vote, or to identify yourself at the hospital.

Although we do not have a national identification card (yet), the drivers license of today is clearly an indication of what might occur. “Embossed with a photograph, current address, a validated signature, and (often) a social security number, the license is routinely requested by merchants when asked to accept a check, by vendors of alcohol to validate a young person’s age, by voter registrars to enfranchise individuals, or by numerous others who need some reliable form of personal identification. … A drivers license is the only form of identification held by a majority of Americans and controlled and distributed by the State. In 1989, 79 percent of females and 91 percent of males (aged 16 and older) in America held drivers licenses. In all, 165 million Americans h[e]ld licenses as of 1989” and the percentages and numbers are probably higher today. ^[45] Such multitudinous contact with the State is not always ennobling. As the Secretary’s Advisory Committee on Traffic Safety noted in February 1968:

… the average adult American citizen [has] more direct dealings with government through licensing and regulation of the automobile than through any other single public activity. Not all of these dealings [are] especially uplifting, and some [have] acquired implications all the more ominous because they so quickly came to be regarded as natural. Thus in the course of the regulation of highway traffic, the incidence of arrest [for violation of motor vehicle laws] by armed police in the United States has undoubtedly reached the highest point for any civilization, democratic or totalitarian, in recorded history. While ours is assuredly a free society, it has nonetheless become commonplace for an American citizen to be arrested by an armed officer of the law. Indeed, so frequent have such arrests become – in 1965 the California Highway Patrol alone made 1 million – that experience has ceased to be regarded for what it is at law and has come to be looked on as a rather routine accompaniment of modern life. One may well question whether the instincts of a free people will not one day be impaired by the habit of being arrested without protest; certainly the pervasiveness of automobile-related regulatory activity is a matter about which we must all agree. ^[46]

Drivers licensing and vehicle regulation are precursors to national ID. Both are trademarks of totalitarianism. Read the above quote again if you do not believe me!

Is there not something Orwellian about the way the requirements for compulsory birth certificates and compulsory drivers licenses complement each other? Isn’t this development a perfect example of how government manages to spin a web of power to ensnare unaware citizens? No one, obviously, planned the invention and development of the motorized vehicle, but notice how government has used the automobile to control the citizenry and promote submission. First, the government “owns” the roads which it forces everyone to pay for regardless of how much they use them, or whether or not they own and drive a vehicle. Government ownership of the roads is socialism, despite the fact that most people refuse to recognize it as such. Second, the government began requiring that children have birth certificates. That demand preceded, and was, obviously, unrelated to the issuance of drivers licenses. Then the government required drivers licenses, but there was no need to show proof of who you were. Then it became a precondition to the issuance of a drivers license that one must present a government-issued birth certificate. The loss and denial of the common law right to drive (without any sort of government license) upon the state’s roads only accelerated this trend toward total control. ^[47]

Pick any piece of government legislation that has been implemented in the last fifty years. Consider anti-bank secrecy and money laundering legislation: what started out as a requirement that banks keep microfilmed copies of customers’ checks has turned into a call for electronic banking, where the use of cash in amounts larger than $ 3000 must be reported by both the banks and the parties receiving the cash. Look at other examples: health care; firearms regulations; the drug war; asset forfeiture programs. Practically every new piece of legislation leads to further and further government intervention. Haven’t the uses for Social Security numbers expanded far beyond the wildest expectations of everyone? Won’t the same hold true for national ID?

When the government has the technical ability to identify and track every person in its jurisdiction, and make an outlaw and criminal of any person who refuses to carry government “papers,” then we have truly reached the situation described in Orwell’s 1984. Additionally, consider the mission creep built into these ID proposals. Not only will a national ID card keep track of who we are, they have the potential to show where we have been, what health care we have received, what we have spent our money on, where we have spent it, whether or not we have voted, and whether or not we have paid our taxes.

What is it about the operation of government that ordinarily makes it expand and expand? “How is it that everything the government does leads to greater control for it, less freedom for us?” ^[48] Theodore Lowi, a political scientist at Cornell University in the late 1970s and early 1980s, did a good job of explaining the reason why we always seem to get more government, rather than less. In his book, Incomplete Conquest: Governing America, he wrote:

Every action and every agency of contemporary government must contribute to the fulfillment of its fundamental purpose, which is to maintain conquest. Conquest manifests itself in various forms of control, but in all those forms it is the common factor tying together into one system the behavior of the courts and cops, sanitation workers and senators, bureaucrats and technocrats, generals and attorney generals, pressure groups and presidents. ^[49]

Although Lowi did not include them, we might add government health departments (that issue birth certificates), government motor vehicle administrations (that issue driver licenses), the Immigration and Naturalization Service (which is responsible for keeping track of aliens residing in the US), and the Office of Homeland Defense (which is responsible for waging the War on Terrorism). If and when it comes, a national ID program will be part and parcel of Lowi’s description of the “fundamental purpose” of government “which is to maintain conquest.” ^[50]

Endnotes

[1] Richard Shelton Kirby, “Motor Vehicle Accidents,” Volume 11, ENCYCLOPEDIA OF THE SOCIAL SCIENCES (New York: The Macmillan Company, 1933), p. 72.

[2] Bellamy Partridge, FILL’ER UP! The Story of Fifty Years of Motoring (New York:: McGraw-Hill Book Company, 1952), p. 45.

[3] The City of Chicago v. Lorin C. Collins, Jr. et. al., 175 Illinois 445 (October 24, 1898), pp. 445 – 459 at p. 446.

[4] James J. Flink, AMERICA ADOPTS THE AUTOMOBILE, 1895-1910 (Cambridge: The MIT Press, 1970), p. 174.

[5] ibid.

[6] “Year of First State Driver License Law and First Driver Examination,” Table DL-230 (June 1977) in U.S. Department of Transportation, Federal Highway Administration, HIGHWAY STATISTICS SUMMARY TO 1975, (Washington, D.C.: U. S. Government Printing Office), Report No. FHWA-HS-S75, at page 71.

[7] Mary O. Stone, “Motorcycle keeps 90 year-old man going,” at http://www.vintagejournal.com/VJ0701/index.cgi?template=tp100&page=motorcylcekeeps.htm

[8] http://www.ku.edu/~medieval/kansas-l/1997/10/msg00007.html

[9] http://www.angelfire.com/ga/GaBelle/volume1.html

[10] http://genealogyinstlouois.accessgenealogy.com/memories.htm

[11] http://seattletimes.nwsource.com/news/local/html98/time24m/20000724.html

[12] Flink, op. cit., p. 175.

[13] ibid., pp. 177-178.

[14] ibid., p. 187.

[15] REPORT OF THE SECRETARY’S ADVISORY COMMITTEE ON TRAFFIC SAFETY, U.S. Department of Health Education and Welfare, February 29, 1968 (Washington, D.C.: U.S. Government Printing Office), p. 6.

[16] HIGHWAY STATISTICS SUMMARY TO 1975, op. cit., p. 43: “Year In Which Motor Vehicles Were First Registered,” Table MV-230.

[17] REPORT OF THE SECRETARY’S ADVISORY COMMITTEE ON TRAFFIC SAFETY, op. cit., p. 120.

[18] The State of South Carolina at one time issued metal discs which functioned as drivers licenses. The discs were stamped with the name, address, and birth date of the driver, and often kept on the same ring as one’s car keys.

[19] Partridge, op. cit., pp. 46-47.

[20] HIGHWAY STATISTICS SUMMARY TO 1975, op. cit., p. 42.

[21] Flink, op. cit., p. 170.

[22] ibid., pp. 170-171.

[23] ibid., p. 172.

[24] ibid.

[25] Partridge, op. cit., p. 197.

[26] Flink, op. cit., p. 173.

[27] Hendrick v. State of Maryland, 235 U.S. 610 (1915). Hendrick, a resident of the District of Columbia, was arrested for driving in Prince George’s County in July 1910, without a Maryland certificate of vehicle registration. At that time, Maryland did not extend reciprocity to the residents of the District of Columbia.

[28] Basil Creighton, “Motor Vehicle Administration,” in Jean Labatut and Wheaton J. Jane (eds.), HIGHWAYS IN OUR NATIONAL LIFE (Princeton: Princeton University Press, 1950), p.442.

[29] Henry R. Trumbower, “The Constitutionality of Motor Vehicle License Fees and the Gasoline Tax,” PUBLIC ROADS (November 1924), pp. 7-10, 14, at p. 9.

[30] ibid., p. 8 referring to Kane v. New Jersey (81 NJ 594) and affirmed by the U.S. Supreme Court (242 U.S. 160) [1916].

[31] People v. Schneider, 139 Michigan Reports 673 (April 1905) at p. 679. Schneider was convicted of operating a vehicle within the limits of the city of Detroit “without having first registered” the vehicle “and without placing thereon a number, as required by an ordinance of said city.” The Michigan Supreme Court upheld his conviction.

[32] Flink, op. cit., p. 174.

[33] Drake Hokanson, THE LINCOLN HIGHWAY: Main Street Across America (Iowa City: University of Iowa Press, 1988), p. 6.

[34] THE LINCOLN HIGHWAY: The Story of a Crusade That Made Transportation History (New York: Dodd, Mead & Company, 1935), p. 20 and p. 127. What is so interesting is that these people contributed lots of their OWN time and money to the project. They didn’t immediately turn to the government for help: When Carl Fisher asked “Why can’t we build a highway across the continent from New York to San Francisco?” he meant “‘we’ literally. He had no faith in the political system’s ability to accomplish the task. If there was to be such a road, the automobile industry, which had the highest stake in the venture, would have to build it.” This last quotation is from Jerry M. Fisher, THE PACESETTER: The Untold Story of Carl G. Fisher (Fort Bragg: Lost Coast Press, 1998), p. 77.

[35] Hokanson, op. cit., p. 8.

[36] ibid., p. 9.

[37] Rose Wilder Lane, THE DISCOVERY OF FREEDOM (New York: Arno Press & The New York Times, 1972), p. 213. This quote appears near the end of Section 7, “The Right to Vote,” in Part Two, Chapter V, “The Third Attempt.”

[38] The City of Chicago v. Lorin C. Collins, Jr. et. al., 175 Ill 445 (October 24, 1898) at pp., 456-457. The Court affirmed the illegality of the Chicago “Wheel Tax” ordinance.

[39] See National Conference of Commissioners, HANDBOOK OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS AND PROCEEDINGS OF THE THIRTY-SIXTH ANNUAL MEETING, Denver, Colorado, July 6-12, 1926. See pp. 458-459, 462-463, 478-479, and 524-525. Copy of this book was obtained from the Southern Methodist University, Law School Library, Call No. KF165.A2 (1926).

[40] “The Texas Driver’s License Scam,” a privately circulated manuscript prepared by Michael Ellis and the Ellis Family of Carrolton, TX circa 1995. See page 2.

[41] ibid., p. 3.

[42] JOURNAL OF THE HOUSE OF REPRESENTATIVES OF THE SECOND CALLED SESSION OF THE FORTY-FOURTH LEGISLATURE BEGUN AND HELD AT THE CITY OF AUSTIN, OCTOBER 16, 1935, (Amendments offered to Senate Bill 15, p. 278).

[43] Partridge, op. cit., p. 198.

[44] Dee Ann Divis, “Bill would push driver’s license with chip,” THE WASHINGTON TIMES, May 1, 2002, citing Shane Ham, a senior policy analyst at the Washington-based Progressive Policy Institute.

[45] Steven L. Nock, THE COSTS OF PRIVACY: Surveillance and Reputation in America (New York: Aldine De Gruyter, 1993), p. 59.

[46] REPORT OF THE SECRETARY’S ADVISORY COMMITTEE ON TRAFFIC SAFETY, op. cit., p. 3. Italics in the original.

[47] It would be interesting to find out when the various states began demanding presentation of a birth certificate in order to obtain a drivers license, and how the federal government influenced this demand. No information on this topic was found during my research.

[48] Claire Wolfe made this statement while critiquing this chapter for me.

[49] Theodore Lowi, INCOMPLETE CONQUEST: GOVERNING AMERICA (New York: Holt, Rinehart and Winston, 1981, Second Edition), p. 13.

[50] Simson Garfinkel in his WIRED article of February 1994 (at http://www.wired.com/wired/archive/2.02/dmv.html), “Nobody Fucks with the DMV: The government is using your driver’s license to play Big Brother,” points out that “Oregon has 109 different offenses that can result in the temporary suspension of a driver’s license; 50 of them have nothing at all to do with driving.” As a means of enforcing other government laws, our defacto national ID – the drivers license – already acts as lever to exert governmental control over the driving populace in most of the states. Imagine how much more control could be induced by means of a national ID.

by Carl Watner
Number 118

Introduction

When the Constitution of the United States was finally adopted by the thirteen states of the Articles of Confederation, the new federal government had no power to collect direct personal income taxes from each citizen or to record their births and deaths except once every ten years (in conjunction with the decennial census which was required to determine the apportionment of congressmen in the House of Representatives). “There was not the remotest idea in the minds of the framers of the Constitution as to the necessity of a complete record of vital statistics … .” [1] Even among the States at that time, there was little concern for the official, civil registration of births and deaths. As one commentator noted during the 1860s, it was probably impossible for a large portion of the American populace to prove that they were ever born, that “their parents were ever married, and that they have any legitimate right to the name they bear, … .” [2] Yet today, nearly every person has a state-issued birth certificate. The constitutional directive for the decennial census has been expanded to such an extent that serious consideration is now being given to assigning a federal identification number to each and every citizen and resident alien. How did we, in the United States, move from the point where very few of our ancestors were concerned about even having a record of their births (much less having a public official make that record) to the point where we are ready to accept a government number to identify us? The main purpose of this article is to answer that question by presenting an overview of the evolution of government-mandated birth and death certificates in the United States.

In the Beginning

When the colonists that settled at Jamestown, Virginia and Plymouth Rock, Massachusetts arrived in North America, there already existed a history of birth and death registration in the older European countries. For example, in 1538, Lord Thomas Cromwell had ordered that the English parishes be responsible for keeping registers to record baptisms and burials. Twenty-five years later, the Council of Trent made it a law of the Catholic Church that registers of births and marriages should be kept. [3] However, since the Puritans and Pilgrims took the view that marriage was a civil event, rather than a religious one, they held that the registration of births and deaths should be a government responsibility, rather than an ecclesiastical one. Therefore, in 1639 the General Court of the Massachusetts Bay Colony ordered that births and deaths should be reported to the town clerk by parents or household owners within one month of their occurrence. Thus Massachusetts holds the record for being

the first state in the Christian world which recorded births, deaths, and marriages by government officers; … the first state in the world which recorded the dates of the actual facts of births, deaths, and marriages rather than the subsequent ecclesiastical ceremonies of baptisms, burials, and weddings; and … the first state in the world which imposed on the citizen the duty of giving notice to the government of all births, [d]eaths, and marriages occurring in his family. [4]

The Connecticut colony followed suit in 1644, and the New Plymouth colony did likewise in 1646. John Locke, in his “Fundamental Constitutions” for the government of the Carolinas, which was prepared in 1669, made provision for a “Registry in every Signiory, Barony, and Colony, wherein shall be recorded all the births, marriages, and deaths that shall happen.” [5]

During the 18th Century, there was little concern on the part of American governments, either federal or state, for the recording of vital statistics. In 1785, James Madison proposed a law in the Virginia Assembly which would have created a system of statewide birth and death registration. It was defeated in the Virginia Senate. Similarly, on the federal level, under the North West Ordinance of 1787 there was no provision for the registration of births and deaths. Only marriages were required to be recorded within three months. New York City first recorded deaths officially in 1803, but it was not until 1847 that the city began recording births and marriages. Very few people, except the most wealthy, who were concerned with their legal inheritance, had any real interest in official public records. Until the last half of the 19th Century, the recording of births, deaths, and marriages was generally considered either a semi-religious or social function. Such events, if they were recorded at all, were more likely to either be entered in a family’s Bible, or a church register, than registered by a clerk in a government office.

It was largely the development of the public health movement and the advancements of medical science which propelled the demand for official vital statistics in the United States. Until the early 1900s, the American States might as well have been foreign nations, so far as measured by the uniformity of their health codes and registration of vital events. As one historian put it, “Only as European nations created efficient mechanisms in the course of the nineteenth century did the uncoordinated condition of American state registration begin to reveal the extent of its shortcomings.” [6] For example, the English Parliament had passed a registration law in 1836, which provided for the collection of vital statistics. The legislature of Massachusetts followed suit in 1842. However it was almost three decades later before any state in the Union had an official Board of Health (Massachusetts in 1869), and before the American Public Health Association was founded (1872). [7] The initial impetus for the improved collection of vital statistics usually came from public officials, doctors, public health officers, sanitary engineers, and statisticians who were concerned with enumerating the variety of sicknesses, infectious diseases, and epidemics prevalent within their state, and who began to scientifically study causes, containment, and control.

The States justified such activities under their police powers of providing for the public’s health, safety, welfare, the prevention and detection of crime, and the need to collect data for sanitary purposes and analysis. Lewis Hockheimer, in his 1897 article on “Police Power” in the Central Law Journal, noted that “The police power is the inherent plenary power of a State … to prescribe regulations to preserve and promote the public safety, health, and morals, and to prohibit all things hurtful to the comfort and welfare of society.” [8] The constitutional basis of such state power was found in the Tenth Amendment, which reserved to the states all powers not explicitly delegated or prohibited in the Constitution. Firefighting regulations, quarantine laws, laws governing weights and measures, inspection of flour, meal, beef and pork, control laws over strong liquors, and recordation of vital statistics: in short, “no aspect of human intercourse remained outside the purview of” the police power if it could be justified as beneficial to the happiness and welfare of the state’s citizenry. [9]

“Birth and Death Registration in Massachusetts”

Throughout the Nineteen Century, the State of Massachusetts remained a pioneer in recording the vital events of its citizens. However at the beginning of the 1800s, probably not more than 50% of the births and deaths in the state were actually registered according to the laws in force. Until at least the early 1840s, the main justification of the registration laws in Massachusetts was that “lists of births and deaths would be useful in cases of probate.” [10] In February 1842, when the state legislature appointed a committee to revise the law, increasing emphasis was placed upon the “importance of vital records in studying the public health, particularly in helping to chart the course of epidemic diseases through the State.” Numerous factors affected the collection of vital statistics during the middle decades of the century. For one thing it was estimated that less than 50% of births in the state were attended by a midwife or physician. Many parents were not aware that it was their responsibility to report births to the town clerks, and there was a “widespread reluctance to require physicians and midwives to report births.” State supervision of medical doctors had been “relaxed” from 1830 to 1850 (formal licensing was not resumed until 1894), and it was believed that involving “medical practitioners in the registration system again might require a state-sponsored program for distinguishing between competent and less expert physicians.” [11] So not only were the medical doctors fearful of involvement with the State, they resented being forced by law to report births and deaths, a service for which either they would not be paid, or receive very little compensation.

In 1849, the legislature again appointed a committee to close loop-holes in the vital statistics law. Lemuel Shattuck authored the report, which has been referred to as “the first treatise on the subject of vital registration” published in the United States. The committee demanded that town and city clerks both be “authorized and required” to collect birth and death information; that “all towns appoint superintendents of burial grounds and undertakers, who would have the exclusive right to handle interments;” and that amount of fees paid to those who had the duty to collect birth and death information be augmented. [12] Although much of the committee’s report was rejected by the legislature, the report served to bring publicity to the topic of public health and vital statistics. Nevertheless, there were still a number of ways that deaths went unrecorded. First of all, private farm burials had never been outlawed in Massachusetts, and they were especially prevalent in the rural counties. The legislature feared to prohibit such burials “for fear of offending the folk tradition that a farmer should be buried on the land he tilled.” Secondly, there were no state regulations regarding removal of bodies from one town to another. Thirdly, there was no requirement that coroners report violent deaths to the town clerks; and finally it remained very easy for sextons and cemetery superintendents to avoid the law. [13] By the early 1870s, the state legislature addressed these issues, including an order to all towns and cities to license undertakers (who were threatened with loss of their license if they failed to report deaths). Thus by the end of the 1870s, there was near 100% accuracy in the recording of deaths within the state.

However at the same time, problems remained in approaching such accuracy in the reporting of births. There were still parents and householders who remained unaware of their obligations, and “because parenthood was obviously not a government office, there were great obstacles in making parents comply with the law. … Perhaps they could have been prosecuted” but the widespread apathy with regard to birth statistics resulted from the fact that fertility was not regarded as a social problem at that time. [14] Nevertheless, with the advent of the State Board of Health in 1869, and the establishment of city and town boards of health during the 1880s and 1890s, and changes to the law in 1883 (which increased the fees paid to physicians and midwives who reported births), gradually more and more births were recorded. Additionally, town and city clerks often resorted to conducting municipal-wide censuses once a year as a means of recording births that either were not attended by a midwife or physician or births which they attended, but failed to report. [15] Thus by 1890, it was safe to say that the “the main features of an adequate system had been adopted and put into operation. No more than one or two per cent of the births and deaths which occurred in the State were not registered.” [16]

The Registration Area

With the State of Massachusetts as an example, the federal government tried to encourage other states and local governments to emulate its practices. In 1880, the Federal Bureau of the Census initiated a national registration area for the uniform collection of death statistics in order to provide a scientific basis for the study of public health problems in the states. The registration “area” was simply all or part of a State (such as a major city within the State) which complied with the federal guidelines for the collection of death statistics. In order to qualify for admission into the national registration area a State or municipality had to comply with two requirements. First it had to pass satisfactory a law and implement a suitable system for death registration, and secondly, it had to attain at least a 90% rate of completeness in recording deaths within its geographic boundaries. Wilson G. Smillie in his book on PUBLIC HEALTH ADMINISTRATION IN THE UNITED STATES discusses the evolution of modern registration:

Various checks [we]re used by the Federal Census Bureau to determine whether a given state ha[d] fulfilled all requirements. The national registration area began with Massachusetts and New Jersey, the District of Columbia, and nineteen cities. Gradually the various states were admitted by the Federal Census Bureau so that every state is now included in the National Registration Area for Deaths. The National Birth Registration Area was established in 1915. Criteria for admission were similar to those required for admission to the death registration area. All states have met the federal requirements, though a few states have difficulty in maintaining the national registration standards. This formation of national registration areas marks one of the progressive steps in public health administration in the United States. It was brought about through formulation of a model registration law which was first presented to the official Association of Public Health Officers and approved by it. This model law had gradually been adopted by the various states.

Registration of all births and deaths within the state is a function of the state health department. The state health officer, or some other person on his staff, who is responsible to, and is designated by him, is the official state registrar of vital statistics.

The basis for effective registration is the formation of an organization whereby each birth and death that occurs within the state shall be recorded immediately on an individual certificate. Standard uniform certificates may be used, as well as standard methods of collection of the certificates and standard methods of interpretation of the data. These certificates are filed as a permanent record, and become part of the state archives. [17]

The objects of the national registration areas was the uniform and standardized collection of birth and deaths throughout the entire United States, so that statistics from one part of the country could be accurately compared to that of another part. When the federal registration area for deaths began in 1880, it only embraced about 17% of the country’s population. In 1900 it was estimated that about 40.5% of the population had their deaths recorded; in 1915, the figure was up to 66.9%, and by 1925 the figure was up to 88%. As the author of Why Should Births and Deaths Be Registered? (published by the American Medical Association in various editions during the early 1900s), observed: the work of registration could not be called “a complete success until every birth and death in the United States shall be promptly recorded.” [18] The former Chief Statistician for Vital Statistics of the United States, in 1916, wrote of his hope of the “rapid expansion” of the registration areas, “not only for deaths … but also for births, until the entire country shall have attained a condition of 100% efficiency in this respect. [19]

American commentators and health officials during the later half of the 19th Century noted that “voluntary contribution of information by heads of families or physicians … ha[d] always been a failure.” [20] In a report prepared for the U.S. National Board of Health in 1882, Dr. John Billings, a surgeon in the United States Army discussed the problems surrounding the accurate collection of birth and death statistics. Members of the general public were simply not informed enough to understand the importance of birth and death registration. They “suppose that it is merely a hobby of the doctors, who want the information for their own private purposes, and that this information can only be obtained by an unjustified amount of meddling with private affairs and by a system of espionage which will cause much trouble and difficulty.” [21] In a report to the Kentucky legislature in 1853, it was noted that the vital statistic records in many European countries are universal and compulsory: “In this country they would, by many, be considered unreasonable, oppressive, and tyrannical.” [22] When a birth registration law was passed in South Carolina “many of the citizens absolutely refused to” cooperate with the law. [23] It soon became obvious to public officials that “We cannot … hope to obtain any entirely satisfactory system of registration of births until the people at large have become educated to the necessity for it, and are induced to seek such registration of their own accord in order to secure proof of legitimacy, title to property, &c.” [24] How true this observation was is reflected in the following comment: “The national Social Security Act [1935] proved to be a great stimulus to accurate birth certification. Many people had never considered a birth certificate to be of any importance until old age assistance, unemployment insurance, and other ramifications of the Social Security Act demonstrated to them that it was necessary to have this official proof of their existence.” [25] Another means of accommodating the people to the idea of registration was to use the public schools to instruct the up-and-coming generation about the importance of public health and the necessity of cooperating with governmental authorities for such purposes.

The 19th Century movement for registration of vital statistics emphasized the recording of deaths, not births. Authorities perceived that it was easier to enforce regulations which required a government certificate of death than of birth, because birth registration was considered a more invasive practice. A new born could go his or her entire life without a birth certificate, whereas a person’s body had to be disposed of within a few days of death. The laws in most American jurisdictions eventually required that a government permit be issued for “every interment and removal of a dead body, and the community soon learns to consider any attempt at burial without a permit as a suspicious circumstance … .” Another commentator noted that “The corpus of every deceased human being must somehow be disposed of. The central registration authority in each locality is the only person qualified to permit legal disposal. Therefore substantially all deaths must get registered.” [26] The City of New York first required a death certificate under its Act of April 2, 1803, “which established public health regulations for the metropolis.” All physicians were required to leave a signed note, which provided the name, age, and cause of death, with some member of the deceased’s household. Sextons (the church official responsible for the church graveyard) were required to have the physician’s statement present before any burial could occur. Violations of the law subjected the physician to a $ 50 fine, and the sexton to a $ 25. fine. [27] ] Thus it was that the entire death and dying process was regulated, so that no dead person could be legally buried without the proper state-required or city-required paperwork.

The doctor was one of the most important functionaries in the system of collecting vital statistics. As a person licensed by the state to practice medicine, it became the responsibility and duty of the physician to assist the public health officers in each locale. “It is an onerous public duty of each physician to report promptly to the health department all births and deaths that occur in his private practice. … Th[e] simple procedure [of filling out birth and death certificates] is one of the primary obligations to his patients and to the community that a physician assumes when he is granted permission by the state to practice medicine.” [28] However, this was not always the attitude of doctors during the 19th century. In an article in the Chicago Medical Journal of 1878, it was noted that

In this country there is only the curiosity of a few scientific men that can be relied upon for the moral support of a registry law, and it is probable that in Chicago not more than 12 in every thousand would be found to care for the registration of their nativity even in a family Bible. The reason why physicians do not execute the law is because they not only have no personal interest in its execution, but [also] because of an invincible, though not always clearly recognized, feeling of revolt against the injustice of a law which inflicts a special tax on the physician in the shape of postage, time, and trouble, and affords no compensation for the extra labor and expense. People do not like to make a present to the Government in any shape or form. It is as unjust for the State to add fifty cents to the doctor’s tax simply because he is a doctor as it would be to add fifty dollars. The State should pay for all such service and it need not incur any great expense. It might, as in the case of jury duty or military service by conscription, fix its own rate, but the obligation should be recognized. The payment would, of course, require increased general taxation, but the increase would be levied on all alike. The health officers are trying to get service from the doctors without paying for it. [29]

The Model Laws

Even after the Registration Areas for the recording of birth and death statistics were in place, it took government authorities many years to bring all of the United States into the system. In 1903, Congress officially endorsed the system by passing a resolution that called for nationwide support of “proper registration of all deaths and births” [30]. Pennsylvania was one of the states that embraced the system, and it was reported that in that state there were “hundred of actual prosecutions [which] have been directed by state authorities” against those who failed to register births. [31] In 1907, uniform legislation patterned after the law in Pennsylvania was prepared. This law, which became known as the Model Law, was “endorsed by the Census Department of the U. S. Government, the American Medical Association, the American Public Health Association, the American Statistical Association, the Committee on Uniform Laws of the American Bar Association, American Child Hygiene Association, [and] the American Federation of Labor … .” [32] When the registration area for births was established in 1915, it roughly embraced 31% of the American population. By 1927, it was in use in 45 of the 48 states.

The Model Law was officially titled “A Bill To Provide for the Registration of All Births and Deaths in the State of _____.” It essentially required the recording of all deaths within the State: no burials, cremations, removals, or interments were to take place without a death permit issued by the State Board of Health, and signed by the physician in last attendance [33], and if no physician was in attendance the next of kin or undertaker must notify the local health officer. The portion of the Model Law that concerned itself with birth registration began with the proviso “That the birth of each and every child born in this state shall be registered as hereinafter provided.” [34] The law stated that it was the duty of the physician, midwife, or person acting as midwife, to register the birth. If there was no one acting in this capacity at the birth, then it devolved upon the father or mother of the child, or the householder or owner of the premises where the birth took place to report to the local registrar the fact of such birth within ten days of its occurrence. Upon being notified of the birth, the local registrar had the responsibility to issue a birth certificate.

The Model Law was intended to be compulsory and universal. It applied to each and every person with the geographic area of the state and the law contained penalties for failure to comply. Under Section 22 of the Model Law, failure to meet the requirements of birth and death registration became a misdemeanor, “and upon conviction thereof for the first offense be fined not less than five dollars ($ 5.00) nor more than fifty dollars ($ 50.00), and for each subsequent offense not less than ten dollars ($ 10.00) nor more than one hundred dollars ($ 100.00), or be imprisoned in the county jail not more than sixty days, or be both fined and imprisoned in the discretion of the court.” [35] Although the Model Law did not explicitly endorse the idea, a footnote was inserted to the effect that “Provision may be made whereby compliance with this act shall constitute a condition of granting licenses to physicians, midwives, and embalmers.” [36] This meant that, assuming people practicing these occupations were issued new licenses each year, if they were convicted of failing to meet their obligations to register all new births and deaths which they attended, they would be denied their license to practice, and if they did not cease practicing their profession, they would be liable to be convicted of “practicing without a license.” Licensure denial was a very effective way of bringing about more complete birth and death registration.

It is interesting to note that as early as 1882, Dr. John Billings, the public health official who was quoted earlier in this paper, observed that:

All registration acts which are upon a proper basis presuppose also legislation providing for the determining of those who are properly qualified physicians, and for making the names of these known to the registrar. It may be said, therefore, that the registration of vital statistics depends for its efficiency, to a very large extent, upon some system of registration of physicians and midwives. [37]

An interesting implication to draw from Billings’ analysis is that unlicensed practitioners were the bane of the authorities. Unlicensed doctors (whether or not they were competent) were too difficult to track and too elusive to be certain whether they filed death certificates. In short, from the very beginning of the movement for registration of births and deaths, government authorities understood that they had to control the practitioners of the birth and death professions. If people in society at large were unwilling to conform to government dictates, the authorities realized it was much easier to enforce their regulations by focusing on a much smaller group of people, whose occupational activities could be regulated. [38] Billings follows the comments quoted above by a discussion of the obligation of physicians to report the existence of certain diseases to the public health authorities. He refers to this as “the compulsory notification of infectious diseases” and points out that if doctors are required to report infectious diseases to the public health department, there is no reason why they should not be willing to accept the compulsory reporting of deaths and the completion of death certificates. [39]

The Modern Era: The Logical Climax

In an article on “Documentary Identification and Mass Surveillance in the United States,” published in 1983, the authors noted the near total acceptance of birth certificates by all Americans: “It is practically impossible for an adult to live in the United States without frequent recourse to” documents of identification, such as the birth certificate, and “Today, documentary requirements make it difficult for anyone born in the United States to do without a birth certificate; … .” [40] The government has been so successful in convincing its citizens that identification papers are necessary that even forgers and identity thieves, when they want to create a new personal identity, rely on government documents (either stolen ones or forged ones). In short, in our society the only means of proving “who you are” is by means of government paperwork. Social Security numbers and drivers license did not even exist during the 19th Century. Before the 20th Century, “the majority of births in the United States remained unrecorded with any government agency,” but “[b]y 1950, census officials estimated that 97.9 percent of all births in the United States [were] being registered.” [41]

The success of the United States governments, both on the federal and state level, in accomplishing the feat of legitimizing itself in the minds and bodies of its citizenry has been phenomenal. In the span of four or five generations, Americans have moved from a situation of quasi-voluntaryism (of having their lives largely unregulated by government) to one of near-total government control over all their activities (literally, from birth to death). This success is best epitomized by the comment of William Smillie, who wrote that “the child has no real legal proof of existence in the eyes of the state without a proper birth certificate.” [42] Smillie’s comment represents how presumptuous the government is in making government documents the starting point of a person’s existence and identity. Traditionally in the United States, and in customary tribal societies, the members of the local community and social network into which a person was born stand as witness to that person’s birth (and death). Such events are “a matter of public record in the minds of the people” and there is no need for the government to take note of or register such events. [43]

In the monograph Why Should Births and Deaths Be Registered?, the author lists numerous reasons in support of his argument. Let us examine these reasons and see if the only way to achieve them is through government birth certification.

Such records are necessary in determining questions of parentage, heredity, legitimacy, personal identity, property rights, inheritance, and citizenship. No child labor law is of much value unless it rests on a system of birth registration and of birth certificates issued by the state by which the parent or the child can produce at any time positive proof of birth, paternity, and age. During the war [World War I], the operation of the selective draft act was greatly hampered by the fact that … no legal evidence could be produced or existed by which the age of the individual could be positively proven. [44] [Birth certificates are also useful:] To settle disputes as to age arising out of insurance claims; … [T]o obtain a marriage license; … [T]o gain admission to school; … As proof of citizenship in order to vote; … As proof of citizenship in order to obtain a passport. [45]

In analyzing these points, it is first necessary to observe how many of them involve some government regulation or the interaction of the individual with the state. Nearly all the uses of the birth certificate evaporate if the state is removed from the picture. Child labor law enforcement; military conscription of men over a certain age; proof of citizenship for voting and passport purposes; all these reasons disappear if there is no state. The non-state reasons for having a proof of birth then become limited to questions determining property rights, legitimacy, and inheritance. How were these issues handled before the advent of state-mandated birth certificates? They were clarified, resolved, and sorted out through personal testimony, family documents, and the appearance of witnesses and friends to support one’s claims. They certainly did not await settlement on the advent of state-issued birth certificates. Clearly, history is on the side of the non-state birth record, for people have lived, prospered, and died for thousands of years without such government documents.

There may be very good reasons for having records of birth and deaths, but this by no means implies that they must be maintained by the government. There are many “necessities” in life, but it does not follow that governments must provide them. For example, we all require food, shelter, and clothing, but during most of American history these necessities were provided by the free market to the extent that people could afford them and desired them. Realistically, there is no more reason for government to produce steel than there is for government to issue birth and death certificates. In a free society, a few organizations like Visa or MasterCard might evolve voluntarily to satisfy people’s demands for such records. Some people might choose to maintain their family’s birth and death records in an independent commercial registry; others might choose to use their family’s Bible; while others might simply keep track of such details themselves by issuing their own documents of record; and those who were either too ignorant or to unconcerned would simply do nothing. The point is that no one would be forced by another person or another group of people to become documented in a way that they did not desire. Those who wanted documentation could have all the identification papers they wanted and could pay for; those who objected would not be coerced. Charities would probably arise to provide for or pay for the documentation and identification of those who could not afford it themselves.

What opponents of state-mandated birth and death certificates object to is the “means.” They reject the compulsion involved in the state requiring that everyone have a birth certificate. They may or may not object to voluntarily having a birth certificate (of whatever form they or their parents chose), but they do oppose the use of coercion which would require that everyone have a state-issued birth certificate. Paraphrasing Robert Ringer, “I do not believe that I or any other person has the right to force men to be charitable [or to have state-issued birth certificates]. In other words, I am not against charity [or state-issued birth certificates], but I am against the use of force.” [46]

Before the days of official birth certificates, it was standard practice in many parts of the world for strangers to carry “letters of introduction.” Such documents, issued by a well-known personage, would assure the person presenting it of a much quicker reception and acceptance in a society where he was not known. Other ways of establishing one’s reputation in a strange community have historically involved the use of credentials, such as educational degrees and membership certificates in professional or religious organizations. Even the credit card serves as a credential of trustworthiness and reputation. [47] Similarly, in a stateless society, private companies and organizations would probably develop a means guaranteeing a person’s real or true identity. Such a procedure would be akin to the issuance of a surety bond, issued by a reputable insurance company. In transactions that merited the importance of such a guarantee, a “personal identity bond” might be demanded, so that in the event of one person masquerading as another, the party being deceived would have recourse to a reputable institution to recover his or her loss. Such a personal identity bond would be much like title insurance is today in real estate transactions. It would serve as a guarantee by an independent company that in the event of any legitimate and unexpected claim arising, the person defrauded would be reimbursed by the insurance company. The development on the internet of digital certificates, public key infrastructures, and private credentials represents a step toward a non-governmental means of identification. [48]

As with many of the services it provides, the State has done a poor job in the provision of birth-recording services. Undoubtedly, even in a free society there would be people who attempt to criminally pretend they are other than who they really are. However, under the existing state system, there is near total reliance on “self-identification.” So long as a person can supply a certain amount of personal information (date of birth, mother’s maiden name, father’s name, place of birth, and a legitimate address) governmental authorities will issue a duplicate birth certificate to that person. As yet, there is no relatively fool-proof system of identifying the person demanding the document with the person whose birth is recorded thereon. [49] The current government attempts to use biometrics, or even the suggestions of others to fingerprint or tattoo each newborn is a way around this impasse.

When state provision of birth and death records began there was practically no thought given to where it such government programs might lead. Jeremy Bentham, in the 1830s, was one of the earliest proponents of identifying everyone (by use of tattoos) in a given geographic jurisdiction. State involvement in vital statistics was justified on the perfectly innocent grounds of providing for the public’s health and welfare by concentrating on the causes of death. Anyone who would have taken a principled stand on this issue in the early 1900s would have been laughed down. No one could have predicted that state-issued birth certificates would have been linked to the issuance of Social Security numbers, drivers licenses, passports, and other government documents. [50]

Effective birth registration lies at the heart of the state’s governance of its people. Realizing this, governments have coercively monopolized the issuance of birth certificates by making it a criminal act for those who are responsible for a birth not to register the newborn. The classic definition of the State is that it is the only institution in society that derives its revenues from compulsory levies, known as taxation, and that it maintains a compulsory monopoly of defense services (such as the police, armed forces, and judicial system) over a given geographic area. [51] When you combine these elements with the state’s success in sustaining a monopoly over the means of identification, the stage is set for a totalitarian world. Once you grant local, state, or county government a role in identifying its citizens, there is no logical stopping place until you reach the federal level of demanding complete and total identification of each person in the United States, or in the world, if you are a supporter of world government. In fact, such demands have emanated from the United Nations, both in its 1966 call for the registration of every child at its birth, and as recently as December 2001, in an effort to reduce illegal immigration. [52]

“Therefore to oppose government enumeration is not only to oppose the government’s monopoly on the means of identification in modern society by opposing social security numbers, drivers licenses, biometric national ID cards, national databases, and other means now at the center of national controversy, but to oppose it at the most fundamental level, that of government-issued and-recorded birth and death certificates.” [53]

Endnotes

[1] Cressy L. Wilbur, M. D., The Federal Registration Service of the United States: Its Development, Problems, and Defects, Washington: Government Printing Office, 1916, p. 8.

[2] John S. Billings, M.D., Appendix E: “The Registration of Vital Statistics,” in Annual Report of the [U.S.] National Board of Health: 1882, Washington: Government Printing Office, 1883, p. 357. John Shaw Billings (1838-1913) was Director of Vital Statistics of the United States government and a “leader of the medical profession,” who played an important role in the historical development of the tabulating machine, the early predecessor of the IBM computer. It was he who, in an 1880 discussion with Herman Hollerith, first suggested “that the laborious work of hand tabulation could be replaced by mechanical devices and by the use of a card with holes punched to represent the items.” Hollerith went on to develop one of the first successful mechanical tabulator/punch card readers for the Bureau of the Census in 1890. The Tabulating Machine Company, which Hollerith founded, eventually became the nucleus of the commercial organization renamed International Business Machine (IBM) in 1924. See “John Shaw Billings,” II Encyclopedia of the Social Sciences, New York: The Macmillan Company, p. 542; James Connolly, History of Computing in Europe, IBM World Trade Corporation, circa 1967, pp. 5-6 and p. 22; and Edwin Black, IBM and the Holocaust, New York: Crown Publishers, 2001, p. 25.

[3] See Major P. Granville Edge, “Vital Registration in Europe: The Development of Official Statistics and Some Differences In Practice,” 91 Royal Statistical Society Journal (1928), pp. 346-393, especially pp. 354-355, and p. 375, “Appendix I. The [Compulsory] Registration of Births and Deaths.” Also see Billings, op. cit. p. 355.

[4] Robert Rene Kuczynski, “The Registration Laws in the Colonies of Massachusetts Bay and New Plymouth,” New Series 51, American Statistical Association, September 1900, p. 9. Also see Wilbur, op. cit., p. 37 and Billings, op. cit., p. 356.

[5] Wilbur, op. cit., p. 37.

[6] Generally see Richard Shryock, “The Origins and Significance of the Public Health Movement in the United States,” New Series I, Annals of Medical History, 1929, pp. 645-665. For the quotation see James H. Cassedy, DEMOGRAPHY IN EARLY AMERICA: Beginnings of the Statistical Mind, 1600-1800, Cambridge: Harvard University Press, 1969, p. 211.

[7] Wilson G. Smillie, Public Health Administration in the United States, New York: The Macmillan Company, 1947 (Third Edition), p. 13. An “English law of 1874 adopted provisions already in force in Scotland, compelling physicians to return certificates of death; … .” W. P. Prentice, Police Powers Arising Under the Law of Overruling Necessity, New York: Banks & Brothers, 1894, p. 156.

[8] cited in William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth Century America, Chapel Hill: The University of North Carolina Press, 1996, p. 13.

[9] ibid., p. 14.

[10] Robert Gutman, Birth and Death Registration in Massachusetts 1639 – 1900, New York: Milbank Memorial Fund, 1959, p. 24 and p. 10.

[11] ibid., p. 56 and p. 32.

[12] ibid. pp. 48-49.

[13] ibid., p. 60 and p. 63.

[14] ibid., p. 103.

[15] ibid., p. 106.

[16] ibid., p. 109.

[17] Smillie, op. cit., p. 189.

[18] Why Should Births and Deaths Be Registered?: A Summary of the History and Present Condition of Vital Statistics Law, Including the Text of the Model Bill, Chicago: Press of the American Medical Association, 1927, p. 8. Italics in the original.

[19] Wilbur, op. cit., p. 9.

[20] Billings, op. cit., p. 357.

[21] ibid.

[22] W. L. Sutton, “Appendix” to the Second Annual Report to the General Assembly of Kentucky Relating to the Registry and Returns of Births, Marriages, and Deaths, From January 1, 1852 to December 31, 1853, Legislative Document No. 1, Frankfort: A. G. Hodges, 1854, p. 136.

[23] ibid., p. 140.

[24] Billings, op. cit., p. 360.

[25] Smillie, op. cit., p. 191.

[26] Billings, op. cit. p. 364, and Raymond Pearl, Introduction to Medical Biometry and Statistics, Philadelphia: W. B. Saunders Company, Third Edition, Revised and Enlarged, 1940, p. 54.

[27] “New York’s First Death Certificate,” The American Cemetery Magazine, November 1981, p. 22.

[28] Smillie, op. cit., pp. 525-526.

[29] Billings, op. cit., p. 365.

[30] Why Should Births and Deaths Be Registered?, op. cit., p. 3.

[31] Wilbur, op. cit., p. 17.

[32] Why Should Births and Deaths Be Registered?, op. cit., p. 3 and 9.

[33] Sec. 8, Model Law found in ibid., p. 27.

[34] ibid., Sec. 12, p. 31.

[35] ibid., Sec. 22, pp. 44-45.

[36] ibid., Sec. 22, p. 45.

<p[37] billings,=”” op.=”” cit.,=”” p.=”” 366.<=”” p=””>

[38] See Ron Hamowy, “The Early Development of Medical Licensing Laws in the United States 1875 – 1900,” delivered at the 6th Annual Libertarian Scholar’s Conference, Princeton Univ., October 1978, and which was published in 3 JOURNAL OF LIBERTARIAN STUDIES (No. 1, Spring 1979), and which can be found at http://www.libertarianstudies.org/journals/jls/pdfs/3_1/3_1_5.pdf. Also see Chapter 4, “Medical Societies and Medical Licensing,” in William G. Rothstein, American Physicians in the Nineteenth CenturyAMERICAN PHYSICIANS IN THE NINETEENTH CENTURY, Baltimore: The Johns Hopkins University Press, 1972, pp. 63 – 84.

[39] Billings, op. cit., p. 366.

[40] James Rule, Douglas McAdam, Linda Stearns, and David Uglow, “Documentary Identification and Mass Surveillance in the United States,” 31 Social Problems (No. 2), December 1983, pp. 222-234 at p. 222 and p. 224.

[41] ibid., p. 224.

[42] Smillie, op. cit., p. 191.

[43] This point was made in personal correspondence from Aslam Effendi, a descendant of the Pathans in Pakistan and Afghanistan, who wrote “that in tribal society there is no bureaucratic system for recording of births” or deaths. [Email dated February 25, 2002.] Simon Cole makes a similar point in his book Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge: Harvard University Press, 2001), p. 8: “In general, premodern societies already had an effective method of personal, and criminal, identification: the network of personal acquaintance through which persons were ‘known’ in the memories and perceptions of their neighbors [and relatives].”

[44] Why Should Births and Deaths Be Registered?, op. cit., p. 1.

[45] ibid., pp. 5-6.

[46] Robert Ringer, Restoring the American Dream, New York: Published by QED, 1979, p. 134 (from Chapter 4, “The Gourmet Banquet,” in the next to the last paragraph of the Section headlined “The Fate of the ‘Poor’ In A Free Society”.

[47] See Steven L. Nock, The Costs of Privacy: Surveillance and Reputation in America, New York: Aldine de Gruyter, 1993. Nock asks, “How are reputations established among strangers?” and then answers this question by discussing the role of credentials (“credit cards, educational degrees, driver’s licenses”) and ordeals (lie detector tests, drug tests, integrity tests”). Especially see pp. viii, 1-3, 14-15, 47-48, 51, 76-77, and 92-93.

[48] For greater elaboration see “Private Credentials,” Montreal: Zero-Knowledge Systems, Inc. (November 2000). This is a white paper available on Zero-Knowledge Systems’ website.

[49] For a discussion of this point see Rule, et. al., op. cit., p. 227.

[50] In 1998, the Social Security Administration began the “Enumeration at Birth” program, which “allows a parent to apply for an SSN for his/her newborn as part of the State’s birth registration process.” This program was started to ease enforcement of the January 1, 1998 IRS requirement that tax returns must have the Social Security number of all dependents claimed as exemptions. See U. S. Department of Health and Human Services, “Unique Health Identifier for Individuals: A White Paper,” at http://www.epic.org/privacy/medical/hhs-id-798.html at p. 12.

[51] For a general discussion of voluntaryism and anarchism see Carl Watner, I MUST SPEAK OUT: The Best of THE VOLUNTARYIST 1982 – 1999, San Francisco: Fox & Wilkes, 1999. Especially see p. 24 and pp. 47 – 48.

[52] Article 24 (2) of the United Nations International Covenant on Civil and Political Rights (General Assembly Resolution 2200A (XXI) of December 16, 1966 states that “Every child shall be registered immediately after birth and shall have a name.” On December 14, 2001, at a United Nations refugee meeting in Geneva, Switzerland it was proposed that “Every person in the world would be fingerprinted and registered under a universal identification scheme to fight illegal immigration and people smuggling … .” Maria Hawthorne, “Refugees meeting hears proposal to register every human,” at http:www/smh.com.au/breaking/2001/12/14/FFX058CU6VC.html.

[53] Thanks to Claire Wolfe for suggesting this conclusion.

 By Carl Watner
Number 115

Here is a history test. Can you find any error(s) of historical fact in the following paragraph taken from Chapter 17 of Thomas Sowell, Basic Economics (New York: Basic Books, 2000)?

For centuries governments have set standards of measurement or prescribed certain measurements, such as the width of rails on railroads. The inch, the yard, and the mile are all government-prescribed units of measurement, as are pints, quarts, and gallons. If individuals had each set up their own units of measurement, transactions and contracts would be a nightmare of complications, as would the enforcement process. When railroads first began, each company was free to decide for itself how wide apart its rails would be set. The net result was that rail widths differed from one railroad to another, which meant that space between train wheels also differed, so that trains from one rail line could not run on another. To tie a country together with railroads would be vastly more costly if a train from San Francisco could reach Chicago only if there happened to be rails of the same width covering the entire distance. To do this when rails were of different widths would have required far more railroads to be built, with many tracks running parallel to tracks of different widths, to reach the same places. Governmentally-imposed standards for the distance between rails eliminated this vastly expensive problem. [pp. 253-254]

The errors are: 1) The inch, the yard, the mile, the pint, the quart, and the gallon are now governmentally-prescribed units of measurement, but they were not – as Sowell implies – originally created by government. These units of measurement pre-dated all modern governments, and are now referred to as “customary” units of measurement, rather than ones originated by government. 2) At least in the United States, “governmentally-imposed standards for distance between rails” were not responsible for achieving track width standardization.

Here is another sentence from Thomas Sowell’s book: “Even the strongest defenders of the free market do not suggest that each individual should buy military defense in the marketplace.” [p. 253] How many readers of The Voluntaryist can identify what is wrong with that sentence? It should be rather obvious. In the last 150 years there have been, and are, individuals who advocate “that each individual should buy military defense in the marketplace.” The first person that comes into my mind who disproves Sowell’s sentence is Murray Rothbard. In fact, while writing this article I looked at For A New Liberty (New York: Collier Books, 1978, Revised Edition) and found a discussion of both private military protection and free enterprise standardization.

In the context of this article, neither issue merits great elaboration. Suffice it to say, Rothbard [p. 219] points out that “Gustave de Molinari, the nineteenth-century French free-market economist, was the first person in history to contemplate and advocate a free market for police protection.” Rothbard refers to Molinari’s article, “The Production of Security” written in 1849, which appeared in Journal Des Economistes. (See Whole Number 35 of The Voluntaryist for excerpts from Molinari’s article.) Rothbard, himself, distinctly advocates free market defense agencies for national defense in For A New Liberty. See the section captioned “National Defense,” which is the conclusion to Chapter 12, “The Public Sector III: Police, Law, and the Courts.” Interestingly enough, Rothbard also raises the issue of rail standardization in the section captioned “Street Rules,” in Chapter 11 of For A New Liberty. He states that American railroads of the 19th century achieved voluntary standardization of their track widths because it was in their best interests to do so. An article that provides the factual information to support this history was written by Peter Samuel and appeared in the February 1984 issue of Reason Magazine. The article was titled “Tracking A Curious Fact: How US rails got their track together,” and appeared on pages 37 – 39.

One thing bothers me about these examples of mistaken history. They represent an unstated assumption about the role of governments in history. Apparently, neither Thomas Sowell, nor his editors at Basic Books, nor any pre-publication readers realized that anyone would be so brash as to advocate private military protection or that private enterprise could solve the problem of rail standardization. Such ideas are outside their paradigm of how people think about government and the role government takes in society. In other words, in the minds of Sowell, his editors, and any pre-publication readers it was simply impossible that these things could have or did occur. In their minds, private owners are incapable of solving standardization problems. Consequently, they think given the fact that rail standardization exists in the United States, it must have been brought about by governmentally-imposed legislation. How else could it have happened? Ignorance is bliss, especially when it comes to history!

In Orwell’s 1984, Winston Smith, one of the main characters, worked for the Ministry of Truth. One of his duties was to rewrite previously written newspaper articles so that they would agree with the regime’s current directives. The old articles were destroyed in the memory hole. I am not accusing Thomas Sowell of intentionally re-writing history (just being ignorant of it). In fact, when I pointed out his error about rail standardization in a personal letter, he promised to correct it in the second edition of Basic Economics (if one appears). However, even such a correction would not change his basic argument that people require a centralized (government) coordinator to set the rules and eliminate the free-riders.

What concerns me the most is the unquestioned assumption that human beings require coercive political governments. It is both a matter of logic (who bears the burden of proof in demonstrating that humans require or do not require political government) and a matter of historical truth (what have governments accomplished and what has private enterprise accomplished). As readers of The Voluntaryist know: our editorial assumption is that people can live more morally, happily, and prosperous under a regime of voluntaryism. This is subject both to proof as an ‘a priori’ assumption and as a historical, ‘a posterori,’ fact. While I have the greatest respect for Thomas Sowell as a person, he, his editors, and readers ought to stop “assuming” history.

 by Carl Watner
Number 115 – 4^th Quarter 2002

[Editor’s Note: I first read about Legistlating Morality an offering of the Conservative Book Club. After looking at the book I was intrigued by the authors’ defense of their thesis, which they summarized as: “(1) Legislating morality is literally unavoidable (morality is always legislated), and (2) Americans should legislate the morality common to us all – the one expressed in our Declaration of Independence, the Constitution, and until recently, the laws of our land and decisions of the Supreme Court.” (p. 8) Read on to find out why I believe “legislating morality” is neither wise, legal, or possible. For those interested in ordering a copy of Legislating Morality contact Bethany House Publishers, 11400 Hampshire Avenue South, Minneapolis, MN 55438 (Tel. 1-800-328-6109)]

May 29, 2001

Dear Dr. Geisler and Mr. Turek:

I have read and re-read your book Legislating Morality (1998). In your “Conclusion” you ask readers to offer a well-reasoned rebuttal if they disagree with you. I believe that “legislating morality” is neither wise, legal, nor possible. The standard by which I answer these questions is that of the natural law, which embraces the commandments against murder and theft, and, more generally, prohibits all forms of fraud and violence. In short, the natural law standard demands that we leave others in peace unless they first trespass against us. Voluntaryists advocate coercive government be abandoned since it is at odds with this standard because it imprisons peaceful people for violating its political laws and for not paying the taxes it levies. Voluntaryists also believe that all of the positive things that government does can be provided in a voluntary manner on the free market. So in criticizing your arguments, keep in mind that I am not just critical of your advocacy of “legislating morality,” but also questioning your implicit acceptance of the institution of coercive government.

In order to keep this “Open Letter” reasonably short, and in order to keep from duplicating what I have already published on this topic, I ask that you at least read over the highlighted sections of the articles in two issues of The Voluntaryist (a newletter I have published for the last 19 years), which I am enclosing. The articles are: “Vices Are Not Crimes” and “Libertarianism and Libertinism” (from Whole No. 77) and “Myths and Truths About Libertarianism” (from Whole No. 95).

I would like to make four main points in this “Open Letter”. The first is that virtue cannot exist at the point of a gun. The second concerns the question of when individuals are justified in using physical violence in their social relations with others. The third point is: what happens to our society when our government is taken over by a crowd of power-seeking, corrupt libertines? Finally, the fourth point relates to what Lysander Spooner called the absurdity and criminality of lawmaking.

I. Can an action be moral if the actor is threatened with violence or coerced to act in a certain manner?

This argument should not be hard to follow. If I am compelled under the threat of being jailed not to take drugs, how can my actions be called virtuous? Virtuous behavior to be virtuous must be free of the taint of being caused by coercion or coercive threats. Virtuous behavior must be freely willed by the individual in question. Please read the last half of Myth 3 in “Myths and Truths About Libertarianism,” which explains that “compelling moral actions or outlawing immoral actions” cannot foster the spread of virtue. Therefore, legislating morality “robs us of the very opportunity to be moral.” True virtue consists in not doing right, but in freely choosing to do right.

II. What is the proper role of violence in society?

In the first section of “Libertarianism and Libertinism,” Walter Block explains that “only rights violations should be illegal.” In other words, individuals may only rightfully defend themselves and use or threaten violence against others when the boundaries of their person or property have been trespassed against. There are many situations where we may consider ourselves harmed (eg., witnessing a pervert or prostitute in the act of soliciting), but unless our rights of person or property have been violated, we are not justified in resorting to violence (e.g., to prevent her from seeking customers). Even then, as Block says, violence is justified – not because of the depravity of a pervert’s behavior, but rather – because the pervert has initiated violence. Thus when a person who has drunk too much whiskey begins to threaten or violate your person or property, you are justified in using violence to compel the drunk to stop. What you are justified in stopping is the criminal violence, not the drinking. If the drunk were to stay in a drunken stupor in the privacy of his home, neither you nor I would be justified in preventing his drinking. In Legislating Morality you advocate placing people in jail if they do not behave in ways which you deem appropriate – regardless of whether or not they have committed a boundary violation or trespass. This violates the natural law standard that unless a person has first initiated violence that person should be left in peace.

III. The very existence of government makes it far easier for “bad” men to exert their influence over society.

One of your constant themes in Legislating Morality is that government laws exert a profound influence on the morals of society. As you put it, “many people believe that whatever is legal is moral,” and the laws “often help change attitudes over the long term.” [p. 37] You urge that we get the right men into political power, so that they can pass the rights laws to set society back on track. Consequently, when the wrong types of action are legalized by the government, people are more inclined to do them. Wouldn’t it be better to abandon government altogether, and rely on strong voluntary social institutions – such as churches, schools, and families – to set high standards of morality? Then there would be little chance of having a Bill Clinton’s immoral behavior reach the attention of people all over the world. As it was, countless numbers of American children received the impression that his perverted sexual behavior was perfectly acceptable. The existence of government was the only thing that made such an event possible.

IV. The problem with “legislating morality” is that “common sense and reason tell us that nothing can be right by legislative enactment if it is not already right by nature.”

In your book, you point out that “there is a real right and wrong, and that real right and wrong is external to ourselves. … [W]e don’t determine right and wrong, we discover it.” [p. 114)] “[T]he morals [we are] advocating are not [ours] – [we] didn’t make them up. [We] didn’t make up the fact that stealing is wrong, that murder is wrong, that abortion is wrong, any more than [we] made up the fact that 2+2=4!” [p. 213] I agree with you, but believe that objective natural law/morality actually casts doubt on the necessity of government and government legislation. As Epictetus, the Stoic, pointed out: if the government directs people to do something that reason demonstrates is contrary to the natural moral law (as has happened plenty of times in history), the people should defy the government. On the other hand, people do not require government, if it merely repeats what their reason would have told them to do anyway.

The following comments were written by an American constitutional lawyer in 1877. In his article “Against Woman Suffrage,” Lysander Spooner wrote:

The only law that any human being can rightfully be compelled to obey is simply the law of justice. And justice is not a thing that is made, or that can be unmade, or altered by any human authority. It is a natural principle, inhering in the very nature of man and of things. It is that natural principle which determines what is mine and what is thine, what is one man’s right or property and what is another mans right or property. It is, so to speak, the line that Nature has drawn between one man’s right of person and property and another man’s right of person and property.
This natural principle, which we will call justice, and which assigns to each and every human being his or her rights, and separates them from the rights of each and every other human being, is, I repeat, not a thing that [is] made, but is a matter of science, to be learned like mathematics, or chemistry, or geology. And all the laws, so called, that men have ever made, either to create, define, or control the rights of individuals, were intrinsically just as absurd and ridiculous as would be laws to create, define, or control mathematics, or chemistry, or geology.
Substantially all the tyranny and robbery and crime that governments have ever committed – … – have been committed by them under the pretense of making laws. Some man, or body of men, have claimed the right, or usurped the power, of making laws, and compelling other men to obey; thus setting up their own will, and enforcing it, in place of that natural law, or natural principle, which says that no man or body of men can rightfully exercise any arbitrary power whatever over the persons or property of other men.

Some years later Spooner published A Letter to Grover Cleveland, in which he continued to elaborate this theme. He did not believe that natural law needed to be enforced by human legislation. Reality enforces the natural laws of justice. If human laws

command men to do justice, they add nothing to men’s obligation to do it, or to any man’s right to enforce it. They are therefore mere idle wind, such as would be commands to consider the day as day, and the night as night. If they command or license any man to do injustice, they are criminal on their face. If they command him to do anything which justice does not require him to do, they are simple, naked usurpations and tyrannies. If they forbid any man to do anything which justice would permit him to do, they are criminal invasions of his natural and rightful liberty. In whatever light, therefore, they are viewed, they are utterly destitute of everything like authority or obligation. …
This science of justice, or natural law, is the only science that tells us what are, and what are not, each man’s natural, inherent, inalienable, individual rights, as against any and all other men. And to say that any, or all other men may rightfully compel him to obey any or all such other laws as they may see fit to make, is to say that he has no right of his own , but is their subject, their property, and their slave. [A Letter to Grover Clevelan (1886), pp. 3-4]

In another essay of 1882, On Natural Law; or the Science of Justice, Spooner subtitled his pamphlet “A Treatise on Natural Law, Natural Justice, Natural Rights, Natural Liberty, and Natural Society; Showing That All Legislation Whatsoever Is An Absurdity, A Usurpation, and a Crime.” On page 19 of your book, you point out that “the Founding Fathers believed that rights are God-given and, as such, they are universal and absolute – they are the rights of all people in all places at all times, regardless of nationality or religion. And since everyone is equal, no person has the moral authority to rule over or take away the rights of someone else.” I assume that you concur with their belief that all people are equal in their unalienable rights to “life, liberty, and property.” If this is true, how can you claim the right to establish your version of a good society “where individual dissenters are to be suppressed by means of physical force”? How can “legislating morality” be “wise, legal, or possible” if it necessarily violates the natural law standard of not invading against others till they have aggressed against you?

In conclusion, Dr. Geisler and Mr. Turek: I hope that both of you co-authors take the time to read this letter and the accompanying enclosures. I hope that at least one of you will respond. In any case, I plan to publish this “Open Letter” and any response(s) received from you in The Voluntaryist.

Thank you for writing Legislating Morality and presenting a challenging opportunity for a voluntaryist response.

cc: Mr. Frank Turek
400 Timber Lane
Mathew, NC 28105

Dr. Norman Geisler
Veritas Graduate School
Southern Evangelic Seminary
4298 McKee Road
Charlotte, NC 28270

June 14, 2001

Dear Mr. Watner:

Thank you for your critique of our book Legislating Morality. In the interest of time, I will address briefly each of the four main points of your Open Letter. Please forgive my brevity and bluntness.

First, we are not suggesting that most legislation is designed to produce virtue in our citizens. Instead, most laws are designed to restrain evil rather than compel good (we list a few exceptions to this on page 34). Nevertheless, the law is a great teacher that can change attitudes and actions over the long term (pages 35-38). Your suggestion that everyone voluntarily do good and fulfill their responsibilities takes a very naive view of human nature. As James Madison said, “If men were angels, no government would be necessary.” Men are not angels and therefore good laws are often needed to inform their consciences and constrain their behavior so they don’t destroy the lives, liberty or property of others.

Second, your insinuation that “we advocate placing people in jail [for private drinking]” cannot be found in our text and is false. We don’t advocate any such law. We simply point out that any position on the law (including yours, which is that it would be immoral to legislate morality) is itself a moral position. It is therefore self-refuting. In other words, the voluntaryist wants to legislate morality just as much as the Puritan. You just want different moral standards legislated.

Third, I agree there are bad men in government who can abuse their power. And I agree there are bad laws. Yet, if there are bad men in government, there also bad men in society, which demonstrates the need for good laws and good law enforcement. The fact that there is bad government is not an argument for no government but an argument for better government. I think you voluntaryist approach, while well-intended, would result in anarchy due to the depravity of mankind. Our founding father recognized this and built checks and balances into our system. While our government is far from perfect, it should be improved, not discarded.

Fourth, I wish everyone followed reason but they don’t. We are not just intellectual creatures, but also emotional and volitional. Since men like darkness rather than light and have a tendency to suppress the truth rather than follow it, they cannot be counted on always to follow the Moral Law. Laws and law enforcement are therefore necessary. Moreover, the analogy you make equating mathematics to the Moral Law is invalid. If one doesn’t obey the laws of mathematics, he gets his sums wrong. But if one doesn’t obey the Moral Law, he can kill someone. We don’t need laws punishing people for getting their sums wrong, but we do need laws punishing people for harming others. After all, the laws of math are self-enforcing. The laws of morality are not.

Finally, good laws do not unduly restrict liberty. (I agree that morality can be overlegislated; see pages 211-212) as many laws in the United States do. Good laws simply restrict evil in order to prevent evil. We should not have to wait until “they have aggressed against you” as you suggest. Laws are thankfully preventative as well as punitive.

Please give me a call if you would like to discuss this further. I welcome the dialog but am a bit short on time to write lengthy letters.

Thanks for your interest!

Blessings,
s/Frank Turek

Box 275
Gramling, SC 29348

June 25, 2001

Mr. Frank Turek
400 Timber Lane
Matthews, NC 28105

Dear Mr. Turek:

Thank you very much for your June 14th response to my “Open Letter” about your book Legislating Morality. However it appears that I either totally misinterpreted your book, or that you did not understand the four main points in my letter.

In Point I (of my letter) I was trying to show that the idea of legislating morality is inherently contradictory because virtuous action cannot be produced at the point of a gun. Getting people to act morally can be accomplished in two ways. First, you can teach people to do the right thing because it “is” the right thing. Or, you can threaten people with punishments if they do not do the right thing. [You use the word “punish” in the first line of the first paragraph of page 32 of your book.] If people behave morally because they fear being caught by a policeman, then – when they realize there are not enough policeman to watch everybody – they will revert to immoral behavior. People whose behavior is regulated by their internal conscience do not need policeman to watch them.

I expect your response to this line of reasoning would be that legislation sets the moral tone for a society by defining what types of behavior are acceptable and not acceptable (i.e., punishable). But this doesn’t really address my main point, which is that the motivation for acting morally must be considered before you can decide if a person is really virtuous. In other words, the man who doesn’t get drunk because he fears punishment is acting differently than the man who doesn’t get drunk because his conscience tells him it is unvirtuous to temporarily lose control over his mind and body. (Externally, they may both appear to behave similarly.) The man who is motivated by fear of punishment is not acting virtuously because true virtue consists not simply in doing right, but in freely choosing to do right without the threat of punishment. Thus the concept of “legislating morality” is contradictory because you cannot really legislate “true” morality. Legislation only works by threatening people with violence if their behavior does not meet the legislative standard. In the long run, I do not believe you can build a free and prosperous society by producing people who are governed by external threats.

In response to Point II (of my letter) you responded that I insinuate that you advocate placing people in jail for their misbehavior [for private drinking. It is not clear to me if you were specifically objecting to that conclusion (as regards private drinking only), or if you were objecting in general to the fact that I accused you of placing people in jail if they did not obey other rules of behavior.] But in either case, if you don’t advocate “punishing” people with physcial sanctions, then what do you mean by “legislating”? The act of legislating is the act of passing laws by a governmental body. Such laws may possibly be of an advisory nature, meaning people may choose to ignore them without legal consequence. Am I wrong in concluding that the types of laws you advocate in Legislating Morality are laws which “punish” people who violate them? National prohibition (from 1920 to 1933) was backed by punishment of people who manufactured, transported, and sold intoxicating liquor. They were to be placed in jail, have their property confiscated, or both. If people don’t behave in ways that you (or the legislators you choose) deem appropriate, then what do you advocate be done to them? Either you have to leave them alone or you must use violence on them in order to get them to cease and desist.

Finally, I do not at all understand the flow of logic in the third paragraph of your letter where you say that my position is self-refuting. As a voluntaryist I do not endorse any sort of coercive government, and certainly do not advocate any sort of legislation. However, I do embrace the commands of the natural law that there are moral absolutes, such as “do not murder.” But these types of moral absolutes do not need to be legislated by governments. This is because they are either right or wrong by nature and government legislation can add nothing to their rightness. Yes, I have a moral position – but I do not believe that it must be imposed on others by violence. I do not believe in the appropriateness of any sort of legislation. I believe in voluntary social institutions setting the moral tone for society. Where government sets the moral standards for society, such standards do not induce true morality or virtuousness (because they are backed by the threat of the gun). Furthermore, there is the very real danger (as we are now experiencing) that corrupt men will take over the reins of government and cause the disruption of the rest of society.

I believe the issues you address in Legislating Morality are important ones, and look forward to seeing our correspondence published in The Voluntaryist.

Sincerely,
s/Carl Watner
Day tel 864 472 2876

The experience of long ages has taught us two important axioms. The first is that you cannot make men better by legislation; and the second is that power over other men is always abused. It is very stupid, in spite of this age-long experience, to go on hoping the contrary; and criminal, it seems, to go on acting as if these axioms had been disproved. The more rational proceeding would be to give over trying to legislate men into heaven, and to prevent the abuse of power by withholding power.
– Hanford Henderson, The Charioteer
(1933), p. 285.

by Kurt Fuller
Number 115 – 4^th Quarter 2002

How does one become a voluntaryist? Are you born that way? Is a life-changing event required? Do you need to be convinced? The answer probably is different for different people. In fact, there may be as many answers as there are voluntaryists. In my case, the road to voluntaryism was a very gradual process, taking about four decades.

My upbringing was fairly typical for a child of the 50s and 60s. I came from a blue collar, union manufacturing, Mississippi River town in Iowa. My dad worked for his entire career as an electrician at the largest factory in town. Dad was a union man all the way, having been President of the Cellophane Workers of America for many years. As you might suspect, he almost always voted straight Democratic.

As a child, I considered myself to be a staunch Democrat, though there was really no reason for it beyond the fact that my dad was a Democrat. I never thought much about or spent any time on the issues. To me, politics was a game, and the game was fun to watch, especially at the national level. I was fascinated by delegate counts, caucuses, primaries, and state-by-state strategies.

Later in life, I discovered that the politicians also view it as a game, though they portray to the public that they care only about issues and principles. My parents, teachers, and fellow citizens reinforced the notion that I had it all wrong, and that the issues were what I should be following, not delegate counts.

During my senior year in high school, I received the biggest shock of my life, politically speaking. My Government teacher (a staunch Democrat) gave us a test with a series of questions about various political and social issues. The purpose of the test was to categorize you as a Democrat or a Republican. I was stunned to discover that my views were very much Republican. I had always been opposed to welfare, unemployment insurance, progressive income taxation, etc., but was too busy playing the game to realize that my views were almost completely opposite those of my beloved Democratic Party.

From that point forward, I started paying attention to the issues. Though neither Richard Nixon nor Gerald Ford did much for me personally, I voted for and rooted for both of them. It was hard to root for Republicans because I had always rooted for Democrats. It was like rooting against your favorite baseball team.

As my knowledge of the issues (and of myself) increased, I became interested in “fringe” candidates. In 1980, I was a rabid supporter of John Anderson. He was different from the rest, and he espoused many of my beliefs. My feeling was that he had a chance to win as a third party candidate. But a funny thing happened on the way to the voting booth.

A few months before the election, I stumbled across Milton Friedman’s Free to Choose series on PBS. It was so fascinating that I bought the book and read it cover-to-cover in about three days. It was my first comprehensive introduction to free-market thinking. My view of the world would never be the same.

Then about a month before the election, a friend of mine showed me a magazine article about Ed Clark, the Libertarian Party candidate. It blew me away. Here was a guy who lined up perfectly with my beliefs. This was the way to go! However, I still voted for Anderson. So much of myself was invested into his candidacy, that I couldn’t bring myself to vote for Ed Clark, but the positive consequence of the whole thing was that it killed my 20 year passion for playing the political game.

From that point forward, I “knew” that the Libertarian Party was the answer to America’s political problems. It was just a matter of working hard to get the message out, and convincing people that we had a chance. There are some great people involved in the Libertarian Party, and they have done some outstanding work toward the cause of freedom and free markets. Working with them and being exposed to their work was and is euphoric. I devoted a significant chunk of my life and my resources to the betterment of the movement.

As time went on, I became discouraged with the idea of achieving freedom through the Libertarian Party. The problem we were trying to solve was too much government in our lives. Or maybe the problem was government, period. How could we solve the problem of too much government by electing people to “serve” as part of the government? How would we convince enough people to vote for our candidates without compromising our positions? Did we really think we were going to win elections by advocating legalization of drugs, pornography, and the carrying of concealed weapons?

When openly questioning the idea of achieving freedom through the Libertarian Party, I would ask, “How can we solve the problem by utilizing the problem?” People would usually just look at me, as if to say, “You have to participate in government if you want to reform it.” That certainly is the universally accepted way of solving problems. On the other hand, thousands of years of history show it as a universal failure. After ten years of hard work, I dropped my membership to the Libertarian Party.

Government itself is the problem. Getting rid of it became my goal. Anarchy is defined as the lack of government. Unfortunately, the word anarchy means chaos to most people. They have been conditioned to believe that without government, the world would be one big riot with people shooting at each other all day long. The Wild West would be tame by comparison. I got absolutely nowhere trying to convince people that anarchy is the way to go.

A few years ago, I stumbled across The Voluntaryist, and Carl Watner’s book, I Must Speak Out. These writings shed an entirely different light on the lack of government. Instead of chaos, voluntaryism is based on order, peaceful relationships, self-interest, respect for the rights of others, and morality. It teaches that the end does not justify the means. It shares real-life, historical examples of problems that were solved through cooperation and self-interest, not force or theft. I still may not be able to convince anyone else of its merits. But for me, voluntaryism is the answer I have been seeking all these years.

by Hans Sherrer
Number 114 – 3^rd Quarter 2002

In 1776, the Declaration of Independence made it plain that in America, “Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive…, it is the Right of the People to alter or abolish it,…” The consent theory stated by the Declaration is standard fare in American politics. The Declaration, however, failed to address a very important question: How do individuals express their disapproval of a political regime and/or withdraw their consent from a government that they deem “destructive?”

There are several methods that Americans have used to demonstrate their lack of consent. One way is to renounce allegiance to an existing political order. The colonists in North America seceded from the British empire by successfully waging the Revolutionary War. On the other hand, the eleven Confederate states removed themselves from the federal union from 1861-1865, before being forcibly reintegrated back into the United States.[1]

A second way someone can express a lack of consent is to move to a different country. This is what several commentators have called “the exit option.”[2] History teaches that the last resort of the individual against tyranny is to escape from its jurisdiction. The Jews left Egypt; the Separatists fled England. History is replete with examples of people who “voted with their feet.”

A third way people express a lack of consent is by not voting. Although political pundits might not call it a withdrawl of consent, the fact is that millions upon millions of Americans show their displeasure with their government by not registering for and/or casting a ballot in political elections. Non-voting represents an exit from political society. It is a silent form of “social power” that speaks volumes. Choosing not to vote may be a form of apathy, but it is simultaneously an expression of “what I perceive is best for me.”

In other words, millions of non-voters are implicitly stating that voting is a meaningless and unimportant activity, so far as it applies to them and their loved ones in their own lives. After all, government programs, and spending and tax policies will continue regardless of how anyone votes. Furthermore, for those thinking individuals who understand that the government must “get out the vote,” the choice not to vote is a form of personal empowerment and a psychologically life-affirming act.[3] Those men and women who consciously choose not to participate in politics expose the lie behind the myth of “government by consent.” They have not consented to anything. In other words, their decision not to vote is a form of personal secession – the form of secession that is most readily available to them.[4]

This choice is exercised by many millions of Americans because they understand that elections are nothing more than tugs-of-war between tweedledum Democrats and tweedledee Republicans. Both parties seek the mantle of power to impose their agendas on society. Politicians of every political party want to continue the flow of tax money into the treasury and to pass laws allowing the government to increasingly invade the social spheres of daily life. As social commentator, one-time political candidate, and author Gore Vidal once noted: there is really only one political party in this country, and it has two incestuously related branches.[5]

Whether based on intuition or practical understanding, non-voters realize they only have a subservient role in the political structure described by Vidal. Without money, position or connections, they are disenfranchised from having any meaningful say-so in the government’s impact on their lives. Yet, in spite of this handicap, choosing not to vote can have a dramatic and positive effect on society. This is because a government’s survival is dependent on having a sufficient number of people grant it the appearance of legitimacy to act and elicit obedience.[6]

Whether it is an explicit intention or an implicit result, the decision not to vote is a way of decreasing governmental legitimacy. As Vladimir Bukovsky, the Russian dissident put it: “Power rests on nothing other than people’s consent to submit, and each person who refuses to submit to tyranny reduces it by one two-hundred-and-fifty-millionth, whereas each who compromises [with it] only increases it.”[7] Finally, there reaches a point at which a government no longer has enough consensus to act under any authority other than the exercise of raw, naked power. Once the mirage of legitimacy is gone, a government must become openly despotic to remain in power. This, in turn, tends to turn even more people away from supporting it, and can put its continued existence in doubt.

This isn’t armchair speculation. History records that variations of this scenario have occurred numerous times.[8] Who would have predicted that the Marco regime would fall from power in the Philippines? Who ever expected that the Communist government in Poland would be succeeded by Solidarity? Who ever thought that the Union of Soviet Socialist Republics would “splinter apart” in what seemed like the blink of an eye? However, it is usually a surprise to the “experts” when it happens, because it occurs quickly and at a time when a State appears, from the outside, to be at the height of its power.

This phenomenon of seemingly sudden social change is explained by physicist Per Bak’s theory of self-organizing criticality.[9] This theory, for example, explains how millions of grains of sand can methodically be added to a seemingly stable sand pile until a “point of criticality” is reached. At that point, adding only one more grain of sand will trigger an avalanche. Professor Bak’s theory has been used to help understand such diverse things as traffic flow and the trading of stocks. It is equally applicable to the delegitimizing impact any one non-voter can have on a political regime.

It is within the realm of possibility that some day the illegitimacy of the government of the United States might reach the point of criticality. What would happen if impassioned non-voters used the many methods of modern communications to express their ideas and dissatisfaction to others? At first thought it might seem preposterous to seriously consider that government in the United States could become delegititized. It isn’t. As sociologist Sebastian Scheerer has observed: “[T]here has never been a major social transformation in the history of mankind that ha[s] not been looked upon as unrealistic, idiotic, or utopian by the large majority of experts even a few years before the unthinkable became reality.”[10]

For a variety of reasons which the French author, Jacques Ellul, outlined in his book, The Political Illusion, non-voters choose to dispel the myth that the voters control the political process.[11] Instead of debasing themselves and dignifying the elections that have no positive impact on their lives, over a hundred million Americans regularly choose to distance themselves from the voting process and the political regime legitimized by it. They do so by selecting the option of not voting. The non-voters are right, and they are winning every election held in America.

Footnotes

1) It should be noted that the Confederate States successfully seceded, and that each state had to reapply for admission to the United States. The States were occupied by federal troops in order to coerce them into complying with these conditions. If the use of coercion to abtain their “consent” was illegal and immoral (as it would be in obtaining a signature on an ordinary contract), then what does this say about the status of these states today?

2) See Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States, Cambridge: Harvard University Press, 1970.

3) See “Remarks on the Psychological Aspects of Totalitarianism,” in Bruno Bettelheim, Surviving and Other Essays, New York: Vintage Books, 1980, pp.317-332.

4) Carl Watner, editor of the anthology of non-voting, Dissenting Electorate, first suggested this concept to me.

5) See “Homage to Daniel Shays,” in Gore Vidal, Hommage to Daniel Shays: Collected Essays 1952-1972, New York: Random House, 1972, pp.434-449.

6) See Herbert C. Kelman and V. Lee Hamilton, Crimes of Obedience: Toward a Social Psychology of Authority and Responsibility, New Haven: Yale University Press, 1999, p.116

7) Vladimir Bulovsky, To Build a Castle — My Life as a Dissenter, New York: The Viking Press, 1977, p.240.

8) See Kenneth Boulding, “The Impact of the Draft on the Legitimacy of the National State,” in Sol Tax (ed.), The Draft, Chicago: University of Chicago Press, 1967, pp.191-196. Also see Joseph A Tainter, The Collapse of Complex Societies, Cambridge: Cambridge University Press, 1997 (reprint edition).

9) Per Bak, How Nature Works: The Science of Self-Organized Criticality, New York: Springer-Verlag, 1996.

10) Sebastian Scheerer, “Towards Abolitionism,” in Contemporary Crises, Vol. 10, p.7; quoted in Thomas Mathiesen, Prison on Trial: A Critical Assessment, Thousand Oaks: SAGE Publications, 1990, p.156.

11) Jacques Ellul, translated by Konrad Kellen, The Political Illusion, New York: Alfred Knopf, 1967.

[Editor’s Note: This essay is reprinted by permission of the author. It first appeared in Dissenting Electorate (edited by Carl Watner with Wendy McElroy), Jefferson, NC: McFarland & Co., Inc., 2001, pp.126-129.]

Most well-known libertrians in these United States are in one way or another affiliated with corporations, in many cases tax-exempt corporations in promulgating libertarian principles. Furthermore, in defending free enterprise and markets from statist encroachment, libertarians often find themselves defending and allied with business corporations. As a result of these relationships and their concommitant allegiance to corporations, these libertarians compromise the objective, which is freedom. Liberty in America is on the wane because its friends have been captivated by the enemy’s treacherous child.

Corporations are pure-bred progeny of Leviathan. You can’t have one without the other. No libertarian principle can pretend to excuse their existence. Nothing from the lexicon of liberty can be said in defense of the corporate concept. Nevertheless, libertarians across the land are locked in conjugal bliss with these jackanapes. To paraphrase the wisdom of a man called Jesus, “Nothing can come from corn but corn, nothing from nettles but nettles.” Freedom cannot spring from the groin of Leviathan or its scion, nor from libertarians wed to corporations.

One absolutely inescapable prerequisite of a libertarian society is people who are willing to accept responsibility for themselves and their actions. The fundamental raison d’etre of incorporation is to avoid responsibility. A corporation shields its owners (stockholders) from responsibility (vis., liability) for the corporation’s actions by means of a legal fiction imposed and enforced by Leviathan. It is so contrary to libertarian purpose and principles as to assure that no libertarian society can emerge from a corporate culture.

Among Leviathan’s most efficacious, landmark achievements on the road to serfdom, few can compare with the Sixteenth Amendment and the income tax for top honors. Slavery and war are worthy contenders, but their pernicious affects upon liberty are not as subtle and cunning. It is inconceivable that libertarians would cultivate seeds of war or slavery, yet many diligently sow and grow Internal Revenue Code section 501(c)3 corporations. In return for a tax exemption and a shield from liability, they strengthen Leviathan’s stranglehold on freedom by legitimizing one of its tentacles.

FEE, Cato, FREE, Reason; look carefully at any libertarian think tank and what you will see is a tax-exempt, state-licensed, government-franchised corporation. Grove City College, Bob Jones University, Hillsdale College, and other noble, “independent,” educational institutions that bravely refuse government grants and loans on one hand, on the other hand operate government chartered, IRS-approved, tax-exempt corporate entities to receive private donations. By seeking and accepting privileges and immunities conferred by Leviathan upon corporations, these fine institutions confer legitimacy upon the State, enabling it to impose taxes, wage wars, conscript (i.e., enslave) soldiers, execute “traitors,” and suffocate liberty.

What’s to be done? Back in the 1950s when the Army Corp of Engineers and the Bureau of Reclamation set out to build Marble Canyon Dam in the Grand Canyon, a small environmental group took a stand against the project, and, in the eyes of most Western politicians and bureaucrats, a stand against progress. The statists summonsed the IRS which threatened to revoke the group’s tax exempt status if it continued to “lobby” against the dam. The group responded, “to hell with that!”, and defended the Grand Canyon anyway. The group – the Sierra Club – never stood taller nor grew faster than when it surrendered its tax-exempt status in order to battle Marble Canyon Dam – and won!

The Sierra Club is anything but libertarian, and I assume that it has subsequently reclaimed its 501(c)3 license. But for one brief shining moment it demonstrated the power of putting principles before pragmatism. To incorporated libertarian organizations I would say, go ye therefore and do likewise.

I’m sure the two women walked away from the microphone feeling proud of their efforts to help solve the medical care “crisis.” They had demonstrated their concern. They were involved. They were advocates for the less fortunate in our country. They can feel proud of themselves because they care and are compassionate. And I’m convinced that many others looked at them and thought how noble these two women were, especially the one who was so troubled by the plight of her grandmother.

But as I listened, I came away with quite another picture of these two. I didn’t see compassion. I saw arrogance. I saw two women who said that they have the right to force other people to work for them.

These women, and so many others like them, hide behind “government” to steal from others. They act as though their good intentions excuse their thievery. They are part of a group of people I refer to as “plunderers.” Their noble causes serve to mask the ugly nature of their actions. But noble motives cannot justify their behavior. Noble motives don’t change the nature of plunder.

Every man and woman has sole claim to his or her life and every person has sole claim to his or her labor and the fruits of his or her labor. If people choose to give their lives and labor to help others, that is a choice they make and a choice they have every right to make. No one, however, has a right to take anything from another. No one has a claim on the life or property of anyone else. To believe otherwise is to sanction theft and slavery, that is, plunder.

Slavery isn’t a race issue. It isn’t a class issue. It is the forcible taking of the lives and property of others. It doesn’t matter who does the taking or what excuse he offers.

These women wanted the government to bare its teeth on their behalf. They wanted the tax collector and his billy club to extort money from others to hand it over to the grandmother. By hiding behind the mask of government, they can appear civilized and kind and generous while their hired politicians are taking money (taxes) from their neighbors. If they went directly to their neighbors and demanded money for their grandmother’s prescriptions, everyone would recognize that a theft had occurred. But when they hide behind the mantle of politicians and tax collectors, they can pretend to be compassionate.

I wish I had been able to ask them some questions. For example:

You look like healthy, strong young women. How much money are you earning to make sure your grandmother(s) have the care and medicine they need? Why don’t you and your family look after your own grandmother? Why do you want to make someone else do it for you?

Why should someone else have to pay for your grandmother’s prescriptions? What right do you have to take money away from others so your grandmother won’t have to dip into her own savings to pay for her medicine?

Do you or your grandmother have the right to make someone else work to support you? If you do, how and when was it that the other person became your slave?

What makes you think that calling on Washington to do something won’t make the problem worse? After all, Washington has waged a multi-trillion dollar dollar war on poverty since the 1960s and we are no closer to eliminating poverty now than we were then. Billions have been sunk into government housing programs and many of the worst crime-infested neighborhoods in our cities are in those government-sponsored housing projects. Why do you think that getting government increasingly involved in the medical industry won’t drive the cost of medical care totally out of sight and eventually lead to government-mandated-and-directed rationing? And then where will your grandmother (and the rest of us) be?

Some medical costs are high. But could it be that those costs, in part, already reflect Washington’s deep involvement in the medical care industry? Won’t getting the government even more involved raise medical costs more dramatically, just as the cost of higher education went through the roof after Washington started footing education expenses?

You pretend to be compassionate, caring people. But your selfish, greedy natures, your disdain for your neighbor and desire for his money are all too evident to a careful observer. If you really do love your grandmother, then set aside part of your life and your money to take care of her. Don’t demand that others shoulder your family responsibilities. She is your grandmother.

These women are not untypical of a certain segment of America. They think they have a claim to other people’s lives and labor. They imagine some “need” and then demand government force people to pay for it. The size of their eyes and the perception of what they can get away with are all that set limits on their demands. A century ago nobody would have pretended that medical care was a “right” enforceable against the earnings of other people. No one would have suggested his neighbor should be forced to buy medicine for him. But America has grown fat and rich during the intervening century, and the greedy have crawled out of the woodwork to demand they get a portion of other people’s pies. They don’t wear the pirate’s eye patch and wield his sword, but they are about the same business he was — living off the life and labor of others. They mask their behavior behind high sounding rhetoric. They pretend to be compassionate, but the truth is they show no compassion for those who are forced to pay for their pet projects. It is clear that our country’s great wealth is devouring any moral sense we may have had. We have taken up the religion of ease and convenience and have cast aside personal responsibility.

Dear Friend —

Do you like the Social Security system? Would you like to get out of it? I can get you halfway out. No matter how much you make. And I’m going to tell you how in a minute.

First I want to review with you the nature of the Social Security system.

We all know what Social Security is — it’s a program of transfer payments from the young, mostly to the old. The young work; some portion of their earnings is taken from them; it’s sent to the retired or to other persons who are defined as eligible for benefits.

The Social Security system pitches itself as something else, and for the most part, it’s successful in its pitch. It pitches itself as a reliable guardian of your future. Nearly every recipient of Social Security monies will tell you, “It’s my money. I worked all my life and I paid into the system, and it’s mine.”

But it’s not.

Not only has the Supreme Court ruled in Helvering v. Davis (1937) and Flemming v. Nestor (1960) that Congress can alter and reduce benefits without any obligation to honor previous promises or levels of benefits, but it just stands to reason that in a democratic government a new majority can make any change in the law that is consistent with the Constitution. There is no law to prohibit the Congress from repealing the Social Security tax tomorrow, nothing to prohibit it from returning every dime it now holds, nothing to prohibit it from spending every dime it now holds, and nothing to prevent it from declaring that it cannot or will not make good on any promise of future payments. Just as nothing prohibits it from doing the same with the National Endowment for the Arts or any of the welfare programs.

Nothing.

And that’s just fine, because otherwise, it would mean that the dead would rule the living. The living could never undo the work of the dead and say, “That is not the kind of government we want.” Future generations would not be free to pass the kinds of laws they want to live under.

So we know: even on its own terms it’s not our money. Until the cheque arrives in the mail, no one can say it’s his money. And even then, you might be a little uneasy about saying it.

After all, where did it really come from? You know it wasn’t sitting in an account somewhere where you had deposited it, with your name on it, like a passbook savings account. No, the money you put in was spent long ago. The money you get now or will get (if there is any) will be money taken from working people. Your children, perhaps. Or your grandchildren. Maybe the neighbors’ kids, who wave at you and say good morning and who have never done you any harm.

You will get their money. They will be working for you.

Or, to turn it around, someone else is getting your money today. You’re working for someone else today.

Now let me talk for just a moment about a movie. Remember Spartacus? It’s about a slave uprising in ancient Rome, about 50 years before the birth of Christ. It’s not particularly accurate historically, but there’s a scene which, if you saw it, you have probably never forgotten. And probably would want never to forget.

Spartacus’s army of slaves has been defeated by the Roman consul Crassus. The penalty awaiting every one of the former slaves is death by crucifixion. Crassus puts out the offer that all of them will be spared and returned to their lives as slaves if just one of them will identify the living body or the corpse of their leader, Spartacus. As Spartacus is about to stand to identify himself, the man next to him quickly shouts, “I’m Spartacus.” Another stands up and cries out, “No, I’m Spartacus.” And in a few short seconds every man is on his feet calling out, “I’m Spartacus!”

It may well be the most heroic scene in all of motion pictures. Maybe the most heroic scene in all of fiction.

Anyone who sees it hopes in his heart of hearts that if he had been there he would have done the same. Some even wish they had been there to do it.

There is nothing for any one of the slaves to gain by his cry. There is no profit in it. There is only honor.

Each of them would rather die than inform on the man who had led them to the only freedom — however short-lived — they had known. Each of them is willing to die in his place.

There are no illusions here. No hopes that Crassus will think, “Well, isn’t that nice. They are all such honorable and loyal chaps. Let’s just let them all go if they’ll promise to go back to work.” No. They will all be crucified. And they are. Not one of them faced with a cross says, “No, wait.”

That’s just how honor works sometimes. Its only value is to the man who has it, and only he can tell us what its value is to him. Sometimes it wins him glory; sometimes it wins him nothing but a quiet satisfaction that lets him shave in the morning; sometimes it gets him hanged.

What does that have to do with getting out of the Social Security system?

There are two parts to the Social Security system: you pay in; you get the benefits. You stand with two feet in the circle.

I can’t help you with the payments you make into the system. They are required by law, and I know of no legal way to avoid paying them. As far as I know, the state requires that you keep that foot in the circle.

But I can help you with the benefits. In fact, you don’t even need my help. You can put your other foot out of the circle any time you want: You can get halfway out of the system by never cashing another Social Security cheque in your life, by never applying for benefits.

That’s it. There’s nothing in it for you except the knowledge that you are not taking money from your children that they don’t want to give you or from your neighbors, that no one has to work for you who doesn’t want to.

What’s in it for you? I just told you. Honor. Holding on to it. Reclaiming it. Living with it.

You know the money isn’t yours. Don’t take it. Don’t spend it. Don’t ask for it.

In other words, if you want out of the Social Security system, the simple first step is to forswear your Social Security benefits.

That’s what “I’m Spartacus” is: a league of people who have forsworn their benefits. Who have said, “I will not take anything from people who have not freely given it to me.” It’s a league of honor.

What do I want? Membership dues? No. Donations? Not yet. Am I selling a subscription? Nope.

I want your signature on the card enclosed with this mailing. It says, “I’m Spartacus. I forswear all my Social Security benefits. I will not apply for them, and if I am already receiving them, I will not cash another cheque from the Social Security system.”

How will I know whether you keep your promise? How will anyone know? Am I asking you to sign an official document and send it to the Social Security office? No. Tear a cheque in half, if you’re already receiving Social Security, and send me one half so that I know? No.

This is a league of honor. Your honor. What sense does it make for me to ask you to do anything but to keep your word? You’ll know whether you do that.

The purpose of “I’m Spartacus”: A League of Honor is not to get involved with politics, not to endorse candidates or to put out voter-information scorecards. It doesn’t analyze the Social Security system and make policy recommendations.

It has one purpose and one purpose only: to get every working man and woman and every retired man and woman to say, “I’m Spartacus. I forswear all Social Security benefits.”

“Everyone? That’s a lot of people. You’ll never get that,” I hear you say. I probably won’t. But that’s the ultimate purpose. That’s not the victory.

The victory is something else entirely: I define it very simply. It’s not to bring down the Social Security system; it’s not to instigate a tax rebellion. Victory is your name on a card with a pledge that only you know whether you’ll keep.

That’s the only victory I am looking for. If I get just one card back with just one signature on it — yours — I will have won the one thing I want.

Contact Ronald Neff via: The Last Ditch

by Carl Watner
Number 111 – 4^th Quarter 2001

Ronald Neff, the author of the following article, “I’m Spartacus,” sent me this article in October 2000. I apologize to him and my readers for delaying its publication.

The subject of his article is the American citizen’s rejection of his or her Social Security benefits, a topic that cuts close to home because it hits us right in our pocketbooks. The government steals from us and then turns around and returns tax monies to us under the guise of retirement earnings.

A number of articles in The Voluntaryist have dealt with the federal government’s “Indian giving.” The foremost one was titled “I Don’t Want Nothing From Him!” (Issue No. 31) and was reprinted in The Voluntaryist anthology. Two points from that article will be reiterated here. First, it told the story of the mother of C.V. Myers, the Canadian investment advisor. Initially, she refused to apply for her Canadian, old age pension checks. Finally, her children “cajoled her into applying.” When she died, they found each and every monthly check stacked on her shelf, uncashed. She had meant “No!” and stuck by her guns. The second point of that article was this: Regardless of how much money the government steals from you in the way of payroll taxes, it is impossible in the nature of things for the government to return your own money to you. Whatever money you receive years later is money that has been stolen from someone else. Therefore, there is no justification in saying that you are “getting your money back.” You are, in fact, getting someone else’s money, and thereby participating in and sanctioning a government program of theft. I suggest that those who are more interested in this subject consult this earlier article. Copies are available if you do not have the anthology.

A second short article on this same theme appeared in Whole No. 41 in December 1989. It was written by R.S. Jaggard, M.D., who is now deceased. “Freedom Is Available” is being reprinted in this issue because it makes the point that no one is forced to accept government money. It may hurt not to, but the government is not forcing you take its benefits. As Jaggard wrote, “Avoidance of such an ethical disaster and preservation of freedom is easy. DO NOT TAKE THE GOVERNMENT MONEY. Just say, ‘No’.”

In preparing Ronn Neff’s article for publication, I sent it out to a number of people who subscribe to The Voluntaryist in order to get their reactions. A number of them already informally belong to the “I’m Spartacus” league. Since some of them wished to preserve their anonymity, I will repeat their remarks without attribution (except one that I found published in an anarchist/atheist magazine).

One, a farmer, wrote that

I was taught from my youth not to accept government money. However, it is only in the last seven years since reading The Voluntaryist and other anarcho-capitalist writings that I came to see the government system as a criminal institution.

If I want something that belongs to my neighbor, there are three things standing in my way: my conscience, my honor, and the law. So I look around for an entity that knows how, and is willing to overcome all three.

I find it in the U.S. government.

Oh, but I don’t want to hand myself over to them.

Once in a while we receive notices in the mail, telling us we are “eligible,” and we have received checks, but we have never cashed them. We just say, “No.” This way we can always say, “We never took anything from you, now leave us alone.”

Surely integrity and honor are more valuable possessions than immediate gratification.

A husband of a husband-and-wife team of private school teachers wrote that both had

been invited by Social Security to dip into the loot for a share, and both of us have refused. We have never thought about the profit of honor in regard to what we are doing. Our choice is based more on avoiding the self-proclaimed title of thief than in gaining a profit from it. Psychologically speaking, I like the idea that we gain another portion of honor even as we avoid a dishonor. I think it is an important point to remember. Also, I think it is important to wonder a little bit about this profit called honor which has no atomic weight nor chemical number to it, but which can infuse us with an energy nonetheless.

Fred Woodworth, editor of The Match! (Box 3012, Tucson, AZ 85702), published these remarks in his Issue 94 from the Summer 1999:

I myself will never ask these criminals for anything, and if necessary will live in a cardboard box in the park when I’m old, rather than grant these bureaucratic assholes one particle of legitimacy. Others may apply and comply, hat in hand, but not me. I’d puke up any food bought by such means, and any roof over my head that was bought by such largess would be hateful even in the coldest howling storm. Personally, I didn’t come this far only to envision a day when statist charity would seem to make sense. I don’t expect anybody anywhere else to behave this way, but if I myself don’t then the message of this particular project — The Match! — becomes susceptible of some other grinning patronizer’s supercilious disdain. [p. 49]

A retired widow, now living in Texas, wrote:

I never approved of Social Security from its inception, though I paid into it while I was working before I was married. My dad first interested me in our country, government, taxation, education, and I became politically active, in clubs, working in the precinct, etc. Then I went to the Freedom School and when I got home I dropped all political connections, even ceasing to vote. I was very enthusiastic about my new outlook, which remains with me today, and from discussions with my husband, believed he had adopted the same views. However, the day came when he decided to take Social Security checks. He wanted to get back what was his. I pointed out to him that “his” had long since been spent, possibly on the sex life of some bug, or maybe to raise Congressional salaries, but gone, squandered; that what he would get would be taken from those paying in today. I then asked him if he really wanted to be the receiver of stolen goods. My arguments were of no avail. It was almost divorce material. The first check he got was a big one as he was a few years beyond the age of eligibility, and then monthly checks. When he passed on, I went to the Social Security office and asked them to stop sending the checks. “Oh, but you can get some of it.”

“Do I have to take it?” I asked.

“No, but if you don’t by a certain age, you won’t be able to get it.”

That age has come and gone, and I have never taken Social Security. I remember Oscar Cooley wrote in a column once that he had not taken it, but the SS people forced him to, so he gave it to charity….

FEE once had an ad asking people to write in if they didn’t take Social Security benefits. I wrote and was “rewarded” (how funny) for not taking it with their new book publications sent from time to time. Such a nice gesture on their part. I know Hans and Mary Sennholz [in the past, at least, didn’t take] SS.

I wrote the Foundation for Economic Education, but they were unable to furnish more information about their ad campaign to locate people that refused Social Security benefits. Hans Sennholz informed me that these advertisements probably reached a readership of more than 100,000 people, but that “only six lonely voices got in touch with [him].” Dr. Sennholz was also very bitter about the Medicare legislation passed during the Reagan years that “practically outlawed medical care for the elderly unless they joined the Medicare System. Physicians who treat Medicare patients [a]re fined $2000 for every treatment of private patients.”

A common response among two of my correspondents was that they understood how Social Security benefits corrupted the mindset of American senior citizens. However, due to their personal circumstances, rather than refuse government money, they accept it and then donate it to charitable causes. Of course, I am sure they recognize that a thief is a thief even if he means well or gives his loot to a good cause. Dr. Sennholz once pointed out in an article in The Freeman (June 1978, pp. 337-338), that “we must stand immune to the temptations of evil, regardless of what others are doing to us. The redistribution must stop with us…. No matter how the transfer state may victimize [us], [we] shall seek no transfer payments, or accept any.” Bob LeFevre put it somewhat differently. There is only one way “to put government in its proper place. [It] is within the grasp of every human being. The tool is his own mind and will, his own determination NOT to rely upon the government for anything at all.” (Colorado Springs Gazette-Telegraph, July 25, 1959)

Read on to find out about the “I’m Spartacus” league.

 By Carl Watner

History detectives unite! What is the common element in these episodes in American history?

• On his march through Georgia, near the end of the Civil War, General William T. Sherman used a map annotated with county-by- county livestock and crop information “to help his troops ‘live off the land’;”
• During World War I, the Justice Department prosecuted men who did not register for the draft. Government records helped them determine the names and ages of evaders [Bohme and Pemberton, p. 1];
• During World War II, the Army used information regarding how many Japanese-Americans were living on the West coast, and how many lived in any given neighborhood; and then used that data to help round them up and intern them;
• In 1983, the IRS attempted to determine the names of those not filing federal income tax returns by comparing names in government records to the names in privately purchased mailing lists [Bovard].

Any guesses? How did General Sherman, the Justice Department, the Army, and the IRS get that information? If you guessed “the census,” you were right!

Voluntaryism and the Census

The impetus for this article was James Scott’s book, SEEING LIKE THE STATE (New Haven: Yale University Press, 1998). One of Scott’s main themes is concerned with what he describes as “legibility.” How much does the State know about its citizens and how visible are they and their activities to the State? Historically, how did the State “gradually get a handle on its subjects and their environment?” He answers this question in the following manner: “Much of early modern European statecraft,” such as “the creation of permanent last names, the standardization of weights and measures, the establishment of cadastral [land] surveys and population registers, the invention of freehold tenure, the standardization of language and legal discourse, the design of cities, and the organization of transportation” permitted not only “a more finely tuned system of taxation and conscription but also greatly enhanced” the state’s ability to intervene in society. [pp. 2-3] The use of survey maps, census returns, state-designated names, addresses, and identifiers all increased the state’s capacity to rule. On the other hand, as Scott writes: “If we imagine a state that has no reliable means of enumerating and locating its population, gauging its wealth, and mapping its land, resources, and settlements, we are imagining a state whose interventions in that society are necessarily crude. … An illegible society, then, is a hindrance to any effective intervention by the state, … .” [pp. 77-78]

One of the most interesting sections of Scott’s book deals with “The Creation of Surnames.” He explains that “universal last names are a fairly recent historical phenomenon,” and that until sometime during the 1300s few Europeans used permanent last names. [pp. 65-71] It is his contention that

Some of the categories that we most take for granted and with which we now routinely apprehend the social world had their origin in state projects of standardization and legibility. Consider, for example, something as fundamental as permanent surnames. … Tax and tithe rolls, property rolls, conscription lists, censuses, and property deeds recognized in law were inconceivable without some means of fixing an individual’s identity and linking him or her to a kin group. Campaigns to assign permanent patronyms have typically taken place … in the context of a state’s exertions to put its fiscal system on a sounder and more lucrative footing. Fearing … that an effort to enumerate and register them could be a prelude to some new tax burden or conscription, … population[s] … often resisted such campaigns.[pp. 64-65]

Most historians of English surnames and naming practices agree with Scott’s interpretation. For example, C. M. Matthew’s (in his book English Surnames [1967, p. 44]) points out that the English Poll Tax of 1381, not only precipitated the Peasant’s Revolt, but gave added impetus to the use of hereditary surnames. People who had already paid their poll tax once did not want to have to pay it a second time because state officials could not accurately identify them or verify that they had previously paid.

It was Scott’s mention of the census that made me curious about the history of governments’ attempts at counting its people. Intuitively, it would seem that a State’s ability to keep tabs on its population – to know how many potential soldiers it has available, to know how many factories may be converted to military uses, to know the amount of revenue it might possibly collect, all these and other aspects of the census – would be critical to those engaged in the exercise of State power. Historically, this is certainly true. One of government’s earliest activities was enumerating its citizens and their resources. From the Biblical story of the sin of David, when King David’s choice to number his people resulted in a pestilence that felled seventy thousand Hebrews, to the Roman censors who counted the Joseph, Mary, and Jesus in Bethlehem; from the decennial censuses provided for in the United States Constitution of 1789, to the 21st Century penalties and punishments for those who refuse to cooperate with federal census-takers – history is replete with examples of making the citizen more knowable to the State. Thus the purpose of this article is to survey the efforts of the State to use the census to maintain its conquest and control over its subject population.

However before that story is related, let me state my fundamental opposition to State censuses and the collection of information by the State. As long-time readers of this newsletter probably realize, my objection to State censuses is not so much directed at the collection of information, but rather at the coercive nature of the institution that gathers it. If some private organization chooses to solicit information from me, I may or may not respond. But regardless of my choice, I will suffer no criminal penalties if I refuse to cooperate. When the State collects information about the people and their affairs there are possible fines, penalties, or imprisonment for those who will not answer. As we shall see, this was true when the United States Congress passed its first census legislation in 1790, and is still true today. So even though I am spending a great deal of time and effort outlining the history of government censuses, I want to state that I am unalterably opposed to State censuses of any kind; that I advocate complete and total civil disobedience to State laws that provide for censuses; and that it is my belief that State collection of information about its people and their resources represents the complete antithesis of a free and voluntaryist society. So with that said, let us delve into the history of the census.

Early Censuses

The word ‘census’ is commonly defined as an official enumeration of people, houses, firms, or other important items in a country. “The term itself comes from the Latin ‘censure’ which means ‘to tax’.” Most early censuses involved the counting of males of military age, of heads of households and their valuables, or of landowners. Such inventories were primarily made for the purpose of determining who should be taxed or conscripted into the military or forced to labor for the state. Such pre-modern censuses tended to be inaccurate for the simple reason that the individuals involved were disposed to appear invisible to the state. It was not in an individual’s interest to be counted or give correct information. Unlike contemporary population censuses, these early enumerations did not seek to count all the people in a given politically defined area. [“Census,” p.22]

Surveys of military-age population and wealth occurred in ancient Bablyonia, Persia, Israel, China, and Rome. The Hebrews repeatedly counted the number of their fighting men after their exodus from Egypt. A census taken in 1017 B.C. was commanded by King David. Accounts are found in the 24th chapter of Samuel II, and in chapters 21, 23, and 27 of Chronicles I. “Satan stood up against Israel and provoked David to number Israel.” In response to the “sin” committed by King David, the Lord gave him three choices: three years of famine, defeat in battle, or three days of pestilence. David chose the later, during which some 70,000 Hebrews fell dead of illness. Sir George H. Knibbs (1858-1929), who organized the first census in Australia was of the opinion that the story of King David’s census made many people feel “that the Lord’s wrath was an indication of his displeasure with counting people.” He believed that this attitude “had the effect of delaying the adoption of the census by Christian Europe for many years.” [Alterman, p. 26]

The Roman censor was an important public official charged, not only with the guardianship of the public morals, but with the official registration of all citizens, the valuation of their property, and the collection of revenue. Augustus, the first Roman emperor (27 B.C. – 14 A. D.), conducted a census to determine the military resources, population and wealth of his empire. Later emperors recognized the public role of the censor and the census, but with the fall of Rome in the fifth century, there was no public authority with enough power to resume the practice until the emergence of modern nation-states in the 15th and 16th centuries. The main exception was the inquest of William the Conqueror of England, known as the Domesday Book begun on Christmas Day of 1085. Its primary goal was to determine the extent and value of his newly conquered lands and to identify his tenants.

The modern, state-conducted population census did not emerge all at once. Efforts were made in New France (Quebec) and Acadia (Nova Scotia), where sixteen enumerations were made between 1665 and 1754. In 1749, the Swedish government obtained lists of parishioners, long kept by the clergy, in an effort to determine the populations of Sweden and Finland. In 1753, ‘An Act for Taking and Registering an Annual Account of the Total Number of People …’ in Great Britain was proposed in Parliament. William Thornton, who opposed the bill in the House of Commons, found nothing but ill in the proposal.

He could find no advantage in knowing our numbers. ‘Can it be pretended, that by knowledge of our number, or our wealth, either can be increased?’ He thus inferred that the result of the project would be increased tyranny at home, … . It was ‘totally subversive of the last remains of English liberty.’ If it became law, he would oppose its execution, and if any official came to collect information regarding the ‘number and circumstances of my family, I would refuse it; and, if he persisted in the affront, I would order my servants to give him the discipline of the horse pond … .’ If necessary he would spend his remaining days in some other country rather than be a spectator of the ruin he could not prevent. [Glass, pp. 19-20]

Thornton’s opposition was successful, and it was not until late 1800 that a census bill was actually passed by Parliament. The enumeration took place on March 10, 1801, nearly a decade after the first federal census in the United States.

Census Guidelines

The United Nations has taken an instrumental part in conducting world population surveys by offering technical assistance in the planning and conduct of censuses by its member nations. In the decade after World War II “at least 150 nations or areas took censuses collecting individual data on more than two billion persons” and “when China reported a census in 1953, the last large part of the world was removed from demographic darkness.” [“Census,” p. 22] The statement of a Nigerian statistician, pretty much sums up the unofficial attitude of United Nations bureaucrats: “Without an accurate census you cannot plan.” [Scott, p. 24] According to the United Nations a population census must have six key features. They are:

1. National Sponsorship: Only a government has the resources to conduct a thorough census, and only a government has the power to compel its citizens to participate in the process.
2. Defined Territory: The geographic coverage must be defined precisely, and boundary changes from one census to the next must be clearly identified.
3. Universality: All persons residing within the defined territory must be counted with no duplications or omissions.
4. Simultaneity: The census must take place on a fixed date [(known as the census moment). The tally must be made in one of two ways — people must be counted according to their regular or legal residence or according to the place where they spend the night of the day enumerated.]. As nearly as possible, persons should be counted at the same, well-defined point in time. Individuals born after the reference date, or who die before that date are excluded from the count.
5. Individual Enumeration: Data should be collected separately for each individual. … [T]he individual person remains the basic unit of enumeration.
6. Publication: A census is not complete until results have been compiled and published. [Lavin, p. 6]

These United Nations guidelines offer one means of establishing a population count, but there is at least one other method that has been used in modern times. The population register has been used in China by the political authorities to both keep track of individual citizens, as well as a means of establishing a population count. Such a system must be “permanent, compulsory, and continuously updated.” [Lavin, p. 4] A file is opened on each citizen as he or she is born. Important developments are recorded in the file as they occur. For example, when a person moved or married entries would be made; when he or she died, the name would be removed from the registry. Under such a system, a population count would simply consist of counting the number of current entries in the register. In the communist bloc countries, where such registers were popular, periodic censuses were still conducted in order to check their accuracy. While only a few nations maintain such universal population registers today (Taiwan, being one), many others have specialized directories for recording special events. In the United States, for example, such registers consist of birth and death records maintained by state departments of health and vital statistics, voting records (lists of those who are qualified and registered to vote in political elections), registers of motorists holding drivers licenses, and lists of retirees applying for and receiving Social Security benefits.

Censuses in the Early United States

The North American colonists were no strangers to censuses. “From the settlement of Jamestown, Virginia, in 1607 to the first national census in 1790, there were at least thirty-eight counts of population in some American colony.” [Alterman, pp. 164-165] Many of these numberings were instigated by the British Board of Trade, in order to obtain information that would be of value to its administration of colonial affairs. Before 1790, there were eleven enumerations in New York, seven in Rhode Island, and four each in New Hampshire and Connecticut. A total of 27 of these 38 censuses were taken before the Continental Congress met in 1774. Only the people in Pennsylvania, Delaware, North Carolina, and Georgia had never been counted until the first federal census in 1790.

The census played a pivotal role in the history of the United States, from the very inception of the revolution against Great Britain. The reason was simple. There had to be some acceptable way for the members of the Continental Congress and the Congress of the Articles of Confederation to assess and collect revenue for the government. The original version of the Articles of Confederation, which was introduced as early as 1776, provided for a triennial enumeration of the population as the basis for apportioning the charges of war and other expenditures. During the Revolutionary War, when the American government issued bills of credit, it became the obligation of each colony to redeem its share in proportion to the number of its inhabitants of all ages, including mulattos and negroes. When the final version of the Articles of Confederation was adopted in 1781, the value of land was actually used as the basis of apportioning contributions from each state to the federal government. However, Congress was authorized to make requisitions for fighting men according to the white population of the several states. Consequently in November 1781, Congress considered a resolution urging the several states to make an enumeration of their white inhabitants, pursuant to the ninth article of the Articles. Although the resolution failed to pass, the Articles of Confederation “unquestionably contemplated a national census to include both a valuation of land and an enumeration of population.” [Cummings, p. 670]

When the details of the federal Constitution were under discussion, in Philadelphia in 1787, delegates had to consider the fact that for years the Continental Congress had asked the states to conduct censuses for purposes of apportioning expenses and manpower. The states had either refused to comply, or, in those that did, there was no consistently-applied method of conducting the census and counting the people. The delegates were also faced with the difficult question of how to balance representation in the new government with responsibility for sharing in its expenses. A federally-conducted census was the linchpin as to how to link taxation and representation. As Margo Anderson, in her book THE AMERICAN CENSUS explained: “Such a coupling was one of the classic checks and balances of the Constitution. Large states would receive more House representation but would pay more taxes. And the coupling would guard against fraud in the taking of the census. Areas that might wish to overestimate their population to gain representation would pay the penalty by raising their tax burden. Likewise, areas that tried to evade taxes through undercounting their population would also lose representation in Congress. The census was intended to solve the [hitherto] intractable problem of defining the basis of representation and taxation – by balancing gains from representation against the penalties of taxation for a state or local area.” [Anderson, p. 10]

The First Federal Census

When the legislation for conducting the census was discussed in the House and Senate of the first Congress, James Madison become the foremost advocate of expanding the census count beyond the simple constitutional stipulation to determine the number of free and enslaved persons in the country. Madison was a member of the committee responsible for drawing up the “enumeration bill.” In it, he proposed “classifying the population into five categories — free white males, subdivided into those over and under the age of sixteen, free white females, free blacks, and slaves – and for identifying each working person by occupation.” [Cohen, p. 159] The question was immediately raised as to whether or not this transcended Congress’ “constitutional powers in authorizing purely statistical inquiries other than those for the single purpose of apportioning representatives and direct taxes.” [North, p. 42] The only essential required by the Constitution, as we have seen, was to distinguish free persons from the slaves, since slaves were only to be counted as three-fifths of a person for purposes of representation. Further distinctions, such as “distinguishing free blacks from whites, females from males, and boys from men, as Madison proposed, had the effect of identifying and isolating the group that most mattered, the free white adult males – in other words, the workers, voters, and soldiers of the [new] nation.” [Cohen, p. 159]

Madison’s proposal for identifying each working person by occupation was opposed in the House by Samuel Livermore of New Hampshire. Livermore claimed that it would be difficult to assign to each person one single occupation. “His constituents, for example, often had two or three [occupations] depending on the season.” He also noted that attempting to determine their occupation “would excite the jealousy of the people; they would suspect that the government was so particular, in order to learn of their ability to bear the burthen of direct or other taxes,” and hence “they would refuse to cooperate” with the census takers. The House eventually passed Madison’s proposal, but “the Senate approved only the five basic categories of sex and race as legitimate objects of inquiry.” [Cohen, p. 160]

It was not until the census of 1840 that a concerted effort was made to expand the statistical scope of the census beyond Madison’s basic enumeration. Men of the new American republic, beginning in the early 1790s, made it a point to collect information about the new country, including details about population, wealth, trade, industry, occupations, and both civil and religious institutions. Prominent men, like Noah Webster of dictionary fame, and Timothy Dwight of Yale University, collected and edited statistical gazetteers, commercial reference works, statistical manuals, and almanacs to record and disseminate a wide potpourri of facts relating to American society and its new government. Works of this genre included A VIEW OF THE UNITED STATES OF AMERICA (Philadelphia: 1794), A GEOGRAPHICAL, COMMERCIAL, AND PHILOSOPHICAL VIEW OF THE PRESENT SITUATION OF THE UNITED STATES (New York: 1795), and FACTS AND CALCULATIONS RESPECTING THE POPULATION AND TERRITORY OF THE UNITED STATES (Boston: 1799). Since the compiling of statistical information by the federal government was limited largely to the population census, the task of “broad fact-finding missions” was “first taken up by private individuals” who published state and local gazetteers and regional guidebooks. [Cohen, p. 151] Joseph Worcester, editor of THE AMERICAN ALMANAC AND REPOSITORY OF USEFUL KNOWLEDGE (1831) agitated for an increased role of the federal government in collecting statistics in the 1840 census. “His own experience with the ALMANAC had made it clear to him that data collection on” the scale he envisioned “was beyond the capacities of individuals or even private associations.” He recommended that the federal government makes its decennial census an all encompassing survey of America. [Cohen, p. 179]

Although the census was not expanded until fifty years after its beginning, it is clear that the Founding Fathers saw the census as an important tool of the federal government. The United States was the first country in the history of the world to mandate a census in its constitution. [Lavin, p. 24] Found in Article I, Section 2, Paragraph 3 is the requirement that “The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.” The members of the first congress considered this a serious part of their governing agenda. Not only would the federal censuses eventually determine how many of them would be chosen from each state, but they probably hoped that the first federal census would have “a unifying effect upon the country.” [Alterman, p. 207] Certainly there must have been some residents of the United States who had never heard of the adoption of the new constitution or who, for whatever reasons, did not consider themselves citizens or subjects to be ruled by the new government. Many of the self-reliant and independent Americans on the frontier “did not [always] take kindly to [political] authority, which inevitably to them meant order, limitations on freedom of action, mutual obligations, and, worst of all taxes.” [Nelson, pp. 42-43] The census taker was probably the first representative of the new federal government that many of these “ungovernables” met.

Resistance to the First Census

The legislation implementing the federal census is found in THE PUBLIC STATUTES AT LARGE OF THE UNITED STATES, First Congress, Session II, Chapter 2. In Section 6 of “An Act providing for the enumeration of the Inhabitants of the United States,” approved March 1, 1790, Congress made sure that those counting the American people for the very first time – as Americans – would have something with which to threaten possible recalcitrants:

That each and every person more than sixteen years of age … shall be, and hereby is, obliged to render to such [marshal’s] assistant [the actual census taker], a true account, if required, to the best of his or her knowledge, of all and every person … on pain of forfeiting twenty dollars, to be sued for and recovered by such assistant, the one half for his own use, and the other half for the use of the United States.

And, indeed, those census takers did meet with some resistance! “One difficulty encountered by the enumerators in certain sections of the country was the unwillingness of the people” to cooperate. [North, p. 45] Heretofore, some of the people had never been counted. Others were superstitious, remembering an early colonial enumeration in New York that had been followed by much sickness. “But a very much more potent factor in arousing opposition to the enumeration was the belief that the census was in some way connected with taxation.” [North, p. 46] This is confirmed by at least one contemporary source. On July 28, 1791 George Washington wrote a letter to Gouverneur Morris regarding the census. In it he noted that

the real number [of people] will greatly exceed the official return, because, from religious scruples, some would not give in their lists; from an apprehension that it was intended as the foundation of a tax, others concealed or diminished theirs; and from the indolence of the mass and want of activity in many of the deputy enumerators, numbers were omitted. [Bohme and Dailey, p. 424]

Federal enumerators, appointed by the marshals in each judicial district, began their work on August 2, 1790. They had a tremendous amount of territory to cover, and often met with difficult travel conditions, as well as suspicion from the populace. Nevertheless, the census schedules were completed on time – by October 1791 – for every state but South Carolina. By an act passed on November 8, 1791, the time for completing the census in that state was extended from the end of April 1791 to March 1, 1792. The delay in South Carolina partially resulted from the fact that the federal marshall experienced difficulty in getting assistants at the lawful rate of pay. Another potent reason for the delay was that the enumeration met with some opposition from the people. On September 26, 1791, it was reported in the STATE GAZETTE of South Carolina, published in Charleston, that the grand jury of the Federal District for Charleston, made the following presentment a week earlier:

That they have examined the several returns of the marshal of the said district, and find them accurate and correct for every part of the state, except that part of Charleston district ….

We present on the information of Hezekia Roberts, one of the assistants to the marshal, William Reynolds of St. Helena island, in Beaufort district, for refusing to render an account of his family, pursuant to the directions of the aforesaid act.

We present on the information of Jacob Fitzpatrick, another of the marshal’s assistants, William Russell, Jacob Vanzant, Benjamin Ingram, Ragnal Williams, and James Hayes, all of Orangeburg …, for refusing to render an account of their respective families. …

Subsequent issues of the paper do not indicate what disposition was made of these cases. Nor does a check of surviving federal archives indicate whether any of these resistants were punished.

Should There Even Be a Census?

In 1996, author, Michael Lavin in his book UNDERSTANDING THE CENSUS raised the question: “Can the government force people to answer the Census?” His answer is revealing:

Under Title 13 [of the United States Code], all residents are obligated to answer Census questions completely and truthfully. This has been a feature of Census law since 1790. Failure to com- ply can result in fines and/or imprisonment. In practice, however, few people have been prosecuted for refusing to answer the Census. The success of each decennial census depends largely on public cooperation. [p. 11]

Actually, Mr. Lavin does not answer the question he raises. The government cannot force people to answer the Census; all it can do is punish them if they do not. That is what the government threatened to do in late 1791 to resisters to its first census; and that is all it can do to resisters in the Year 2000 Census. But what makes his question so interesting is that over the years the nature of the census and people’s attitudes about it have changed.

Originally, early U.S. census schedules were posted publicly to enable residents to be sure that they were counted and to allow them to correct any erroneous information. Until 1840, each enumerator was to have a copy of his census schedule posted at two of the most important public places in his jurisdiction so that they could be inspected by the public. “From 1840 through 1870, census takers were instructed to keep their records confidential, but no legal restrictions were imposed. Beginning in 1880, and continuing to this day, all Census employees have taken an oath of confidentiality, and since 1890, penalties have been established for breaking that oath. In 1910, William Howard Taft issued the first Presidential Proclamation on Census confidentiality, a tradition which has been followed in every subsequent Census.” [Lavin, p. 11] Taft’s Proclamation stated that the Census was to be only used to generate statistical information. As President Taft declared

The census has nothing to do with taxation, with army or jury service, with the compulsion of school attendance, with the regulation of immigration, or with the enforcement of any national, State, or local law or ordinance, nor can any person be harmed in any way furnishing the information required. There need be no fear that any disclosure will be made regarding any individual person or his affairs. [“Proclamation for Thirteenth Decennial Census,” March 15, 1910 cited in Bohme and Pemberton, p. 8]

Yet there has never been a law that has prevented other agencies of the government from using census data to their advantage. One way is the “use of census information to detect illegal two-family dwellings.” Many local jurisdictions responsible for building code enforcement takes census data applicable to their area and analyze it “to check compliance with zoning regulations.” [Bovard]

Despite the fact that Social Security numbers are not recorded during the decennial censuses, and that the Freedom of Information Act does not apply to individual census records, some small “percentage of the U.S. population has always chosen to evade” the census-taker. [U.S. General Accounting Office, p. 32] Even the most ardent proponent of the census recognizes that some people will be missed – either because of they refuse to be counted because of their conscientious objections or because of simple technical errors in collecting data. But the fact remains that a successful census is based upon the individual’s willingness to respond – in short, any national census depends upon the willing cooperation of the public. It is imperative that the questions raised on the census schedules be acceptable to the majority of people; otherwise their failure to answer or their offering of false answers will invalidate the efforts of even the best-intentioned government.

Probably no other government collects and publishes as much information about its people as the American polity. “Every conceivable aspect of our society is measured and analyzed, but one of the most frequently examined is the demographic information – statistics on the number, distribution, and character of people.” The federal and state governments use this information to allocate over $ 100 billion in federal funds annually for community programs and services including education, housing, health care, job training, and welfare. “The unquestioned mother lode of United States demographic data is the decennial Census, known officially as the Census of Population and Housing. The reason for this is simple: no one except the federal government could attempt to collect information about every man, woman, and child in the country on a systematic basis.” [Lavin, p. 3] But hardly ever is the basic question raised: Should this information be collected at all? Is there any justification for knowing how many people are in our society? The only reason for our rulers to collect this information is that it aids them in exerting control and power over us. They count what is to be controlled and manipulated. In short, the census is another tool in the government’s arsenal of conquest over us.

The census has always been and continues to be a political football in every country. The worst census story is that of Stalin’s 1937 Census in the Soviet Union. The famine and Great Purges of the 1930s left the Soviet population greatly reduced. “Because population totals from the Soviet Union’s 1937 Census would chillingly document the effect of this crushing oppression, Stalin suppressed the results and ordered census workers shot. Another census, containing significantly doctored data, was published in 1939.” [Lavin, p. 5] Another census story involves the government of Turkey, which in December 1997 concluded its latest quinquennial census. The entire population of Turkey was counted manually in one day over a 14 hour period. “Citizens were required to stay at home and be counted under threat of punishment if found in public without special permission.” [U.S.General Accounting Office, p. 24] Even in the United States the federal census has been used for political purposes. Draft boards often compare the number of males in certain age groups by census tract with its registration for the same area in order to detect how many men have not been registered. [Bohme and Pemberton, p. 13]

There is no question that the collection of data is an onerous and time-consuming task, but so are most jobs and services on the free market. How would population and other demographic statistics be gathered in a free society? First of all, that question assumes that some people think there is a need to collect them at all. So, assuming there is a sufficient demand for such information, it would be collected just like every other statistic is collected in a free society: by those willing to pay the price for the collection of the information – by those willing to voluntarily supply the information (either for a price or as a freebie) – and by those voluntarily doing the collection and compilation of the information. As we have seen, this was how the collection of demographic statistics started out in the early American republic. If some wished not to participate in the process, they would be no more penalized or criminalized than those who refused to buy General Motor products or Ford products. That is to say, they would not be punished at all, except as other participants in the market chose to shame or ostracize them for their non-participation. So until such time as the gathering of public statistics is organized in a free market fashion and while our coercive political governing institutions are responsible for the Census, I want nothing to do with the it or the census-taker. So please: Count Me Out!

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Short Bibliography

• Hyman Alterman, Counting People: The Census in History, New York: Harcourt, Brace & World, Inc., 1969.
• Margo J. Anderson, The American Census: A Social History, New Haven: Yale University Press, 1988.
• Frederick G. Bohme and George Dailey, “1990 Census: the 21st Count of ‘We The People’,” Social Education Volume 53, No. 7, November/December 1989, pp. 421-426.
• Frederick G. Bohme and David M. Pemberton, “Privacy and Confidentiality in the U.S. Census – A History,” Bureau of Census, 1991 and presented at the American Statistical Association annual meeting, August 18-22, 1991 in Atlanta, GA.
• James Bovard, “Honesty May Not Be Your Best Census Policy,” The Wall Street Journal, August 8, 1989, p. A10.
• “Census,” entry in Volume 3 of The New Encyclopaedia Britannica, Fifteen Edition, Chicago: 1992, pp. 22-23.
• Patricia Cline Cohen, A Calculating People: The Spread of Numeracy in Early America, Chicago: The University of Chicago Press, 1982.
• John Cummings, “Statistical Work of the Federal Government of the United States,” in John Koren (ed.), The History of Statistics, New York: the Macmillan Company, 1913.
• D. V. Glass, Numbering the People: The 18th-century Population Controversy and the Development of Census and Vital Statistics in Britain, Farnborough: Saxon House, 1973.
• Michael R. Lavin, Understanding the Census, Kenmore: Epoch Books, 1996.
• William E. Nelson and Robert C. Palmer, Liberty and Community: Constitution and Rights in the Early American Republic, New York: Oceana Publications, Inc., 1987.
• S. N. D. North, Director, A Century of Population Growth From The First Census of the United States to The Twelfth 1790-1900, Washington: Government Printing Office, 1909.
• Ann Herbert Scott, Census, U.S.A, New York: The Seabury Press, 1968.
• U.S. General Accounting Office, Decennial Census: Overview of Historical Census Issues, Washington: 1998, SuDoc No. GA1.13: GGD-98-103.

A Short Bibliographic Addendum to “Count Me Out!”

(Prepared June 2002 for Trademark of Totalitarianism) By Carl Watner

Although I refer to the census as “one of the tools in the government’s arsenal of conquest,” I failed to mention the horrible genocidal potential of national statistical systems. Evidence for this claim is found in the history of Nazi Germany (1933-1945), and, more recently, of Rwanda (1994). Two articles and one book stand out in the literature discussing the census and Nazi Germany. They are:

• Edwin Black, IBM and the Holocaust, (New York: Crown Publishers), 2001.
• David Martin Luebke and Sybil Milton, “Locating the Victim: An Overview of Census-Taking, Tabulation Technology, and Persecution in Nazi Germany,” 16 IEEE Annals of the History Computing, (1994), pp. 25-39. [For a contra point of view, see Friedrich W. Kistermann, “Locating the Victims: The Nonrole of Punched Card Technology and Census Work,” 19 IEEE Annals of the History of Computing, (1997), pp. 31-45.]
• William Seltzer, “Population Statistics, the Holocaust , and the Nuremberg Trials,” 24 Population and Development Review, (1998), pp. 511-552.

In his discussion of population statistics and the Holocaust, William Seltzer points out that “Most of the countries of Europe … had well developed national statistical systems … . The basic sources of population and related statistics in Europe … [pre-World War II] were population censuses, birth and death registration systems, administrative reporting systems under the jurisdiction of the education, labor, health, and similar ministries, and, in a few of the countries, population registers.” (p. 513) The Nazis undertook comprehensive censuses in 1933 and 1939, and as Luebke and Milton put it, “a strong continuity existed between the Nazi censuses and their predecessors” of 1925, 1910 and the earliest all-German census of 1871. (p. 26) The Reich Registration Law of January 6, 1938 required that all inhabitants of Germany (including foreigners) register and provide their local police with their domicile data. Failure to comply was punishable with six weeks imprisonment, and present-day Germans still have to do this. “The explicit purpose of resident registration was social control,” and this “enabled the government to keep tabs on the physical location of all Germans.” (Luebke, pp. 28-29)

Edwin Black’s book, IBM and the Holocaust, relates the history of punch card technology and censuses in the United States and Europe. Not only did the Nazis count people, in some of the conquered territories they undertook censuses of mules and horses. Unfortunately, there is no Index entry “Census” (only an entry for the “Census Bureau” of the United States. However, references to censuses in various European countries are found at pp. 139-141 (Austrian and German censuses), pp. 169-171 (German census of 1939), p. 194 (Polish horse and mule census of 1940), p. 197 (Czech census of 1939), p. 206 (Polish horse census), pp. 293-332 (an extensive discussion of the administrative and statistical apparatus in “France and Holland”), pp. 345-346 (the United States census of 1940 and the Census Bureau’s effort to assist in locating Japanese-Americans for internment), and p. 424 (the 1946 German occupation census: “People counting was what [IBM Germany] did best.”)

by Alvin Lowi
Number 101 – Dec 1999

I am keenly aware of my personal identity, a cherished gift from my parents. I would boast of my individuality as though it was a privilege were it not for the fact that all other people are similarly endowed. Yet, we are all different and in my case, I may celebrate my individuality more often than most. Thus, I have become known as an incorrigible individualist and I rather enjoy the distinction.

From my perspective, I observe a lot of anguish is being suffered among those people newly disillusioned over “the system,” its injustices and absurdities. To them I say beware of all public plans and policies! More specifically, be aware that the “public” is a fictional entity. The only real entities are individual persons. The “public” is merely and excuse for a gang of ambitious political adventurers and exploiters to ride herd over others. It is an illusion that figures into all “government” mischief. How such an illusion came to pass is a story no less clever than The Wizard of Oz and a lot more factual.

The history of politics and its notions of “government” leads me to the conclusion that all political government is naked conquest and politics is but a scheme to subvert self-government and monopolize all “government” in the hands of an elite few. Self-government consists of self-discipline, and politics simply takes its cues from this fact and constructs a paternalistic Leviathan of regimentation over all in outrageous mimicry of the self-governing individual parent. This politics does as if it had the legitimate authority.

I set aside the word “government” here in quotes to indicate that the political version of government is irrelevant to if not destructive of real government. Real government is self-government else there is no government whatsoever. Without self-government, which is natural, government degenerates into a bunch of rackets. While rackets are natural, too, just like cancer, smallpox, syphilis, and AIDS, they tend to produce anarchy (no rule) resulting in social atrophy. Without a modicum of self-rule, society contracts and humanity declines inasmuch as the world can support few people without the benefactions of social processes such as exchange and specialization. Who cares? Certainly not the rulers who, come what may, expect to survive on the loot they can forage from whatever humanity is left.

Although the contest between the individual victim and the political state that is out to conquer him seems most poignant and grossly unfair, I resist the urge to engage in reform activity. I am a naturalist when it comes to humanity and society. Thus, I regard politics as an epidemic disease. As I see it, “public” health can be improved only as individual competence, initiative, and prudence are perfected, practiced and spread throughout the population. These traits are not only essential for making a life worthwhile but they also provide resistance to political infection. I observe that all people still alive have some grasp on such traits so that an expectation that they will exercise them from time to time and to some extent is not too unrealistic, provided they are not deluded by false promises of protection without effort.

Clearly, some level of social life is continuing notwithstanding the insults and assaults of political government. Such continuity is attributable to a residuum of individual initiative and responsibility. Paradoxically, the state is depending on a continuation of the same thing.

Looking at the political disease from this perspective, I suppose the most virulent “public” infection is the state monopoly of “public education.” The compulsory, tax-supported institutions known mistakenly as “public schools” are where innocence, curiosity, critical thinking, and self-confidence are systematically stolen from the children in order to make them more docile subjects of the paternalistic system when and if they become adults. In the absence of educational alternatives that can effectively compete with the state’s compulsory regimen, the indoctrination and brainwashing inflicted thereby will continue resulting in a lasting intellectual injury for most children. From this viewpoint, gun-run schools are a better accouterment to the state than the armed forces, the police, or the prisons. The seemingly intractable problems of statecraft are readily understandable when the true mission of the “public schools” is comprehended. That mission is first and foremost the perpetuation of the state. Good citizenship (read obedience and loyalty to the nation, right or wrong) takes precedence over all mere learning. In this campaign, the teachers’ unions conspire with the bureaucrats to protect their exclusive franchise for the convenience of the state.

However, I am optimistic about the natural inclinations of people when they are sober, i.e., not intoxicated by illusion, delusion, bemusion, and confusion. I observe that in a strictly private and confidential encounter, most people who have no status in the system other than citizenship, will sober up for the duration of their seclusion. A few will remain so and live by the courage of their own convictions thereafter. How they may reconcile their intrinsic and indispensable selfhood as they grapple with their superstitions regarding citizenship is a curiosity for me and, no doubt, a concern for them.

It is well known that the banana that leaves the bunch is generally skinned and eaten. But what of a bunch of undifferentiated individuals? Their lives are not their own, which is contrary to their natures. In such a collective, normal, innocent human life becomes furtive, perhaps even subversive. Submerged in the collective, the individual is a guaranteed victim no less at risk of free-lance criminality than he would be as a solitary human. Apart from the collective, the naked individual human has a chance of survival in the presence of some feral Homo Sapiens. His chances improve in proportion to his prudence, knowledge, and skill. State protection is an utter illusion. Ask any of the multitude of its victims.

I belong to no group other than my family and humanity as a whole. This “membership” I inherited. Thus, politics has no relevance to any of my legitimate concerns. Therefore, there is nothing for me to Do with or about politics but to understand its pathological consequences, which persuades me toward studious abstention. I try to avoid letting my nose be counted in any political poll whatever lest I inadvertently sanction a continuation of the political process that threatens my existence.

While there is no way to avoid exposure to political propaganda, I rejoice in not being compelled to participate in plebiscitary activities. Reclaiming the time I would have otherwise spent at the polls agonizing over ridiculous choices among false alternatives leaves me time to study more significant phenomena and practice more fruitful activities.

For example, when I discovered that over 80% of the mass media menu consists of political hash, I found I could readily live on a no-hash diet. By excluding political hash from my diet, I awakened to find I was saving myself a lot of time and anguish. Substantially relieved of these constraints and burdens, I was able to attend to matters more [central] to my life, which greatly improved my sense of well-being. More and more, I was able to ignore irrelevant “information” and concentrate on more significant (for me) but less “newsworthy” data. It was a great comfort to discover I could make such judgments on my own recognizance without the benefit of journalistic “assistance.”

In France, the media is known as the “Fourth Estate,” and its is becoming recognized in this country as the fourth branch of government. No wonder, then, that the media thrives on the status quo or threats to it. Actually, it is the status quo that is the enemy of the people. So in a real sense, the mass media is a big part of the “government” problem. This explains my delight in discovering the internet phenomenon growing as a competing source of information, served up by and accessible to individuals without obligations to sources or regimentations of interest.

Inform yourself and speak your own mind!
You have nothing to lose but your chains.

by Harold Barclay
Number 97 – Apr 1999

Those who are used to living in a society governed by policemen and legal sanctions often fail to appreciate the significance of the sense of obligation to play the game as motivating force for social order even within their own society. We must not forget that in all human societies most members chose to follow rules because they want to and because they believe in them. They would resist any attempt to lead them into nonconformity. In any society, sanctions of whatever kind are for the tiny minority. Were all law enforcement to be removed tommorrow there would probably be an initial burst of crime, but after the novelty wore off it would dissipate. At the same time, the vast majority would not be involved, but would go about its business as usual. To hold, as some apparently do, that were the law to be removed there would occur some momentous explosion of brutish and murderous behavior among all the populace is, in the first place grossly to overestimate the present power of the police. More importantly, it is grossly to underestimate the years of conditioning about right and wrong to which all have been exposed and the power of the internalized censor or conscience.

In those cases where traditional techniques for social control have been removed suddenly, or greatly relaxed, two consequences are noteworthy. One is the extent to which voluntary mutual aid spontaneously appears and spreads – people begin helping each other. The other consequence is the opposite response – the one the ‘law and order’ supporters would predict. That is, there is rioting, looting and mayhem. But the reason for this reaction is not because there is no police to keep order. The reason is suggested by the kinds of people who engage in such behavior. The people are definitely not the members of society who have prospered from it, nor are they the ones in positions of prestige, power and influence. On the contrary, they are always from the ranks of the disadvantaged and frustrated. And the revolt – which is what it is – is an attempt at catharsis, to relieve pent up aggression and hostility generated by a system perceived to be oppressive (whether it is ‘in fact’ oppressive is beside the point; it is seen to be such and that is what counts).

It is an error to think of humans as ‘naturally’ good; it is equally erroneous to condemn them as monsters. And radicals, of all people, should appreciate the extent to which people are conformist.

Some criticize anarchy because its only cement is something of the order of moral obligation or voluntary cooperation. But democracy, too, ultimately works in part because of the same cement. And it works best where the cement is the strongest. That is, democracy ultimately does not operate only because of the presence of a police force. The free elections and two-party system could never survive if they depended upon the army and the police to enforce them. They survive because participants have a belief in the system and a feeling of obligation to play according to the rules. Hocart has said that government depends on “spontaneous and incessant goodwill. Without it governments would collapse.”

De la Boétie, Machiavelli and Spooner among others would add however, that in any system of government submission is induced by fear and fraud. In The Politics Of Obedience: The Discourse Of Voluntary Servitude Étienne de la Boétie devotes himself entirely to the question of why people submit to rulers. He makes the following points:

1. People submit because they are born serfs and are reared as such.
2. People are tricked into servitude by the provision of feasts and circuses by their masters and because they are mystified by ritual practices and religious dogmas which aim to hide the vileness of rulers, imbue reverence and adoration as well as servility.
3. The ‘mainspring’ of domination is not physical force so much as it is chain effect: the ruler has five or six who are his confidants and under his control; they in turn control 600 and these in their turn control 6,000. “The consequences of all this is fatal indeed. And whoever is pleased to unwind the skein will observe that not the six thousand but a hundred thousand, and even millions, cling to the tyrant by this cord to which they are tied. According to Homer, Jupiter boasts of being able to draw to himself all the gods when he pulls a chain.”

Also suggestive of why people obey is Lysander Spooner’s classification of “ostensible supporters of a constitution”: knaves, dupes and those who see the evil of government but do not know how to get rid of it or do not wish to gamble their personal interests in attempting to do so.

In anarchy there is no such delusion for there is a priority placed upon individual freedom which is absent in democracy. Democracy – granted its concern for liberty and individualism – nevertheless like any other system of rule, puts its ultimate priority in the preservation of the state. When in a democracy one group threatens to withdraw – to secede – there is always the final recourse to a ‘war measures’ act to compel compliance and suppress ‘rebellion’. To summarize, order in the anarchic polity, is founded in diffuse sanctions. It is maintained through self-help, self-regulation and self-restraint and these devices are channeled by fear as well as by the motivation to make the system work and to play the game with a minimum of friction.
— Harold Barclay, People Without Government (1982, pp. 116 – 117).

by Carl Watner
Number 94 – Oct 1998

For almost a year now, I have had the idea of publishing an anthology containing the best articles from the first 100 issues of The Voluntaryist. I have mentioned it to a number of friends and long-time subscribers, and each one has thought it a worthwhile idea. Tentatively the anthology will consist of articles categorized into the following topics: Statement of Purpose; Voting, Strategy, and Non-violent; Personal; Voluntaryist Solutions to social and Economic Problems of the Past; Robert LeFevre – Freedom School; Money and Economics; Voluntaryist Critiques of Government; Book Reviews: Schooling and Children; Anarcho-Capitalism; Miscellaneous; a complete Table of Contents for the first 100 issues; and possibly a Topical Index.

The beauty of the anthology is that the most important and significant articles appearing in The Voluntaryist over the last sixteen years would be bound together in one volume. This collection would be unique in may ways. First of all, there is no other body of literature that embraces the methods and strategy of The Voluntaryist. Voluntaryists are the only ones who reject electoral politics and voting – on the grounds that such activities support the legitimacy of the State. Whether you embrace nonviolent strategies on moral or practical grounds, the ideas of Thoreau, Gandhi, And Robert LeFevre certainly offer an alternative to “politics as usual.” The historical articles that have appeared in The Voluntaryist deal mostly with examples of how people have lived without the State at various times in history. Many of the critiques of the American government can be found nowhere else, because few libertarians have analysed the legitimacy of American government. Another reason that the anthology will be unique is that over time, as editor of The Voluntaryist, I have tried to choose and publish classic essays in voluntaryist thought. Many of these, such as John Pugsley’s “The Case Against T-Bills and Other Thoughts on Theft,” Harry Browne’s “A Visit to Rhinegold,” and Randy Barnett’s “Pursuing Justice in a Free Society,” will be preserved in this anthology. In book form those ideas will be more usable and accessible to individuals than in the single issue format in which they originally appeared. In short, I believe the anthology is a valuable expenditure of time and money.

Readers may be familiar with similar publishing projects that I have engaged in over the years. Both A Voluntary Political Government: Letters from Charles Lane, and Truth is not a Half-Way Place: A biography of Robert LeFevre were self-published with assistance of friends and subscribers. My hope is to repeat these efforts by raising enough money to typeset and print The Voluntaryist anthology. Unfortunately, most of the articles have not been saved on disk, so they must be scanned or re- typed. Perhaps, a small commercial publishing house might be found to print and market the book. Failing that, my intention would be to self-publish the book, market it to libraries, individual subscribers, and libertarian booksellers. From this vantage point, it is impossible to know the total amount needed, but from past experience I estimate costs for both typesetting and printing to be in the range of US $3000 to US $5000, depending on the number of copies actually printed.

If you are interested in this project, please support it by sending a donation. Those who contribute U$50 or more will receive an autographed copy of the finished book, at no further cost to them. If any funds are left over they will be used, pro rata, to extend the subscriptions of those making donations. Those wanting to see the titles of articles chosen for the anthology, may obtain the complete list by sending US $2 cash and a No. 10 self-addressed envelope. Input from readers and subscribers is certainly welcome.

by Carl Watner
Number 94 – Oct 1998

Government protection (alleged) of property rights is one of those political myths which our government uses quite effectively to legitimize its conquest over us. In reality, governments can only negate property rights, not protect them. This is true for a number of reasons, both theoretical and historical. First of all, governments have historically derived their revenues from taxation. This necessarily violates the rights of those who would not voluntarily support them. If those people do not willingly surrender some of their property to the government in the form of taxes, government agents will ultimately either seize their property or imprison them for willful evasion. Secondly, all governments presume to establish a compulsory monopoly of defense (police, courts, law) services over a given geographical area. Individual property owners who do not wish to be included are “protected” nonetheless. If they resist the enforcement of government laws, they will eventually be jailed for obstruction of governmental administration of justice, or killed for resisting armed government officers.

One of the primary ways that local governments in the United States exercise their sovereignty is by the collection of real property taxes assessed against real estate located within their geo-political boundaries. (The ENCYCLOPEDIA BRITANNICA [1992] reports that “Property tax receipts supplied about half of the revenue raised by local governments in the United States.”) It is immaterial to the collection of the tax whether the landowner resides within or without the sovereign domain of that political jurisdiction. The reason for this is that the political unit maintains the right to seize and legally re-title the property for failure to pay the tax. In other words, if ownership is described as the right of final authority and control over a given piece of property, the landowner, so-called, is not really the owner. That piece of property “belongs” to the landowner only if the real estate tax is paid in a timely manner. One might have termed this “tribute” during the Middle Ages, or “land rent” during the 18th Century. However, in our contemporary world of political euphemisms, the person paying the rent is called the “owner” and the agency collection it is referred to as a “government”. The point is that the person, organization, or institution collecting the “tribute” or “rent” is the real owner.

Land taxes are probably the oldest form of taxation. They were found in China as early as 2000 B.C. Real estate taxes are probably the most fail-safe method of taxation because they are difficult to evade and the land itself cannot be physically moved from one jurisdiction to another. If the owner of the land refuses to pay the tax, the land can be seized by the governing authority and sold for back taxes. Common usage and ancient custom cannot disguise the fact that tax seizures and auctions amount to nothing less than robbery and outright confiscation, even if conducted under the cloak of the law. Real estate tax auctions happen regularly all over the United States, and landowners generally do not resist the legal processes involved. (They recognize the futility.) The main purpose of this article is to describe what happens when a stubborn taxpayer resists the payment of land taxes and is willing to suffer financial losses, personal imprisonment, and evicton for failure to voluntarily cooperate with the local government’s effort to regain control over that landowner’s property.

Long-time readers of The Voluntaryist will recall an article about the Embassy of Heaven Church that appeared in Whole No. 68, entitled “Un-Licensed – Un-Numbered – Un-Taxed.” The early part of that article mentioned a proclamation of land use issued in 1987 by Paul Revere, pastor of the church. In that document, Revere announced that the Church’s property had “been removed from the ownership and control of the world and rulers of men,” and that the church intended to stop paying property taxes on the real estate it used and owned. In 1988, Revere and his wife officially deeded the 34 acres they owned to the Embassy of Heaven Church. In August 1990, as pastor of the church, he filed a statement declaring that the Church’s land is exempt from Marion County real property tax. This was done in accord with Section 307.162 of the Oregon Code of laws which reads: “Necessity of filing statement to secure exemption. Before any real property may be exempted from taxation … the institution … claiming the exemption shall file with the county assessor … a statement verified by … oath or affirmation … listing all real property claimed to be exempt, and showing the purpose for which such property is used….” At that point, Revere acted as though he and the Church were “un-taxed” and paid no further monies to Marion County. Unfortunately, the State didn’t see it his way.

The story of the subsequent “showdown” at Sublimity, Oregon demonstrates the nature of the State. If the owner of a parcel of land refuses to pay the tax, for whatever reason, the county must initiate foreclosure proceedings to collect its back taxes. In effect, the county sues the property owner for the amount due, and upon failure of the property owner to pay, the county sheriff seizes the property and evicts any dwellers. In Oregon, a state court orders that a provisional deed be registered in the name of the county, and the original owner is given a two year redemption period, during which the back taxes and penalties may be paid and the land returned to its original ownership. Upon the expiration of the two year period, the county, as new owner, may use the land, sell it, or do with it as it pleases. If the land is sold, all proceeds – even if in excess of the amount of back taxes – are kept by the county.

Generally speaking, this legal scenario was followed in the case of the Embassy of Heaven Church. The Assessor of Marion County denied the Church’s request for an exemption from property tax on September 17, 1990. Four years later, in October 1994, a “Judgment and Decree and Order of the Circuit Court of the State of Oregon” was issued by which the Embassy of Heaven property was sold to Marion County, subject to a redemption period of two years. In accord with that judicial decree, on November 7, 1996 the Marion County Tax Collector deeded the Church’s property to Marion County. A week after that, the Revere’s were notified by the County that they had thirty days to remove themselves and all personal possessions from the property.

What was the Church’s reaction to all is hocus pocus? First of all, back in 1990, after the exemption was denied, Paul Revere tried to get the County to explain the reasons for the denial. A full explanation was never forthcoming, except to the extent that the County insisted the Church must have its tax-exempt status formally recognized by the federal Internal Revenue Service before the County would consider a local property tax exemption. Since the Embassy of Heaven was a non-state, or common law, church (one not incorporated by government at any level) Revere refused to concede this was necessary. As far as he and the Church were concerned, he had filed the statement for the exemption. There was nothing in the Oregon law that gave Marion County the authority to deny that statement. When the County sent tax bills in 1991 and later years, Revere returned the bills to the County claiming a church exemption. Revere had no judicial notice in 1994, when the property was formally deeded to Marion County. Neither the Circuit Court nor the public attorney appointed by the Court to represent the Church ever contacted Revere to tell him what was happening.

Finally, on January 31, 1997 the County’s patience ended. The Church property was raided and seized. At least 30 (some say as many as 100) federal, state, and county officers, supported by two armored vehicles, raided the property and evicted the residents. Revere and two other men were arrested for refusing to leave. (Officially they were charged with “obstruction governmental administration”, and were released after five days in jail when the charges were discontinued.) All the personal property belonging to the Church and those living on the land was confiscated and placed in storage. This included nine Church vehicles. State of Oregon Children Service Division personnel were on hand to remove the pastor’s two daughters, ages 14 and 17, to institutional placement. However, this was unnecessary as they remained in the custody of his wife, Rachel. In addition, about $15,000 worth of silver coins, which had been donated to the Church, were seized by the Internal Revenue Service at the time of the raid. Ultimately, the vehicles and other personal property were returned to Revere; the coins were auctioned off in March 1997 by the IRS for $11,667. The proceeds went to partially satisfy a federal tax lien against Revere, which the IRS had put in place in 1991 for the years 1983, 1984, and 1986, for which Revere had filed no returns.

The 34 acres were auctioned off at the county courthouse in Salem, Oregon on May 23, 1997. The only (and successful) bidder was Mr. J. D. Bruce of Sublimity, who bought the property for $119,000. The County claimed a debt of $16,412 against the property, but according to State law it was permitted to keep the excess generated by the auction. Revere and supporters of the Embassy of Heaven Church garnered a great deal of local publicity over the injustice perpetrated by the County upon the Church, and were successful in persuading most potential bidders to shun the auction. It is Revere’s position that the County violated its own laws in foreclosing on and selling the property. A purchaser could only buy whatever interest the County had in the property; and since the County did not have the option to reject the statement of tax exemption and never notified the Church of the end of the two year redemption period, it had no real legal interest in the property and could convey nothing to the new buyer. The County’s position is to let the title companies sort things out, if and when subsequent buyers seek title insurance.

Since the Embassy of Heaven Church began in the mid-1980’s, Revere has preached nonviolence, avoided lawsuits, and lost all confidence in the justice of the courts. He certainly does not plan to sue the County. Instead, he hopes to continue in possession of the land by erecting signs and placing several church members back on the land to establish an office. Though these people may go to jail for tresspassing, Revere hopes to use their imprisonment as a way to publicly highlight the illegal and unlawful seizure of the Church’s property.

Many public commentators have pointed out the parallels between the raid on the Church’s property and government raids at Ruby Ridge, Idaho and Waco, Texas. Although on one was killed at Sublimity and neither of these earlier attacks involved non-payment of taxes, all three were similar in that the governments involved used massive amounts of physical force and military armaments to subdue uncooperative subjects. Revere, and others, have raised certain Church vs. State issues, such as whether or not the State can pick and choose which religions it will recognize and exempt from taxes. This, however, begs the question. The main issue is whether or not governments should have the right and power to tax anyone, much less churches.

The real tragedy at Sublimity is that no writer or participant has challenged the right of the State to collect taxes. As I pointed out in my article on “The Tragedy of Political Government” (Whole No. 79), the main problem is that few people realize government is an immoral and impractical institution. Most people have been conditioned – via public schooling – to accept government as a natural part of their environment. Therefore they never question the legitimacy of taxation.. The purpose of this article, indeed of the whole Voluntaryist enterprise, is to challenge the legitimacy of the State and activities, such as taxation, which support the State. Taxation is theft, regardless of what the government calls it. The real challenge to voluntaryists – if further tragedies like those at Sublimity are to be avoided – is that more and more people must be educated to understand the nature of the State and taxation. “Challenge or Tragedy” – which shall it be?

by Carl Watner
Number 93 – Aug 1998

As I compose this article, I have only a few more issues of The Voluntaryist to write and publish before I reach No. 100. Once completed, that effort will have spanned nearly seventeen years of my life. During that time I have been imprisoned for forty days on a federal civil contempt charge (1982); married Julie (1986); witnessed the homebirths of our four children; operated two businesses here in South Carolina (one of them a feed mill, I have been running since my marriage; the other, a retail tire store and service center I took over in early 1997); have been responsible for the building of our family’s house; and participate in the homeschooling of all our children. Although The Voluntaryist has been an important and constant part of my life all this time, the first article that I wrote and published preceded The Voluntaryist by nearly a decade. It was “Lysander Spooner: Libertarian Pioneer” and appeared in Reason Magazine in March 1973.

As I reflect upon my writing career. I recall one of my very first self-published monographs – Towards A Theory of Proprietary Justice. In it there was a piece titled “Let It Not Be Said That I Did Not Speak Out!”. There is obviously something in my mental-spiritual-physical constitution that needs a publishing outlet. It is important to me to set forth my ideas, especially when they are so very different from the vast majority of people that I associate with most of the time. If everyone seems to be heading toward a precipice, they need to be warned. If I am pushed and shoved along with them, even if I am powerless to stop the crowd, it is important to me and my integrity that some record be left of my resistance and of my recognition that we are headed toward danger. “Let It Not Be Said That I Did Not Speak Out!” was published in 1976, and appears now in the pages of The Voluntaryist for the first time:

When the individuals living under the jurisdiction of the United States Government awake to political reality, they are going to find themselves living in government bondage. Every act of government brings us closer to this reality. The only logical future is to expect life in a socialized state. Henceforth, to be a citizen will mean to be a slave.

To speak the truth without fear is the only resistance I am bound to display. To disseminate without reserve all the principles with which I am acquainted and to do so on every occasion with the most persevering constancy, so that my acquiescence to injustice will not be assumed, is my self-assumed obligation.

The honest among us realize that the resort to coercion is a tacit confession of imbecility. If he who employs force against me could mold me to his purposes by argument, no doubt he would.

The alternative is then simply living by the libertarian principle that no person or group of people is entitled to resort to violence or its threat in order to achieve their ends. This means that everyone, regardless of their position in the world, who is desirous of implementing their ideas must rely solely on voluntary persuasion and not on force or its threat.

Individuals make the world go round; individuals and only individuals exist. No man has any duty towards his fellow men except to refrain from the initiation of violence. Nothing is due a man in strict justice but what is his own. To live honestly is to hurt no one and to give to every one his due.

. . . Justice will not come to reign unless those who care for its coming are prepared to insist upon its value and have the courage to speak out against what they know to be wrong.

Let it not be said that I did not speak out against tyranny!

As much as any other piece I have ever written, it probably best explains why I have devoted so much time to The Voluntaryist over the years. There is an episode in Ayn Rand’s Anthem in which the protagonist, Equality 7-2521, discovers a room full of books, someone’s personal library, that had escaped the book-burning that undoubtedly had accompanied the creation of the collectivist holocaust in which he lived. It was among these books that he rediscovered the word “I” which had disappeared from the current lexicon. My hope is that The Voluntaryist message – that a non-violent and stateless society is both moral and practical – will survive, just like the books that Equality found. Hopefully, if someone in the future finds copies of The Voluntaryist newsletter or the anthology that I am proposing to publish (see accompanying article) they will help to re-kindle, re-discover, or elaborate the ideal of a totally free market society. One doesn’t need to be a pessimist to see that those ideas might one day disappear. Even in our own time, only a small part of the population enbraces libertarian ideas; and only a small number of libertarians would consider themselves voluntaryists – people who reject voting and the legitimacy of the State. Even the individualism of several centuries of American history is in danger of being obliterated by State propaganda. With luck, The Voluntaryist will play some small part in preserving a record of those times in history when men were free to act without State interference, and were self-confident enough to know that the State possesses no magical powers.

May knowledge and wisdom come to those who read The Voluntaryist. Long live voluntaryist ideas.

by Anonymous
Number 87 – Aug 1997

In Chinese philosophy, two principles, one negative and dark (yin), and one positive and bright (yang), interact to influence the destinies of creatures and things. The computer is certainly not immune to these forces that we Americans sometimes refer to as a double-edged sword. The unique technology of the computer enables it be used not only to improve the quality of life and our standard of living, but as a very effective tool that can be used by government to oppress and terrorize us into submission.

On the one hand computers enable this author to write with unparalleled speed, accuracy and convenience. The computer enables me to connect to the internet and read what someone in England or Russia may have written 10 minutes ago, instead of buying a magazine and reading the same article months after it was written. Because of the computer I am able to send electronic mail to someone who may be half-way around the world and it will be delivered to them in a matter of minutes, when it would normally take government postal services a number of days or even weeks to do the same thing. And of course, point-of-sale or point-of-shipment systems allow businesses to be more efficient by immediately knowing what they are selling for inventory or accounting purposes.

But on the other hand, the inherent aspect of the computer which allows for this inexpensive acquisition, processing, storage and retrieval of information is why government in the United States has a greater ability to control people than any other government has had in the history of the world. And government isn’t the only culprit in using the computer to compile information on us. Private industry doesn’t just use the power of the computer to make sure you don’t run out of soap and Jell-O at your local market, but also to track your monetary status and your buying and spending patterns to know what advertising mailer to send you next.

It is disturbing that few of these invasions of privacy are explicitly consensual. The mere act of living in our society makes one’s every movement subject to being recorded and catalogued by someone somewhere for future reference. The computerization of America provides dramatic evidence of perhaps the greatest attitudinal shift that has occurred in any society in history. In just several generations, the concept of personal privacy has gone from being a valued ideal, to one where anyone who desires privacy today is almost immediately considered to be a suspicious person. A television documentary shown a couple of years ago demonstrated how much can be learned about any one of us in a matter of hours. A reporter wrote down the license plate number of a car picked at random driving on the freeway. Within twenty four hours the reporter had found the name of the woman driving the car, as well as the name of her husband and children. He had also found out where she lives, works, what bank she uses and how much money she makes at her job. He also learned what college she’d graduated from and how much is owed on her family’s house, as well as much more. All of this information was obtained from readily available public computer databases – not secret government files.

Computers are certainly not alone in this duality of use, because literally every creation of the human mind can be used for purposes of enhancing life or destroying it. For example, picks and shovels can be used to dig a basement, but they are very labor intensive. By contrast, explosives are very labor efficient. In less time, a couple of people with dynamite can duplicate the chaos and destruction that it would take hundreds or thousands of people swinging picks and shovels to do. And of course, nuclear weapons are the ultimate expression of this contrast in efficient destruction versus inefficient destruction.

By the same token, because the computer can be deployed in a relatively efficient way, it is much more invasive of people’s privacy than, for example, the paper file method that was used in Nazi Germany to keep track of personal information about people. Would it have been possible to hide large numbers of people in attics or cellars for years if the Nazis had the computer technology that is available to the U.S. government today? It is highly unlikely considering that computers monitor the water, electricity, and gas used at houses, and it is not uncommon for utility companies to notify law enforcement agencies of abnormal usage. Additionally, the government has virtually unbridled access to all your bank, credit card, and investment accounts as well as such things as your phone records. There are so many computerized red flags that could be set off that it would be extraordinarily difficult to conceal people in the United States the way they were in Nazi-occupied countries during World War II.

Tyrants of the past would be green with envy for the way in which computers facilitate the monitoring of almost our every move. In 1981, I told a skeptical friend that the computer was the greatest threat to freedom ever created. The computer destroys privacy, and without privacy, what freedom is there except in one’s mind? George Orwell drove this point home with a sledge hammer in his book “1984.” Id like to review just a few of the news items I’ve seen in the past few months for a reality check on how valid my observation of 15 years ago was.
The first article of note appeared in October 1995 issue of AMERICAN HERITAGE magazine and detailed how the Defense Department, through the Air Force, spent many millions financing the development of the internet. The Defense Department needed to develop a means of communication that wouldn’t be disabled during a nuclear war, when all conventional means of communication (radio and telephone) could be rendered useless by direct physical destruction and atmospheric electromagnetic interference. The internet is not a product of the free market, it solely owes its existence to the desire of the Defense Department to make nuclear war a practical alternative to conventional warfare. In a twist of the norm for government-funded projects, the U.S. government is apparently getting something of real value in return for financing the creation of the internet. According to the February 1996 issue of BOARDWATCH Magazine, over 90% of all U.S. defense related information traffic is presently carried over the internet.
The second article (“Wisecrackers”) appeared in the March 1996 issue of WIRED MAGAZINE. It details how wise the words of Edgar Allan Poe (the poet and amateur cryptographer) were when he wrote, “It may roundly be asserted that human ingenuity cannot concoct a cipher which human ingenuity cannot resolve.” The relative ineffectiveness of computer security systems is obvious by the number of cases where hackers have broken into not just top secret government computers, but the computer systems of large private companies (like the phone company) who have the resources to employ the best and brightest computer security experts. In the article, Phil Zimmermann, who wrote the world’s most widely used computer encryption program, PGP (Pretty Good Privacy), admits that PGP is vulnerable to being cracked. The editor of BOARDWATCH Magazine, Jack Rickard, has suggested not putting faith in any encryption program to protect your privacy. At some point, perhaps even right now, the government will be able to read any encrypted electronic mail message as easily as you’re reading this.
The third article was in a COMPUTER BITS magazine and reported that the U.S. Energy Department is paying Intel $45 million to develop a computer that is 10 times faster than any existing computer. The official purpose of the computer is to simulate the effects of a nuclear war in real time. This computer will be capable of making 1.8 trillion computations per second, which is the equivalent computing power of 90,000 Pentium computers. When this computer isn’t playing war games there is nothing to prevent it from being used to crack previously unbreakable encryption codes (see above).
The fourth article was in the January 1996 issue of DISCOVER magazine. It is about how the Defense Department, through the Army, is financing the development of computer technology that can recognize faces. [Note: See the movie – The Fifth Element] The recognition technology currently has a 98% success rate, so it is far beyond the experimental stage. The Defense Department originally wanted to develop the software for security purposes (the software works by separating a face into hundreds of zones, so it is highly successful at detecting disguises and plastic surgery, since they might only change a small part of a face) and they intend to share it with government law enforcement agencies. This is one of the most terrifying developments imaginable. The government plans to have a national database of faces to which every law enforcement agency in the U.S. will have access. This database could be used when you apply for a driver’s license. Your photo would be checked to see if you had a license in any other state, and whether you are in fact who you claim to be. The same could be done when you apply for a passport. Private companies want this technology for their own identification purposes. Stores could have cameras set up so that everyone coming into a store would be photographed and their image would be compared to a database of known shoplifters or people known for credit card fraud.
The fifth item is the U.S. Postal Service’s campaign to have jurisdiction over computer electronic mail sent within, into, or out of the United States. News items about this have appeared in newspapers and computer magazines. Officially, they want this power to be able to monitor obscene material (such as kiddie porn) that might be transmitted electronically, just as they now have that power over things sent through the mail. In reality, I think they want to have theirjurisdiction for postal crimes expanded to cover electronic mail, just as it already covers telegrams and wire transfers of money. It is not widely known, but many people have been and are currently being prosecuted for violating postal statutes, and nothing else. For example, Don King, the boxing promoter, recently had a mistrial declared in his prosecution for violating postal statues. He was accused of fraud related to a wire transfer of money.
The sixth article, “Government Access – The National Wiretap System”, appeared in the February 1996 issue of BOARDWATCH Magazine and detailed how federal legislation has been passed that, if implemented, will create a National Wiretap System. “The Communications Assistance for Law Enforcement Act” passed on October 7, 1994 makes it mandatory for telephone companies to provide government access to all telephone transmissions in the United States under threat of a civil penalty of $10,000 per day for non-compliance. The only thing preventing the implementation of this “Act” is the $500 million dollars that the government is mandated to pay the telephone companies for installation of the necessary equipment.

Under the “Act” the government would have the capability of simultaneously monitoring 1% of the total engineered telephone capacity for metropolitan areas in the United States! What this means is that at certain times of low phone usage (such as from midnight to 6 A.M.), the government would have the capability to monitor literally every phone conversation in the United States at the same time! This could be done in the same way that the NSA now monitors calls into and out of the United States. Computer equipment is set to “listen” for key words and when these key words are used in a conversation, recording equipment is activated. And who would be allowed to engage in this snooping To quote from the article:

“CALEA” says “government … means the government of the United States and any agency or instrumentality thereof,… and any State or political subdivision thereof authorized by law to conduct electronic surveillance…. This wiretap system ain’t just for elite federal troops. It’s for local cops (LAPD comes to mind), rural constables, politicized sheriffs, zealous prosecutors and all local and state agencies with any electronic surveillance authority-as well as the IRS, INS, ATF, FBI, CIA, DIA and … DEA. Hell, even most park rangers could use it legally!”

The seventh article, “Cyberworld Monitor – We have found the enemy! And, it is us!” also appeared in the February 1996 issue of BOARDWATCH Magazine and explains how the Department of Defense has established a Director of “Information Warfare” and is actively pursuing the creation of an “Information Corps.” The Information Corps would be an elite military force developed to mastermind information attacks and countermeasures. Under the cloak of national security initiatives, this group would act not only to defend our borders against alien attacks of aggression, but also to protect the nation’s Government from its own citizens.
The eighth item is the widely reported attack federal and state governments are making on free speech over the internet (given the military’s reliance on the internet, the Federal government probably doesn’t even need an act of Congress to impose controls; they can do so by indiscriminate fiat through the catch all of “National Security”).
The ninth item is that the IRS’s national computer system is scheduled to go online within the next couple of years. This system will enable IRS personnel anywhere in the United States to have instantaneous access to all information that the IRS has on each and every one of us.

Taken as a whole, these few news items are almost mind-numbing and they are only the tip of the iceberg. It is sobering to consider that the government couldn’t be doing any of these things without the aid of the computer. My worst fears and more have already been realized. The ability of the computer to process vast amounts of information is every petty bureaucrat’s and would-be ruler’s dream come true.

However, the government’s exploitation of computer technology doesn’t mean there is reason for unnecessary despair. Although there will always be people who work to enslave the body, mind, and soul of those who seek to carry forth the uniqueness of the human spirit, the “spark of life’ – that desire for human freedom and individuality – is difficult to extinguish. SPARTACUS, the book by Howard Fast (upon which the movie was based), illustrates that even in imperial Rome, men who were born into slavery (and whose ancestors had been slaves for several generations) still had the unquenchable desire to be free of the shackles of tyranny. The slave revolts, designated by historians as the Servile Wars, continued for over a hundred years.

The governments of the world may use the computer (or even some new invention or technology) to monitor, track, and otherwise attempt to suppress the “fire of human individuality.” But they are doomed to fail as long as that fire burns within at least one man and one woman who wittingly or unwittingly pass it along to their offspring.
[Voluntaryist Editor’s Note: This article was submitted by an anonymous contributor. While editing it for publication, I read portions of Jerry Mander’s book, IN THE ABSENCE OF THE SACRED: The Failure of Technology and the Survival of the Indian Nations (1991). Mander makes the point that technology is not neutral. Modern-era computers were developed by the British and American military during World War II to make their killing more efficient. “The U.S. military continues to be the largest single financial source for computer science research in the world. … One could argue that the recent consumerization of the computer is merely a glamorization, to help create public” acceptance of computer technology, “when (government and) military use of computers is really the point.” (p. 74) If the use of computers had been pioneered by private industry, rather than the military, then one might be able to argue that computers were not tainted by their origin in the militarism of the State.]

by Wendy McElroy
Number 85 – Apr 1997

At the last Liberty Conference, an intellectual brawl erupted during a panel discussion on terrorism. Since I consider electoral politics the milquetoast equivalent of terrorism, my opening statement was a condemnation of voting. My arguments were aimed at libertarians who consider themselves anarchists yet jump to their feet in ebullient applause upon hearing that a fellow libertarian wants to be a politician. In the two raucous hours that ensued, a question was posed: “If you could have cast the deciding vote against Hitler, would you have done so?” I replied, “No, but I would have no moral objection to putting a bullet through his skull.” In essence, I adopted a stronger line – a “plumbline,” as Benjamin Tucker phrased it – on eliminating the Hitler threat.

I consider such a bullet to be an act of self-defense in a manner that a ballot could never be. A bullet can be narrowly aimed at a deserving target; a ballot attacks innocent third parties who must endure the consequences of the politician I have assisted into a position of power over their lives. Whoever puts a man into a position of unjust power – that is, a position of political power – must share responsibility for every right he violates thereafter.

The question then shifted: “If there had been no other strategies possible, would you have voted against Hitler?” This postulated a fantasy world which canceled out one of the basic realities of existence: the constant presence of alternatives. In essence, the question became, “If the fabric of reality were rewoven into a different pattern, would you still take the same moral stand?” Since my morals are derived from my views about reality, it was not possible for me to answer this question. But my first response was to wonder what I would have been doing for the months and years that led to the momentous dilemma of whether to scratch an X beside Adolfs name. Or did I have no alternatives then either?

I can address only the reality in which I live and, in a world replete with alternatives, I would not vote for or against Hitler. Let me address a more fundamental question: What is the nature of the state? According to Max Weber, a state is an institution that claims a monopoly of force over a geographical area. It is a form of institutionalized power, and the first step in dissecting its essence is to analyze the defining terms “power” and “institution.”

Albert Jay Nock wrote of two sorts of power: social and state. By social power, he meant the amount of freedom individuals actually exercise over their lives – that is, the extent to which they can freely make such choices as where and how to live. By state power, he meant the actual amount of control the government exercises over its subjects’ lives – that is, the extent to which it determines such choices as where and how people live. There is an inverse and antagonistic relationship between social and state power. One expands only at the expense of the other.

I stress the word “actual” because the power of the state does not rest on its size – the number of laws on the books or the extent of the territory it claims. A state’s power rests on social conditions, such as whether people will obey its laws and how many resources it can command to enforce obedience. A key social condition is how legitimate the state is seen to be. For without the veil of legitimate authority, the people will not obey the state, and it will not long command the resources, such as taxes and manpower, that it needs to live.

In other words, freedom does not depend so much on repealing laws as weakening the state’s authority. It does not depend – as political strategists expediently claim on persuading enough people to vote “properly” so that libertarians can occupy seats of political power and roll back legislation. Unfortunately, this process strengthens the institutional framework that produced the unjust laws in the first place: it strengthens the structure of state power by accepting its authority as a tool of change. But state authority can never strengthen social power.

This brings up the issue of institutional analysis. People apply the word “institution” to such wide-ranging concepts as “the family,” “the free market,” “the church,” and “the state.” An institution is any stable and widely-accepted mechanism for achieving social and political goals. To a great extent, these institutions function independently of the good or bad intentions of those who use them. For example, as long as everyone respects the rules of the free market, it functions as a mechanism of exchange. The same is true of the state. As long as everyone respects its rules – voting, going through state channels, obeying the law – it functions as a mechanism of social control.

F.A. Hayek popularized the notion of unintended consequences, observing that conscious acts often produce unforeseen results. This explains why good men who act through bad institutions will produce bad results. Good men acting through the state will strengthen its legitimacy and its institutional framework. They will weaken social power. Ultimately, whether or not they repeal any particular law becomes as irrelevant to producing freedom as their intentions.

So, returning to the question of voting for Hitler: purely for the sake of argument, I’ll grant the possibility that I could morally cast a ballot. Yet even then, I would still refuse to vote against him. Why? Because the essential problem is not Hitler, but the institutional framework that allows a Hitler to grasp a monopoly on power. Without the state to back him up and an election to give him legitimized power, Hitler would have been, at most, the leader of some ragged thugs who mugged people in back alleys. Voting for or against Hitler would only strengthen the institutional framework that produced him – a framework that would produce another of his ilk in two seconds. Killing Hitler does less damage. But it – like voting – is an admission of utter defeat. Resorting to brute force means that all avenues of social power have been destroyed and I have been reduced to adopting the tactics of the state. Under tyranny, such violence might be justified as long as I could avoid harming innocent third parties. In these circumstances, however, voting could not be justified, because there is a third party. No one has the right to place one human being in a position of political power over another. A consistent libertarian can never authorize one human being to tax and control peaceful activities. And the state is no more than the institutionalized embodiment of this authorization.

You cannot help freedom or social power by bowing your head to Leviathan.

[Reprinted with permission from the May 1996 issue of Liberty Copyright 1996, Liberty Foundation, Box 1181, Port Townsend WA 98368. $4.00 per issue.]

Also see Wendy McElroy’s complete index to Benjamin Tucker’s Liberty preserved in The Memory Hole

by Carl Watner
Number 85 – Apr 1997

Opening a recent Laissez Faire Book catalog, I found two diametrically opposed headlines on face-to-face book reviews: “Ridicules the mystique of government,” and “A libertarian manifesto for political action.” The first book surveyed was the revised, second edition of Sy Leon’s None of the Above, originally subtitled “The Lesser of Two Evils … Is Evil,” (and now with a new subtitle – “Why Non-Voters Are America’s Political Majority”). The call to electoral politics was Harry Browne’s Why Government Doesn’t Work. Until a year or two ago, Harry Browne had counted himself among the anti-political libertarians refusing to associate themselves with electoral politics. In fact, he had written an introduction to the 1976 edition of None of the Above in which he stated:

[A] growing number of people … [have] deliberately decided that the voting process is the wrong approach to making social and economic decisions. These are the people who believe that it’s wrong for one person to exercise control (through voting or otherwise) over someone else’s life and property. [p. 8]

Now Harry Browne is campaigning for office, and trying to become President of “society’s dominant producer of coercion,” the United States federal government.

Why the sudden change of heart, Harry?

His wife of ten years, Pamela, suggested in 1992 that he run for President. Harry Browne says, “At first I thought the idea was absurd. But we talked about it for two years and in August 1994 I decided I should run. I have only one reason for running, a selfish motivation: I want to live in peace and freedom for my remaining 20-40 years.” [p. 214]

Oh, if Harry Browne had only heeded the advice in the new introduction to None of the Above! The introduction was excerpted from John Pugsley’s Open Letter, “Harry, Please, Don’t Run for President – An Argument In Defense of the Invisible Hand.” The letter was printed in No. 74 of The Voluntaryist (June 1995) and also appeared earlier in LIBERTY Magazine.

Let’s look at some of the alternatives to “politics as usual” that John Pugsley suggested in his Open Letter. Pugsley says we should distance ourselves as far as possible from the State. The vast majority of his ideas focus on exercising self-control, self-improvement, and relying on voluntary cooperation in our lives in order to accomplish our objectives. Among Pugsley’s constructive proposals we find: “create parallel mechanisms to replace government functions,” and “support private alternatives to government services.” There are also many activities that we can undertake to strip away the myth of government legitimacy. He urges us to master the issues, expose the enemy among us, get involved in campaigns to enlighten and enrage the public, engage in civil disobedience, pamphleteer, and to write free market novels and produce free market movies.

Essentially what John Pugsley told Harry Browne is that he should continue to honor the free market principles which he (Browne) has always preached and, until now, practiced. Harry Browne should well know that trying to achieve liberty by way of political action is like allowing the government to print money in order to achieve prosperity. It won’t work; and it’s not right to try. Not only are the means not adapted to the end (in the practical sense) but the morality of such an undertaking is dubious, to say the least. Not only is democratic majority rule a myth that our political rulers wish to sustain, but it depends upon the implicit use of force to impose the policies of the winners on the losers.

The primary reason why The Voluntaryist was begun was to offer support to the alternatives to electoral politics and to provide a counterpoint to libertarians who urged us to “get out and vote to support ‘our’ candidates.” Those arguments (moral, practical, and theoretical) have found a continuous home in our pages, and rather than repeat them, I have compiled a list of a number of articles that support the anti-electoral position. Neither Bullets Nor Ballots was published in late 1983, and contains the following essays: Party Dialogue by George Smith; “Demystifying the State” by Wendy McElroy; and Voluntaryism in the Libertarian Tradition, A Voluntaryist Bibliography, Annotated, and Voluntaryism in the European Anarchist Tradition, by Carl Watner. Other pertinent articles published in The Voluntaryist are “The Ethics of Voting,” Parts I, II, and III [ * ] (Nos. 1, 2, & 4); “Book Review of Benjamin Ginsberg, The Consequences of Consent” (No. 9); “Button Pushing or Abdication: Which?”(No. 17); “Legitimacy and Elections” (No. 19); “The Voluntaryist Insight: The Political Thought of Etienne de la Boetie” (No. 26); “The Power of Non-Violent Resistance” (No. 27); “Some Critical Considerations on the United States Constitution” (No. 30); “Does Freedom Need to Be Organized?“ (No. 34); “The Myth of Political Freedom” (No. 35); “Cultivate Your Own Garden: No Truck With Politics” (No. 40); “The Illegality, Immorality, and Violence of All Political Action” (No. 60); and “The Tragedy of Political Government” (No. 79). Of course, Wendy McElroy’s”Why I Would Not Vote Against Hitler,” appearing in this issue and Sy Leon’s book, None of the Above, need to be added to this list.

Although None of the Above is being offered for sale through The Voluntaryist ($ 14.00 post paid to US adresses, $18 elsewhere), I have one major criticism of the book. It suggests that the option, None of the Above, be added to the ballot, so that those citizens who currently refuse to vote have a place to register their dissent. There are many problems with this proposal, and perhaps this is why it has never been adopted. Non-voters already have a way of demonstrating their disgust with the system: Stay Away from the Polls – Rather than involving non-voters in the system, Leon would have been closer to home to have suggested organizing a “League of Non-Voters.” As a general rule, the political system doesn’t care why you vote or – who you vote for; it is the act of voting that counts and helps legitimize the State.

Even the way Leon structures the None of the Above option proves this point. For example, on p. 25 he states that the candidate receiving the most votes (as against all his opponents) will still take office, even if None of the Above wins a plurality of the votes. The only thing None of the Above might do is to demonstrate that elected officials do not necessarily have the support of a majority of the voting citizenry. But this is possible, even now, if anyone cares to publicize the figures. The problem is that Leon does not realize how the State has used elections to shore up its foundations. “The right to vote” does not exist “to give the people a choice,” as Leon asserts on p. 27. The right to vote is an illusion of choice created by the State to make people think that they should pay their taxes and abide by the laws of the State because they have had some part in the decision-making process which led to those rules. As Theodore Lowi put it in The Voluntaryist, No. 79 (p. 4):

Participation is an instrument of conquest because it encourages people to give their consent to being governed…. Deeply embedded in people’s sense of fair play is the principle that those who play the game must accept the outcome. Those who participate in politics are similarly committed, even if they are consistently on the losing side. Why do politicians plead with everyone to get out and vote? Because voting is the simplest and easiest form of participation by masses of people. Even though it is minimal participation, it is sufficient to commit all voters to being governed, regardless of who wins.

In Chapter 3, “The Lesser of Two Evils,” Leon claims that if None of the Above be placed on the ballot, “Then those who disapprove of all the candidates can still participate in the electoral process without having to choose among degrees of evil.” (p. 34) What Leon ignores or misses is the fact that participating in elections – from the voluntaryist point of view is wrong – period. It is an evil to vote, even if you vote for None of the Above, or if your one vote could prevent some Hitlerian candidate from taking office. And even if the State were to pass a law that made voting compulsory (as in some countries, like Australia) it would still be wrong to vote. The point, as Leon seems to forget, is: Voting (in the political context) is wrong regardless of the options it offers you.

The most perceptive discussion of “The Lesser of Two Evils Is Still Evil” that I have found occurs in a book by Milton Mayer titled They Thought They Were Free (Chicago: University of Chicago Press, 1955, pp. 176-181). Excerpts were printed in The Voluntaryist, No. 31, under the title “The Day The World Was Lost.” A German chemical engineer describes how he succumbed to the Nazi regime. Under the National Defense Law of 1935 he was required to swear an oath of fidelity. Refusal to do so would have meant the loss of his job. His initial opposition to the oath was overcome by his belief that if he kept his job, he might be of help to his Jewish and dissident friends. So he decided to swear – with mental reservations – allegiance to the Nazis. Years later, the chemist admitted that his initial instincts were right: he should have refused to take the oath, and he realized his mental reservations meant nothing to the official who administered it. The oath was an immediate evil and should have been opposed. Committing a positive evil in the hope of achieving a future gain is erroneous thinking. At the time, the possibility of helping his friends was still in the future, and there was no way of knowing whether his apparent loyalty to the Nazi criminals would help save them.

The man eventually did assist a number of the government’s opponents to safety, but he felt that the world “ended” for Germany when he and other educated Germans of the time violated their consciences and chose the lesser of two evils. Had they all had the courage to oppose the regime, the greater evil of World War II and the genocide would probably have been avoided. Even if it hadn’t, there was no justification for doing wrong in order that some greater good ‘might’ come about in the future. At the very least, mass refusal to swear allegiance tothe regime, and other acts of civil disobedience, would have demonstrated to the world that far fewer Germans tacitly approved of the Nazis.

Aside from my objection to the None of the Above electoral option, there are a number of gems and libertarian insights to be found in Leon’s book. I’ll share my two favorites. One is found on page 84:

[A]lthough some of the goods and services provided by government are essential, it is not essential that they be provided by government.

As a corollary to this statement, we should continue to make clear to others that just because we oppose the government provision of some service (such as schools), this does not mean that we oppose the provision of that service by the free market. Our antagonism to government schooling does not extend to schooling per se, but is directed toward the government.

Near the end of Leon’s book, we find him berating those who look upon his rejection of political activity as a “do nothing” attitude. In the process he makes some very voluntaryist statements on pages 183-184. There can be no better close to this review than to quote him in full:

Why not support a candidate who shares my view? Because if a person shared my views he could not be a candidate…. An anti-political politician is not to be trusted since the best way to be against something is simply not to participate in it.

Why can’t the system be changed from within? Why not enter the political arena with the expressed intent of changing it? Simply because good intentions are not enough….

Just as the way to lessen crime is not to join the ranks of criminals, so the way to lessen the harmful effects of politicians is not to swell their ranks by joining them. There may be more glory and fame in running for political office, as contrasted with spreading one’s ideas nonpolitically, but it is not glory and fame that those concerned with human freedom are after… The public does, and should, look with a jaundiced eye upon any self-proclaimed anti-politician who uses political candidacy as a means of attracting attention.

Walking contradictions are not to be trusted – especially when they are asking for power.

Harry Browne-are you listening?

Introduction

Arbitration is a consensual process whereby two parties to a dispute agree to accept as final the judgment of a third person or persons in settling the matter in question. Arbitration depends upon the consent and voluntary agreement of the disputants, and the willingness of the arbitrator(s) to serve. What distinguishes arbitration from all forms of State judicial settlement of disputes is its totally voluntary nature. Arbitrators are not licensed by the State (at least not yet). The disputing parties select the arbitrators and determine the procedure and rules by which their disagreement will be settled. They may agree in advance of any actual dispute to submit their differences to arbitration or they may simply agree to arbitrate an existing problem. The arbitral award or settlement decided upon by the arbitrator obtains its binding force from the contract or agreement of the parties to arbitrate, and does not require the coercive legal apparatus of the State to be respected or enforced. Nonviolent, non-State punishments may be brought to bear against those who, having promised to arbitrate or honor an arbitral award, refuse to do so. Ostracism, excommunication, and the boycott are arbitral sanctions that function in the spirit of true voluntaryism.

Arbitration is undoubtedly as old as mankind, and is certainly older, as an institution, than the near-monopoly court systems we find in use in the contemporary nation-state. Arbitration has been favored in all the ancient legal systems (Jewish, Roman, Greek, Byzantine, Islamic, and Christian), except that of the Chinese, who believed that “going to law” or court was an evil. (The Chinese, while using mediation and conciliation, have always been reluctant to give third parties the right to make a judgement.) It is probably not an exaggeration, as Jerzy Jakubowski has written, to say that arbitration “is a universal human institution. It is [the] product of a universal human need and desire for the equitable solution of differences inevitably arising from time to time between people by an impartial person having the confidence of and authority from” the disputants themselves.

Wherever arbitration has existed, it has posed a threat to the supremacy of the State judicial system. Consequently, it has been co-opted, regulated, and controlled by the State, making its legal history a complex, and sometimes confusing, tangle. The purpose of this article is to offer an overview of arbitration, both past and current, interpreted from a voluntaryist point of view. Voluntaryists advocate an all voluntary society, where all the affairs of people are undertaken by mutual consent or not at all. In the absence of coercive, tax-supported governments which tend to monopolize the judicial settlement of disputes, arbitration and other voluntary dispute settlement practices would flourish and constitute an integral part of civilized life. The old Law Merchant, which was “voluntarily produced, voluntarily adjudicated, and voluntarily enforced,” and the international commercial arbitration practices of today prove that arbitration is a moral and practical alternative to compulsory dispute settlement by the State.

Most people assume that nation-states are prerequisites for producing “law and order”, and find it difficult to envision a competitive market in the judicial arena. As voluntaryists already realize, such is not the case. If the truth be known, the compulsory nation-state is destructive, rather than supportive, of property rights and the voluntary social order. Bruce Benson, whose scholarly work in this area I wish to acknowledge, once characterized the American Wild West of the mid-1800s (where coercive government was either absent or extremely weak) as “stateless, but not lawless.” Benson would have us focus on the fact that liberty is the mother, not the daughter, of civilized living. Property, contracts, and customary law existed before State-made law tried to supercede them. As Benson and others have noted, private property is a key characteristic of all societies where custom is the primary source of law, and where reciprocity is the primary impetus for meeting one’s obligations.

What does this have to do with arbitration? Arbitration is one of the key sources of voluntary law and order in a society without the State. Every contract or voluntary agreement between two or more people contains within itself the essence of the rules governing the transaction(s) between them. These “homemade” laws or rules derive their power from the consent of the parties, and usually differ markedly from statutory or third-party law (often arbitrarily) imposed upon them by the State with its power of legislative law-making. The essence of this idea can be seen in a conflict between International Business Machines Corp. and Fujitsu Ltd., that occurred during the late 1980s, which included an arbitral award of $833.3 million to IBM. IBM claimed that Fujitsu was copying its software, which then enabled Fujitsu to market computers that were compatible with IBM’s. Government-made copyright law did not clearly address the issue of such a complex software-hardware dispute, because technology had forged ahead into areas never before addressed by State-made law. Shedding the courts, their own legal staffs and lawyers, and four years of wrangling over the issue, the two companies decided to appoint two arbitrators to settle the issue. The two arbitrators were given “sweeping powers to shape future software relations between IBM and Fujitsu. The two men, in their own words, will ‘constitute the intellectual property law between the two companies’.” (Wall Street Journal, Sept. 18, 1987, A1)

History of Arbitration

While much of this article will focus on the various aspects and significance of domestic and international commercial arbitration, such as the IBM-Fujitsu case, there are important reasons for considering the use of arbitration in other areas of life. Arbitration can be, and has been resorted to, in many other types of situations involving community, club, or congregational disputes, patient complaints against hospitals or doctors, in divorce proceedings, and in attorney-client disputes. Arbitration has been widely used in resolving labor disputes, as well as in settling consumer complaints against retail businesses. Currently in Japan, arbitration is sometimes used to determine the amount of restitution a criminal owes to his or her victim. With a little imagination arbitration can be applied to almost any facet of life. Two examples will suffice to demonstrate.

The first is found in Jerold Auerbaclis book, Justice Without Law?, and describes the effects of an arbitral case in Puritan New England in the early 1640s. The dispute involved the amount to be paid by a Mrs. Hibbens, “wife of a prominent Boston resident,” and Mr. Crabtree, who provided carpentry services in her house. When neither of the two could agree on how much Crabtree was due, Mr. Hibbens suggested arbitration. He “chose one carpenter and Crabtree another. The arbitrators set a revised fee, but Mrs. Hibbens remained obdurate.” She not only found Crabtree’s work unsatisfactory, but cast aspersions on the skills of the two arbitrators, “which diminished their reputation in the community. Church elders approached Mrs. Hibbens, but she remained unmollified. After another arbitration attempt failed, the dispute moved into the First Church of Boston, where Reverend Cotton presided.”

The focus of the dispute now shifted “from a disagreement over wages to the stubborn recalcitrance of a church member who did not respect communal fellowship.” Not only did Mrs. Hibbens gossip behind the backs of the carpenter-arbitrators, she refused to confront them face-to-face, in a”church way,” as required by congregational rules. Ultimately, Mrs. Hibbens’ behavior was judged by the entire church membership, “in a process designed to reassert harmony and consensus.” As Auerbach pointed out:

Congregants were free to offer information, opinion, and admonition, but the purpose of individual participation was to encourage a collective congregational judgment, which would isolate offenders, restore them to congregational fellowship, and thereby strengthen communal values. The sanctions of admonition and excommunication were sufficient for this purpose. The church could neither arrest a wrongdoer nor seize his property, but the danger of expulsion, where church and community were virtually co-extensive, loomed ominously. [p.24]

This was Mrs. Hibbens’ fate. She was excommunicated by a vote of the church membership, pronounced “a leprous and unclean person,” and deprived of “the enjoymentent of all those blessed privileges and ordinances which God hath entrusted his Church withal, which [she had] so long abused.”

How many Americans know that George Washington placed an arbitration clause in his Last Will and Testament in 1799? Washington hoped that no conflicts would arise concerning the testamentary disposition of his property. However, he provided that “all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants each having the choice of one and the third by the two of those. Which three men thus chosen, shall, unfettered by Law, or legal constructions, declare their intent of the Testators intention; and such decision is to all intents and purposes to be as binding on the Parties as if it had been given in the Supreme Court of the United States.” So far as is known the provisions of this clause went unexercised.

Business arbitration in this country and Europe certainly pre-dated Washington’s will. Americans used arbitration during the Stamp Act crisis of 1765-66 when their refusal to pay British taxes blocked their access to colonial courts. In May 1768, the New York Chamber of Commerce appointed an arbitration committee “for the settlement of commercial disputes outside of the courts.” Referred to as “the oldest American tribunal,” the New York Chamber of Commerce “has continuously, except for a short time at the beginning of [the 20th] century, maintained some form of arbitration procedure.” The New York Stock Exchange, founded in 1792, provided for arbitration in its Constitution of 1817. The oldest arbitral institution in the cotton trade is to be found in Liverpool, England, where the first rules of cotton trading, which included rules governing arbitration, were published in 1863 by the Liverpool Cotton Exchange. Likewise, the first rules of the New York Cotton Exchange, founded in 1870 provided for a court of arbitration. The Dried Fruit Association of New York (now the Association of Food Distributors, Inc.) still maintains an arbitration tribunal which has been in continuous existence since the time of the group’s founding in 1906. One of the Association’s officials, writing in 1958, pointed out that it was not unusual for a request for arbitration to be received in the morning, and the arbitral award be issued the same afternoon. This was most desirable where the commodity in question was perishable and where it needed to be moved before the free time on the dock expired.

As William Wooldridge has pointed out in his chapter on “Voluntary Justice,” arbitration has always played an essential part in the workings of the Law Merchant. For several hundred years, arbitral tribunals composed of merchants and guildsmen settled “the most important trading disputes of England and of much of Europe.” The Law Merchant constituted “the body of customary rules and principles relating to merchants and mercantile transactions and adopted by traders themselves for the purpose of regulating their dealings.” These institutions were completely voluntary, “and if a man ignored their judgment, he [w]ould not be sent to jail.” Their decisions were well-respected, “otherwise people would have never used them in the first place.” No one forced a merchant to abide by his agreements or coerced him into honoring an arbitral award. His failure to do so would not place him in jail, but “neither would he long continue to be a merchant.” As Wooldridge put it,

The complete circumvention of official courts, one of the oldest and best established of civilized institutions, and the voluntary forfeiture of what would seem to be the most fundamental and essential characteristic of any court-the ability to enforce its judgments with legal coercion-present interesting questions …. [M]edieval merchants must have considered their interests better served by voluntary submission of disputes to one of their own than by formal common-law actions. [p.96].

Clarence Birdseye, author of Arbitration and Business Ethics (1926), once guessed that as many business disputes went to arbitration as were settled by the statist courts. He also observed that these commercial arbitrations “had no direct sanction of law, and were dependent only upon the mutual good faith of the parties for their operation and success.” [p.91] The threat of business sanctions and the desire for reciprocity were the primary motivations businessmen had for voluntarily living up to their promises.

Until the early 1920s, court decisions, some dating back to the 17th and 18th Centuries, governed arbitration proceedings in the United States. Lord Coke’s opinion in Vynior’s Case (Trinity Term, 7 Jac. 1), decided in 1609, formed the basis for the common law doctrine that “1) either party to an arbitration might withdraw at any time before an actual award; and 2) that an agreement to arbitrate a future dispute was against public policy and not enforceable.” The precedent established in Vynior’s case (from which it was extrapolated that the parties to a dispute “may not oust the court of its jurisdiction”-meaning that courts may not be deprived of their jurisdiction even by private agreement) became “the controlling decision in American arbitration law” until the New York State legislature abrogated the common law doctrine in 1920, and until a federal arbitration statute was passed in 1925. Other states soon followed suit, and for the first time in America, agreements to arbitrate future disputes were “legally binding and judicially enforceable.”

These new laws actually undermined the credibility of commercial arbitration. Arbitration had flourished for hundreds of years in the absence of any State-guarantee that arbitration agreements would be enforced by the courts. History had already clearly demonstrated that mercantile conformity to arbitration agreements did not depend upon the existence of the State or its enforcement mechanisms. The Law Merchant had always prohibited appeals of arbitration awards. Arbitration tribunals were designed to avoid unnecessary litigation, as well as to render timely decisions which would not disrupt the pace of business transactions. The laws of the 1920s opened many a Pandora’s box by raising a host of questions about how the new statutes would be enforced, and by creating the opportunity to appeal arbitral awards to the courts. As Bruce Benson noted:

[T]he incentives to develop non-legal sanctions [had been] undermined by these statutes…. [I]t does not follow that in the absence of modern arbitration statutes the level of arbitration would be dramatically less than it is today.

Lawyers would be less prevalent, and there would be fewer appeals, but because…stronger incentives would exist to develop mechanisms for the imposition of reputational sanctions, arbitration would be flourishing, even outside existing associations and exchanges.

International Commercial Arbitration

In POWER AND MARKET, Murray Rothbard pointed out that “the world has lived quite well throughout its existence without a single, ultimate decision-maker over its whole inhabited surface.” [p.3] As an example of how the world fared under this anarchical reign, he could have pointed to the medieval Law Merchant, which served as international legal system that governed without the coercive power of a centralized political state. Likewise, its successor today, international commercial law “is still largely enforced without the backing of nation-states.” Bruce Benson claims that “The international Law Merchant can be viewed as a constitutionality established system of governance for the international business community … despite the lack of politically defined geographic boundaries and a centralized authority with coercive power to tax and punish.” The most significant contribution of the international Law Merchant lies in the development of arbitration between two businessmen of perhaps different nationalities, conducting business across two or more political boundaries.

The history of modern international commercial arbitration began in Paris, France under the auspices of the international Chamber of Commerce founded in 1921. The ICC International Court of Arbitration was established in 1923, and as of May 1994, had handled some 8000 cases involving international commercial disputes. The rules of the Chamber embrace a number of Law Merchant concepts. “The ICC rules provide that arbitrators should be selected from different national origins, thereby preserving an international flavor in dispute resolution. So, too, ICC arbitrators are required to be experts in commercial conciliation and in international arbitration, again reviving the commercial sophistication of the merchant judge. Finally, the ICC procedures provide for the speedy settlement of disputes through a flexible conciliation procedure, and, failing that, an adaptable arbitral process. Here, too, the ideal of an expeditious and low cost arbitration process is partially embodied in the ICC Rules.” The primary benefit of using ICC Rules, or the rules of some other arbitration agency, like the American Arbitration Association, is that the parties to a dispute do not have to create their own procedures in an ad hoc manner. The ICC Rules are widely publicized, predictable, and easily used. “The International Court of Arbitration administers and supervises ICC arbitrations from the introduction of a request for arbitration to the rendering of a final Award. Disputes are not settled by the Court itself but by independent arbitrators-appointed or confirmed by the Court-who deal with the merits of a case.” The Court of Arbitration serves to protect the integrity of the arbitral process, provides lists of qualified arbitrators, and reviews each award before it is finalized. The National Committees of Arbitration, which function under the ICC, often offer moral assistance in upholding ICC awards, and often form interarbitral agreements acceptable to their merchant members.

Jan Paulsson, a French practitioner of international arbitration, writing in the early 1980s claimed that over 90% of all arbitral awards issued under the auspices of the International Chamber of Commerce were complied with. Charles Carabiber in his article in Martin Domke’s collection, International Trade Arbitration (New York: 1958) noted that, “The private character of arbitration eliminates the possibility of statistics and consequently it is not generally known that 85% of [international] arbitral awards are complied with. This figure was obtained from information given by several arbitration centers of long standing.” [p.163] These ballpark estimates were further confirmed by Rene David, in a 1982 book review of his own book, “Arbitration in International Trade”, which appeared in The Art of Arbitration. Regarding compliance with international arbitral awards, David wrote:

Account must be taken, first of all, of the fact that parties to a contract do in most cases perform their duties under the contract without bothering what the law-any national law-says about the matter… The losing party will ordinarily voluntarily comply with the arbitration award. He may be dissatisfied, but his commercial reputation is at stake, good faith impels him also to comply; he will abstain from the niceties of some lawyer’s law which might perhaps allow him an opportunity to challenge the award. Ninety percent of the arbitral agreements are complied with; ninety percent of the awards are voluntarily performed without raising the question whether they would be enforceable or not “at law.” [p.91]

At the same time that the national movement for statutory arbitration was gaining ground in the United States, there was a similar movement among the major trading nations of the Western world. Under the guise of embracing international treaties to assure the enforcement of international arbitral awards, these nation-States attempted to retain control over the arbitral process. The Geneva Protocol on Arbitration Clauses of September 24, 1923, and the Geneva Convention on the Execution of Foreign Arbitral Awards of September 30,1927, were the results of these efforts. Essentially these international agreements provided that each contracting State “is required to recognize as binding and to enforce awards rendered in the territory of another contracting State.” Some of the difficulties encountered under these treaties were removed with the passage of the New York Convention of June 19,1958, sponsored by the United Nations. By 1982, nearly 60 nations had signed this document. The New York Convention severely restricted the reasons for questioning a foreign arbitral award by the judiciary of the country in which it was being enforced. “The onus of proving that the award is not enforceable is shifted to the defendant resisting enforcement under the New York Convention.”

Gotaverken vs. General National Maritime

Three arbitral awards rendered in Paris, France on April 5, 1978 will serve to illustrate the working and rules of arbitration of the International Chamber of Commerce, describe their relationship to the New York Convention of 1958, and highlight the issue of party autonomy, by which the arbitration process is divorced from State-made law. ICC case numbers 2977,2978, and 3033 involved the Swedish shipbuilder, Gotaverken Arendal AB (the large Gothenburg shipyard) and the buyer of three newly-constructed tankers, the General National Maritime Transport Company (later succeeded by the Libyan General Maritime Transport Organization). The sales contracts included a clause, according to which “all disputes arising from or in connection with the present contract … shall be finally settled by arbitration … [to] be held in Paris and conducted in accordance with the Rules of Conciliation and Arbitration then in force of the International Chamber of Commerce. The award shall be final, binding … and each party agrees to abide by such decision….” Construction on the vessels had begun after a $90 million down payment had been made. Upon completion, Libyan General refused to take delivery or pay the balance outstanding because 1) contract provisions prohibiting the use of components made in Israel had been violated, and 2) certain technical specifications had not been met. Gotaverken rejected these arguments and initiated arbitral proceedings in accord with the contract.

The dispute was submitted to ICC arbitration in Paris, and the arbitral tribunal was composed of a French chairman, a Norwegian, and a Libyan. By a two-to-one decision (which the Libyan arbitrator refused to sign), the tribunal rejected Libyan General’s claims. Libyan General was ordered to accept delivery of the ships and to pay the outstanding purchase price, less a reduction amounting to about 2% for deviations from specifications. When Libyan General would not voluntarily comply with the arbitral ruling, Gotaverken petitioned the Svea Court of Appeal for the enforcement of the award in Sweden. Libyan General opposed this request on the ground that it had already begun appeal proceedings in France. It had petitioned the Court of Appeal of Paris to set aside the award. When the Svea Court of Appeal upheld the arbitration, Libyan General then instituted an appeal to the Swedish Supreme Court, asking that the Svea Court’s judgment be set aside, or at least held in abeyance until the proceedings before the Court of Appeal of Paris had been decided.

The basis for the Libyan appeals was 1) under French national law governing arbitral awards, the mere fact that an application for setting aside the award was before the Courts caused the award to be temporarily suspended; 2) the arbitral award was self- contradictory in that it acknowledged the vessels failed to meet contract specifications, yet ordered Libyan General to take delivery; and 3) it would subject Libyan General to criminal sanctions in Libya for violation of boycott legislation; and finally 4) the arbitral decision violated the French public order “because it imposed on a foreign contracting party an obligation contrary to the imperative norms of its home country” (i.e., violation of the boycott law). Libyan General’s strategy was to challenge the award in France, and thereby argue “that the award was not binding anywhere pending its challenge before the courts in the country where it was rendered.”

The Svea Court of Appeals upheld the arbitral award in a decision issued December 13, 1978, and the Swedish Court of Appeals affirmed the Svea judgment on August 13, 1979. Both courts agreed that the French courts had no jurisdiction over the arbitration award, even though the arbitration proceedings had taken place on French soil. Article 11 of the ICC Rules (revised as of 1975) provided

The rules governing the proceedings before the arbitrator shall be those resulting from these Rules and, where these Rules are silent, any rules which the parties or, failing them, the arbitrator) may settle, and whether or not reference is thereby made to a municipal procedural law to be applied to the arbitration.

Thus, the Swedish courts concluded that “the challenged award was not French in nationality.” Under both the New York Convention of 1958 and the ICC Rules of arbitration, the law of the place of arbitration would control the proceedings only in the absence of a specific agreement by the parties. Since in this case the parties had agreed to ICC Rules, the municipal law of France did not apply. Consequently, both the Svea Court of Appeal and the Swedish Supreme Court based their “decision not to take jurisdiction on the principle that parties to international arbitral proceedings are free to select the legal order to which they wish to attach the proceedings, and this freedom extends to the exclusion of any national system of law.” Furthermore, they viewed the award as binding on the parties from the moment it was issued in Paris, and hence not appealable because “an award would not be binding if it were liable to an appeal.”

The appeal before the Court of appeal of Paris by Libyan General to set aside the ICC award was declared invalid in a judgment rendered February 21, 1980. The Court of Appeal pointed out that 1) none of the parties or the arbitrators had designated any procedural law to govern the arbitration; 2) therefore the only binding rules were those of the ICC; and 3) the arbitral award could not be considered a French award because there was no connecting link to the French legal system, because neither of the parties were French, nor was the contract to be performed on French soil; and 4) that under the New York Convention of 1958, the winning party need not “as a precondition to enforcement elsewhere, seek confirmation of the award by the courts of the country where it was rendered”; or conversely, the country of the seat of arbitration (in this case, France) need not recognize the arbitral award in order for it to be recognized and enforced elsewhere (in this case, in Sweden). The ultimate effect of all three court decisions (two in Sweden and one in France) was to allow Gotaverken to exercise its right of attachment over the three ships, and to proceed with a judicial auction of the ships in order to satisfy its lien against them.

Party Autonomy or State Control

The decision in the Gotaverken case set off a debate among lawyers, jurists, and academics because it presented the question of whether or not it was possible for parties to international arbitration agreements to structure the proceeding and the resulting award so as to be totally independent of the jurisdiction of any nation-state. Could the parties divorce themselves from State control by private agreement, even though their arbitration proceedings had to occur in the territory of some nation-state? Jan Paulsson came closest to supporting the voluntaryist position when he maintained that “the binding force of an international [arbitral] award [is] derived from the contractual commitment to arbitrate in and of itself that is to say, without a specific national legal system serving as its foundation.” Others, such as F. A. Mann, defended the statist position that nothing is legal except what the State permits. Mann maintained that in reality there was no such thing as international arbitration because every “international” arbitration was “subject to a specific system of national law.” As he explained:

No one has ever or anywhere been able to point to any provision or legal principle which we permit individuals to act outside the confines of a system of municipal law. Every arbitration is subject to the law of a given State. No private person has the right or the power to act on any level other than that of municipal law. Every right or power a private person enjoys is inexorably conferred by or derived from a system of municipal law …. [p.160]

Mann presents some very fundamental questions about the nature of the State. “Is not every activity occurring on the territory of a State necessarily subject to its jurisdiction” even if the participants desire to remove themselves from its control? He admits that some States may give the parties more leeway in this regard, but he observes that no State has ever totally abdicated its control over what takes place in its geographic territory. Thus Mann concludes that “No act of the parties can have any legal effect except as the result of the sanction given to it by a [specific State’s] legal system.” [p.161] The principle of party autonomy is an illusion, and the municipal law of the seat of the arbitration must be the law governing the arbitral award. As he adds, “It would be intolerable if the country of the seat [of the arbitration] could not override whatever arrangements the parties may have made. The local sovereign does not yield to them except as the result of freedoms granted by himself.”

Jakubowski is another who concurs that, “States have adopted the principle of their exclusive jurisdiction to settle disputes between people,” but then admits that certain exceptions (one of them being arbitration) have been granted to non-State courts. He says that the State and State courts are clearly necessary, if for no other reason, than they provide the only final means of dispute settlement. As Jakubowski puts it:

Arbitration could act outside the limits of the State’s ‘concession’, but in such a case the winning party would depend for the performance of obligations established in the arbitral award, on the good will of the other party. Because of the uncertainty of whether the award will be carried out by the losing party, the guarantees of legislation and the assistance of the State are indispensable for arbitration. Practice has shown the limited effectiveness of social pressures (in international trade the pressure of business circles and professional organizations of businessmen, e.g., chambers of commerce) as a means of enforcing arbitral awards. [p.178]

Although Jakubowski’s evaluation of arbitration history clearly conflicts with that of Benson and Wooldridge, he at least grants that it is possible for transnational arbitration to function in a manner wholly divorced from the State, provided the arbitration process depends only on non-State enforcement mechanisms. Mann, on the other hand, upholds the supremacy of State law, even when the parties want nothing to do with it:

How do we, how do arbitrators, know that their decision, based on their standards of fairness, is [fairer] than the law? Absolute perfection not being attainable, it is infinitely more dangerous to allow discretion to arbitrators than to compel [the] parties to accept the law, its relative certainty, its authority and, above all, its nondiscriminatory character. The law is rarely an instrument of oppression. [p.176, emphasis added]

The law is always “an instrument of oppression” because, unlike arbitration, it does not require the consent of the parties. There is a need for the final and conclusive settlement of disputes, but it is a false assumption to behave that the coercive State is the only way to achieve this objective. The free market approach to this problem is to let the disputing parties themselves select from among competing agencies, all of which offer dispute settlement services. The voluntaryist position is that competing institutions of final dispute settlement would exist (and, in fact, have existed, as arbitration history proves), would not require the State to function, and that the State’s involvement in the process is not supportive, but only destructive.

“An institution of initiated force is not necessary to compel disputants to treat arbitration as binding. The principle of rational self-interest, on which the whole free market system is built, would accomplish this end quite effectively.” There is not only a moral satisfaction in acting out one’s honesty, but there is an economic benefit, too. Linda and Morris Tannehill point out:

Men who contract to abide by the decision of a neutral arbiter and then break that contract are obviously unreliable and too risky to do business with. Honest men, acting in their rational self-interest, would check the records of those they did business with and would avoid having dealings with any such individuals. This kind of informal business boycott would be extremely effective in a governmentless society …. [p. 66]

In a society without a State, no judicial or arbitration agency would have compulsory jurisdiction, by which they could drag unwilling participants into court. Of course, it would be possible to try a defendant in absentia and issue a boycott judgment against a convicted party. The “convicted” would suffer as a result of the social consequences of his actions, even though no invasive force would be inflicted directly upon him.

The Tannehills have also pointed out that “a court system which has a monopoly guaranteed by the force of statutory law will not give as good quality service as will free market arbitration agencies which must compete for their customers.” This is similar to the observation made by Bruce Benson and others that under a customary law system, “the more effective institutional arrangements replace the less effective ones.” In other words, where customers are free to migrate between competing judicial and arbitration agencies, they will choose to patronize those that offer the best quality service at the lowest possible prices. As Bruce Benson explained in THE ENTERPRISE OF LAW, “there appears to be substantial benefit from not having monopoly [as in a single legal system], just as there is for the production of all other goods and services.” [p.300]

Arbitration and the (voluntaryist) Sources of Law and Order

Imagine for an instant, as William Vandersteel posited in No. 14 of The Voluntaryist, that you had to operate in both your social life and business life as though you had no State courts to resort to in the event that someone caused you a harm or failed to abide by their contractual agreements. You would not be able to employ coercive third party enforcement measures. Two countervailing tendencies would come into operation. First of all, you would be very careful with whom you had dealings. You would only want to interact with those who had a first-rate reputation and an honorable record of fulfilling their promises in all circumstances. Your second inclination would be to guard your own reputation to the utmost. “Individuals would strive always to act properly and with the highest integrity, knowing that any blemish on their reputation would virtually bar them from participating in any future business ventures.”

If we define customary law as a legal system which develops from the bottom up through voluntary arrangements, we will discover that such a system operates in much the same manner as envisioned by Vandersteel. Bruce Benson in his article “The Impetus for Recognizing Private Property and Adopting Ethical Behavior,” notes that among small groups of people who frequently interact, there is little need for formal institutional arrangements to insure credible behavior. Everyone is knowledgeable about everyone else’s reputation. As the size of the group expands, the likelihood of dealing with someone whose reputation is not known is increased, as well as the probability that some person(s) might not fulfill their promises. “Therefore, for such expansion to occur, each party’s commitments to accept commonly accepted norms of behavior must be credible.” [p.51]

If a dispute arises between people belonging to different mutual support groups, the disputants may either resort to violent self-help, abandon their claim against the other party, or attempt to negotiate a peaceful settlement. Mutual support groups, whether family, commercial, or social, not only strengthen the position of the solitary individual, but they also act as a means of sharing the expense of dispute settlement. Violence, whether individual or in concert with others, is almost always more expensive than a peaceful resolution. Thus “acceptance of nonviolent dispute resolution will become a customary obligation that is required for group membership,” and the “resort to violence without first trying to achieve a nonviolent solution will result in ostracism by the group.” [p.53]

Arbitration plays a pivotal and important part in this process of peaceful dispute settlement. Benson describes how boycott and ostracism work under the customary law, and it is readily apparent how this applies to arbitration in the absence of a State enforcement apparatus:

[C]ustomary law is tightly bound with all other aspects of life. Fear of this boycott sanction reinforces the self-interest motives associated with the maintenance of reputation and reciprocal arrangements. It also deters intentional offenses. In other words, because each individual has made an investment in establishing himself as part of the community, (e.g., establishing a reputation), that investment can be “held hostage” by the community, in order to insure that the commitment to cooperate is credible. [p.54]

Under a customary law system, arbitration “decisions can be enforced without the backing of a centralized coercive authority.” [p.55] The key to dispute settlement process in customary law systems is that the loser must “buy back his reputation” by honoring the arbitral award. Failure to do so will result in his ostracism by the entire group. The individual is faced with the choice of living as a social outcast or honoring his commitment to abide by the result of the arbitration. Under such a system, the same incentives apply to the arbitrator as well as to the disputants. Arbitrators must be acceptable to both sides of a dispute.

The arbitrator’s “only real power is to persuasion” and he relies upon the consent of the parties, which he has obtained before hand, to insure that they will abide by his award. The arbitrator is concerned with the fairness of his judgement, since his own reputation and standing in the community are at stake if either party to the arbitration refuses to honor his decision.

Benson also demonstrates how the customary law of non-violent sanctions can operate among members of different support groups, where normally there would be little potential for the boycott sanction to be effectively applied by a member of one group against a member of another group. “Each individual must feel confident that someone from the other group will not be able to take advantage of him and then escape to the protection of that other group. Thus, some sort of intra-group insurance arrangement becomes desirable” and some sort of formalized dispute settlement apparatus is set up between the groups.

For instance, in order to develop a group’s reputation the membership might bond all members in the sense that they will guarantee payment if a member is judged to be in the wrong in a dispute with someone from the other group. The mutual support group becomes a surety group as well. Membership in a group then serves as a signal of reputable behavior to members of another group, and lack of membership serves as a signal that an individual may not be reputable [or at least that he has no surety backing]. Furthermore, if a member of one group cannot or will not pay off a debt to someone in the other group, [as] established by an acceptable arbitrator, then the debtor’s group as a whole will [pay the debt] in order to maintain the benefits of the group’s reputation. And as a consequence, the individual for whom the group has had to pay will owe his own group members rather than someone from a separate group. [This is known as subrogation in the contemporary insurance industry. Letters of credit in the banking industry serve the same purpose.] In this way the boycott threat comes into play once again. Members of a group are not going to continue bonding an individual who generates debts to the group’s membership but does not pay them off. [By this process of subrogation, the] large long-term benefits of intra-group interaction [and] the self interest incentives to maintain intra-group relationships come [back] into play. [p.62]

How effective are these non-State sanctions? How do shunning, excommunication and the boycott operate? In his book, What is Mutualism? (1927), Clarence Lee Swartz wrote:

Under certain circumstances the boycott and its companion, ostracism, may constitute a most drastic penalty. On account of the gregarious habits of human beings, to be put wholly beyond the pale of society would be more painful to many than to be incarcerated in a prison with others…. It is simple; it is easily and inexpensively applied; it involves, theoretically, none of the elements of physical force; and, above all, it is not an invasive act. What more ideal method of correcting the erring tendencies and antisocial activities of our fellow-men can be conceived? [pp.165-166]

Certainly these observations are true with respect to one of the best known historical examples of excommunication, which involved Baruch Spinoza (1632-1677) in 1656. Spinoza’s excommunication, known in Hebrew as a ‘kherem’or’herem’, was pronounced by the Jewish rabbis of Amsterdam because he denied the existence of angels, “the immortality of the soul, and Gods authorship of the Torah.” No Jew was to conduct business with him, stand within four paces of him, or even speak to him. The decree of kherem meant”the virtual expulsion of the person upon whom it was inflicted,” and his exclusion “from the religious and social life of the community.” Recognizing the severity of the consequences, the Rabbinic authorities did not permit its use except in the most serious cases.

The Jewish custom of “Kherem” is also the underlying basis for the everyday functioning of the world’s diamond bourses. Jews have been involved in the diamond trade since the Middle Ages, congregating in Antwerp and Amsterdam, after they were expelled from Spain in 1492. “The diamond industry has systematically rejected state created law.” In its stead, a highly sophisticated system of private governance has evolved which relies upon mandatory pre-arbitration conciliation and arbitration. There is a striking parallel between Orthodox “Jewish law and the modern organization of the diamond industry.” As Lisa Bernstein has noted:

[U]nder Jewish law, a Jew is forbidden to voluntarily go into the courts of non-Jews to resolve commercial disputes with another Jew. Should he do so, he is to be ridiculed and shamed. Jewish law also provides rules governing the making of oral contracts and lays down rules for conducting commercial arbitration. In the diamond industry, Jewish law provided a code of commercial fair dealing that gradually adapted to meet the industry’s changing needs; yet, even as the force of religious law broke down, the system remained strong. [p.141]

Even today, “the largest and most important” diamond bourse in the United States, the New York Diamond Dealers Club, has a large Jewish membership. Each member, upon joining, agrees “to submit all disputes arising from the diamond business between himself and another member to the club’s arbitration system,” which is final, binding, and non-appealable to the New York State courts. Should a member violate this agreement, the Club’s Floor Committee will impose either a fine or expulsion. In the latter case, the errant member’s name and photo are posted in bourses all over the world, so that he is effectively prevented from participating in the foreign diamond trade. The New York Diamond Dealers Club, in turn, is affiliated with the World Federation of Diamond Bourses, which is an organization composed of the world’s twenty diamond bourses. Each of these courses extends trading privileges to members in-good-standing in their local diamond trading club. “As a condition of membership in the federation, each bourse is required to enforce the arbitration judgments of all member bourses.” In addition, the World Federation maintains its own board of arbitrators, which is responsible for settling disputes between two or more bourses themselves; and for determining which bourse should hear an arbitration case when the parties to it are members of different bourses.

Conclusion

Arbitration is a universal, human institution which preceded the monopoly system of law embraced by contemporary nation-states. Arbitral anarchy has threatened State supremacy because it offers businessmen or others disaffected with the State legal system a way of solving their problems without involving the State. As Steven Lazarus put it, arbitration offers a “mechanism by which the debilitating forces of legalistic sovereignty can be circumvented.” [p.174] Throughout history, arbitration has been the hallmark of all customary law systems. The practices of the Law Merchant prove beyond doubt “that custom may have the force of law, as a means of social discipline, although it does not rest on the will of the political sovereign, but on objective standards of reason.”

Arbitration is a purely voluntaryist means of settling societal disputes. In an interesting insight on means and ends, Bruce Benson, Murray Rothbard, and others have noted that customary law and the private sector must provide the underlying foundation of property rights for the free market system. It is impossible in the nature of things for a compulsory, monopoly legal system to supply the laws required by a totally competitive system. “Politically dictated rules” and statutory law are “not designed to support the market system; in fact, government-made law is likely to do precisely the opposite.” A coercive, non-competitive judicial system simply cannot be made to define property rights because it is based upon the supremacy of the political sovereign. In its absence, a customary law system based on private property and personal property rights would evolve, and arbitration would become one of the major ways of settling disputes.

Joseph Jenkins in his article, “The Peacemakers,” highlights the importance of arbitration to humankind. He says that “if men are ever to realize their potentials, they must master the art of living together peacefully… They must devise means of settling their differences by words instead of swords or … warfare… [I]t seems … that when the concepts of conciliation, mediation, and arbitration were introduced into human society, an immense stride was made in the problem of enabling people to live peacefully together.” He calls arbitrators ‘peacemakers’ “because they have it within their power to contribute more to the maintenance of good relations between conflicting forces in our society than any other group,…” Mankind “must be mature enough and wise enough to solve their problems without government … This is the very essence of self-government” and voluntaryism. [pp.436 and 467]

Short Bibliography

Bruce Benson, THE ENTERPRISE OF LAW: Justice without The State, San Francisco Pacific Research Institute for Public Policy, 1990.

Bruce Benson, “The Impetus for Recognizing Private Property and Adopting Ethical Behavior in a Market Economy: Natural Law, Government Law, or Evolving Self-Interest,” 6 REVIEW OF AUSTRIAN ECONOMICS, 1993, pp.43-80.

Lisa Bernstein, “Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry,” 21 JOURNAL OF LEGAL STUDIES, 1992, pp.115-157.

Mauro Ferrante, “About the nature of (national or a-national, contractual or jurisdictional) of ICC awards under the New York Convention,” in Schultz and Van Den Berg, pp. 129-141.

Jerzy Jakubowski, “Reflections on the philosophy of international commercial arbitration and conciliation,” in Schultz and Van Den Berg, pp. 175-176.

Joseph Jenkins, “The Peacemakers,” 47 GEORGETOWN LAW JOURNAL, 1959, pp. 435-473.

F. A. Mann, “‘Lex Facit Arbitrum’,” in Pieter Sanders (ed.), INTERNATIONAL ARBITRATION LIBER AMICORUM FOR MARTIN DOMKE, The Hague: Martinus Nijhoff, 1967, pp. 157-183.

Jan Paulsson, “Arbitration Unbound: Award Detached From the Law of Its Country of Origin,” 30 INTERNATIONAL AND COMPARATIVE LAW QUARTERLY, April 1981, pp. 358-387.

Jan C. Schultz and Albert Van Den Berg (eds.), THE ART OF ARBITRATION, Deventer: Kluwer Law and Taxation Publishers, 1982.

Morris and Linda Tannehill, THE MARKET FOR LIBERTY, Lansing: By the authors, 1970.

William C. Wooldridge, UNCLE SAM THE MONOPOLY MAN, New Rochelle: Arlington House, 1970.

by Randy E. Barnett
Number 83 – Oct 1996

[Editor’s Note: Excerpts from Part I of this article appeared in the prior issue of The Voluntaryist. The following excerpts were taken from the author’s “Pursuing Justice in a Free Society: Part II Crime Prevention and the Legal Order,” 5 Criminal Justice Ethics, Winter/Spring 1986, pp. 30-53. Footnotes have been deleted, although they appeared copiously in the original. The author is currently the Austin B. Fletcher Professor, School of Law, Boston University. Reprinted by permission of the author and The Institute of Criminal Justice Ethics, 989 Tenth Avenue, New York, NY 10019.]

A Non-Monopolistic Legal Order

A possible objection to the view [of law] taken here is that it permits the existence of more than one legal system governing the same population. The answer is, of course, that such multiple legal systems do exist and have in history been more common than unitary systems.

What kind of legal order is consistent with the rights and remedies described in Part One of this article? Two constraints on our choices immediately present themselves.

First, the legal order must be financed by noncoercive means. The confiscation or extortion of one person’s rightful possessions to finance the defense of that person’s rights or those of another is itself a rights invasion. Second, the jurisdiction of each court system cannot be a legal monopoly. It would be inconsistent with the rights and remedies of the Liberty Approach to impose legal sanctions on someone solely because he has attempted to provide judicial services in competition with another person or group since such an attempt would itself violate none of the rights specified by the Liberty Approach. I shall consider each of these constraints in turn.

Noncoercive Sources of Funding

There is no reason why either a law enforcement agency or a court system cannot charge for its services, in much the same way as do other “essential” institutions, such as hospitals, banks, and schools.

Each business requires expertise and integrity, and institutions engaged in such activities must earn the trust of the consumer. Hospitals, banks, and schools, however, rely primarily on fees charged their customers, though payment of these charges can be made in a variety of different ways.

The very large and largely unanticipated expenditures for emergency hospital care are financed by insurance arrangements, by conventional credit and, of course, by cash payments. Banks raise the bulk of their revenue from the difference between the interest they charge borrowers and the interest they pay depositors, and where this differential is narrow, service charges may be imposed as well. Schools which do not receive tax receipts rely largely on tuition payments made by parents and students out of savings or from the proceeds of long-term loans. A significant portion of both educational and health services is subsidized by private charitable contributions.

It takes no great imagination to envision competitive law enforcement agencies providing police protection to paying subscribers, especially in a society where streets, sidewalks, and parks are privately owned. (Park and road owners could, for example, bundle the provision of protective services with their other transportation and recreational services.) Such a system would probably include agreements between agencies to reimburse each other if they provide services in an emergency to another firm’s client. Competitive court systems could utilize many of the same techniques as hospitals to fund their services: insurance, credit, cash, and charity. Prepaid legal service plans or other forms of legal insurance are also possible and, where permitted, sometimes are available even today.

In addition, court systems could profit by selling the written opinions of their judges to law firms (or to the various retrieval services on which lawyers rely). Such opinions would be of value to lawyers and yield a profit to the court system which sold them only to the extent that they are truly useful to predict the future actions of these judges. So to fully profit from such publications, each court system would have to monitor and provide internal incentives to encourage its judges both to write and to follow precedential decisions.

At present, attorneys bill clients by the hour or collect a percentage of the damage awards they succeed in obtaining. They also work pro bono, that is, they donate their services in the interests of justice. Except in unusual cases, however, those who successfully bring or defend lawsuits in the United States today cannot recover their legal fees from those persons who either violated their rights or who wrongfully brought suit against them.

In contrast, a Liberty Approach requires restitution to compensate as completely as possible for all the determinable expenses which result from a rights violation. Therefore, in a legal system that adheres to a Liberty Approach, the loser of a lawsuit must be liable (at least prima facie) for the full legal costs of the prevailing party. In the absence of such a rule, the innocent party would be made to absorb some of the costs of the other party’s wrongdoing. And such a legal rule would also serve both to protect innocent persons from the expense and injustice of baseless lawsuits by increasing the costs of losing weak cases, and to help pay for meretricious winning lawsuits brought by people who could not otherwise afford the legal costs.

Moreover, it is important to note that consumers using such institutions as hospitals, schools, and banks must now pay both for the services of doctors, bankers, and teachers and for the overhead of the facility (the hospital, the bank, or the school) where these professionals practice. With the legal profession, however, we are accustomed to privately paying for lawyers, while providing the capital and labor used by lawyers, courts and court personnel by tax receipts. This “public good” arrangement encourages overuse by some until court backlogs and overcrowding create queues that substitute for prices or fees to clear the market.

Some people worry that allocating court resources by means of a market price mechanism will unfairly reward the rich. But the system as it now exists rewards those litigants who are better able to wait out the imposed delays and penalizes those who for any reason require a fast decision. Who is more likely to be in each group, the wealthy, or the poor, a company or an injured consumer, the guilty or the innocent? Remember also that in a Liberty Approach, the loser would have to reimburse the prevailing party for court costs, including costs caused by delaying tactics. The most likely result of adopting a competitive legal order with market-based pricing is that all legal costs would be greatly reduced from their present level, and successful litigants would be able to keep a higher proportion of whatever damages awards they recovered.

In short, the financing of legal services is neither a very different nor a more serious problem than the financing of many other public services that rely only minimally, if at all, on tax revenues and that sometimes even now must compete against tax-subsidized competition to survive. Whatever problems may exist in providing indigents with legal and judicial services exist as well with hospitals and schools. But such problems do not justify taxation as a means of providing these services to everyone, whether indigent or not, nor, as was suggested above, must these services be provided in kind.

No Jurisdictional Monopoly

The argument that law enforcement and adjudication are so important that they must be provided by a coercive monopoly is ironic. If one had to identify a service that is really fundamental to social well-being, it would be the provision of food. Yet no one (in this country) seriously suggests that this service is “too important” to be left to private firms subject to the market competition. On the contrary, both theory and history demonstrate that food production is too important to be left to a coercive monopoly.

The more vital a good or service is, the more dangerous it is to let it be produced by a coercive monopoly. A monopoly post office does far less harm than monopoly law enforcement and court systems. And a coercive monopoly might go largely unnoticed if it were limited to making paper clips, that is, the inferior and/or costly paper clips inevitably produced by such a monopoly might not bother us too much. It is when something really important is left to a coercive monopoly that we face potential disaster.

Moreover, upon closer examination the seemingly radical proposal to end the geographical monopoly of legal systems is actually a rather short step from the competitive spirit to which we have been, and to some extent still are, accustomed. In the long history of English law, royal courts competed with merchant courts; courts of law competed with courts of equity. “The very complexity of a common legal order containing diversely legal systemscontributed to legal sophistication.” Even today, the federal system in the United States preserves a degree of competition between state and federal courts. We are accustomed to the idea of “checks and balances” among governmental power centers that is said to be embodied in the constitutional framework. And private adjudication and arbitration organizations routinely compete with government courts for commercial business.

In evaluating the merits of a nonmonopolistic legal order we must be careful always to take a comparative approach. It is tempting but ultimately fruitless to compare any proposal to an ideal that no other possible legal order could more closely achieve. When comparing the realistic prospects of a legal order made up of diverse legal systems with those of a monopoly legal system, the advantages can readily be seen.

Without a coercive monopoly, actual or potential competition provides genuine checks and balances. In a competitive legal order, an individual excluded from or oppressed by one legal system can appeal to another; an individual shut out of a monopoly legal system cannot. People are extremely reluctant to “vote with their feet” by leaving a country because doing so means abandoning one’s friends, family, culture, and career. And yet people do so if things get bad enough. By having the choice to shift one’s legal affiliation without having to incur the substantial costs of expatriation means that things do not have to get nearly so bad before a change in affiliation occurs.

Contrary to contemporary preferences for a unitary legal system, it is the pluralism of the Western legal order that has been, or once was, a source of freedom. A serf might run to the town court for protection against his master. A vassal might run to the king’s court for protection against his lord. A cleric might run to the ecclesiastical court for protection against the king.

Law will remain supreme in a society if, and only if, a unitary legal system does not develop.

Perhaps the most distinctive characteristic of the Western legal tradition is the coexistence and competition within the same community of diverse jurisdictions and diverse legal systems. It is this plurality of jurisdictions and legal systems that makes the supremacy of law both necessary and possible.

The modern monopolistic conception of a unitary legal system threatens this vital diversity.

Moreover, while we are accustomed to thinking about a single agency with a geographical monopoly such as county government providing both the judicial system and the police agency to enforce its orders, in a competitive legal order no such combination is either likely or desirable. Wholly different skills and resources are needed to efficiently render just decisions than are needed to efficiently enforce such decisions as are rendered by a court.

For instance, an efficient judicial system must accumulate and organize the historical information and legal analysis needed to do justice between contending parties, and it must also demonstrate to the relevant social group that justice is being done. A successful court system must fulfill at least two distinct functions: the justice function and the fairness function. The justice function consists of devising and implementing reliable means of accurately determining facts and law. The fairness function consists of convincing the practicing bar who must recommend where to initiate lawsuits, the litigants who must suffer the consequences of this choice, and the general public who must acquiesce to the enforcement of legal judgments in their midst that the procedures it has employed have produced justice. A legal system will not provide a service worth paying for if it fails to fulfill either function. Additionally, some kinds of procedural safeguards may be mandated not only by market demands but by principles of justice as well.

Efficient law enforcement, on the other hand, involves the least costly use of coercion (a) to protect people from harm, (b) to seize and sell property in satisfaction of judgments by a “recognized” court, or (c) to administer a system of productive enterprises where persons who are either unable or unwilling to make payments from regular earnings can be employed under controlled conditions and paid market wages from which reparations are deducted until their debt to the victim is satisfied. It is implausible that a single agency would provide any two of these services. The fact that an institution performs one of these functions well would seem to be unrelated to its ability to effectively perform any of the others. It is even more implausible that a successful law enforcement agency would also most efficiently supply judicial services.

As important as the balance maintained by a competitive legal order are the constraints provided by the requirement that legal systems contract with their clientele. Deprived of the power to tax and the power to coercively impose their services upon consumers, legal systems which must depend upon market-based fees and prepaid insurance would have to be comparatively more responsive to the needs and desires of their consumers than agencies with the right to collect their revenues at gun point. The fact that individuals and firms respond to the incentives provided by competition is acknowledged to be true in every other area of human endeavor. Human nature does not suddenly change when one gets a job providing law enforcement and judicial services.

Where opportunities for better service are perceived by entrepreneurs, the capital markets permit enormous amounts of money to be raised in a short period of time, either to purchase existing firms which are mismanaged, to start a new firm, or to diversify from one area of law enforcement into another. Each legal system would be constrained by the knowledge that alternative systems exist, in much the same way that individual states in a federal system are constrained in how they make corporation law by the knowledge that it is always possible for companies to reincorporate in another state without moving their assets. Even a rumor of unreliability can be expected to shake the biggest of companies.

In short, there is an increased likelihood that a competitive legal order would be far more responsive to the consumer than a coercive monopoly. In fact, when one seriously compares the potential responsiveness of each system, many readers may concede the point and offer the opposite objection: Competing jurisdictions would most-likely be too responsive to their customers, and this would inevitably lead to injustice and serious conflicts among agencies, creating serious social disruption. What is to prevent one judicial organization from fighting with or ignoring the rulings of another? Why should any organization heed the call of another? These are serious questions deserving serious answers, but first some perspective is needed.

We now have fifty (state) court systems in the United States, each with its own hierarchical structure, plus twelve Federal Circuit Courts of Appeals. There is no general right to appeal from the decision of any one of them to the Supreme Court of the United States. (With few exceptions, the Supreme Court of the United States must choose to accept a petition for review.) And the situation is, in fact, still more diverse. For within each state, there are often numerous appellate court jurisdictions from whose judgment one has no general right to appeal to the supreme court of that state. (Again, with few exceptions, the supreme courts of each state must choose to accept a petition for review.) Moreover, the federal as well as many state appellate court districts are divided into “panels” of judges, who are randomly assigned to hear cases arising from the same jurisdiction. Add to this diversity the many municipal court systems and courts of limited jurisdiction, such as bankruptcy courts, and the image of a unitary court system begins to blur.

The abolition of geography-based jurisdictional monopolies would mean only that jurisdictional conflicts would arise between persons who had chosen different court systems by contract, rather than as now between persons who have decided to live in different places. Where two disputants have chosen the same court system, no jurisdictional conflict is presented. Where individuals have chosen different systems, conflicts between the two disputants would be governed by the same type of preexisting agreements between the court systems that presently exists between the court systems of states and nations.

Extended conflict between competing court systems is quite unlikely. It is simply not in the interest of repeat players (and most of their clients) to attempt to obtain short-run gains at the cost of long-run conflict. Where they have the opportunity to cooperate, in even the most intense conflicts, warfare for example, participants tend to evolve a “live and let live” philosophy. Most successful lawyers do not today go to any lengths to pursue a given client’s interests: they must live to fight another day and to preserve their ability to effectively defend other clients. Likewise, it is not in the interest of any judge or court system to use or threaten force to resolve a legal or jurisdictional conflict in any but the most serious of circumstances.

Courts and judges have therefore, traditionally found peaceful ways to resolve the two questions most likely to lead to conflict when multiple legal jurisdictions exist: Which court system is to hear the case when more than one might do so? And which law is to be applied when more than one law might be applied? Much of the court-made law of “civil procedure” addresses the first question, and an entire body of law called the conflict of laws has arisen spontaneously (that is, it was not imposed by highest authority) to provide a means of resolving the second of these two questions. As one commentator wrote:

What is the subject matter of the conflict of laws? A fairly neutral definition is that the conflict of laws is the study of whether or not and, if so, in what way, the answer to a legal problem will be affected because the elements of the problem have contacts with more than one jurisdiction.

How much greater the incentive to cooperate would be if competing judicial services did not have access to a steady stream of coercively obtained revenue, that is, by taxation. Those contemplating such a conflict would know that the resources available to fight would not exceed those on hand and those which people were freely willing to contribute to the fight. Unlike national governments, they could not obtain by coercion, that is by draft, personnel to enforce their judgment.

A “renegade” judicial system or law enforcement firm, no matter how financially well endowed it might be as compared with any single rival, would undoubtedly be dwarfed by the capital market as a whole. Imagine the Cook County Sheriff’s Office fighting all the other sheriff’s offices in the region, state, or country with only the resources it had on hand. (Actually, the jurisdictional dispersion of a non-monopolistic legal order makes McDonald’s declaring war on Wendy’s and Burger King a far more apt analogy.)

The argument that we need court systems with geography-based jurisdictional monopolies does not stop at the border of a nation-state. Any such argument suggests the need for a single world court system with one Super-Supreme Court to decide international disputes and its own army to enforce its decisions. After all, the logic of the argument against a competitive legal order applies with equal force to autonomous nations. Yet, although governments do go to war against one another, of course, they can tax their populations and draft soldiers, few people favor the coercive monopoly “solution” to the most serious problem of war. Rather than invoking the Power Principle that would mandate the creation of a hierarchy, most people favor the use of “treaties” or agreements, contracts, if you will, between nations to settle their conflicts. That is precisely how a non-monopolistic legal order should and would resolve their conflicts as well.

To better understand the case for a non-monopolistic legal order and the deficiencies of a monopolistic system, posit what most people fear would happen if a unitary international “one-world” court system and police force were adopted. The same fears should apply with equal force to a national monopoly court system, except for the fact that some people have the ability to flee if a single country becomes too tyrannical. The abolition of geography-based jurisdictional monopolies would simply strengthen the constraints on tyranny by making alternative legal systems available without leaving home.

In sum, conflicts between court systems whose jurisdictions geographically overlap present no huge practical problem. It is more reasonable to expect a never-ending series of “little” problems around the edges. Information must be shared; duplicated efforts avoided; minor conflicts settled amicably; and profit margins preserved. As with any other organization, the normal problems confronting business and political rivals who must constantly strike a balance between competition and cooperation would have to be managed. How these edges would be smoothed would sometimes require ingenuity. There is no good reason, however, to refrain from seriously pursuing this alternative to the Power Principle.

Imaging a Non-Monopolistic Order

It is no easier to predict the formal organization and division of labor of a future legal order than it is to predict the formal organization of the personal computer market ten years from now. (Of course, ten years ago the challenge would have been to predict the very existence of a personal computer market.) Difficulties of prediction notwithstanding, some speculation is needed, for without a conception of what such a legal order would look like, few will be inspired to move in the direction of a Liberty Approach. However, rather than attempt the impossible task of comprehensively assessing the limitless possibilities that freedom makes possible, let us instead imagine that somewhere today there exists the legal order that I shall now describe.

In this hypothetical world, the vast majority of people who work or who have spouses or parents who work are covered by health insurance arrangements (like those provided in our world by such companies as Blue Cross/Blue Shield). In return for a monthly fee, if they are ever sick they receive medical attention by simply presenting their membership card to an approved doctor or hospital. In this hypothetical world, many people also carry a Blue Coif/Blue Gavel card (“Don’t get caught without it!”) as well. If they ever need legal services, they present their card to an approved lawyer and court system. Of course, as with medical insurance, not all kinds of legal actions are covered and there may be limits to some kinds of coverage; and not everyone makes use of this type of system.

Others belong to a “Rights Maintenance Organization” (or “R.M.O.”). These firms keep lawyers on staff as salaried employees (rather than as partners) providing “preventative” legal services. Costs created by needless or hopeless litigation are said to be more tightly controlled than is possible with conventional legal insurance arrangements, and this permits an R.M.O. to offer more coverage for a lower premium. Legal disputes between members of the same R.M.O. are very expeditiously handled internally. And when it is necessary to go to an outside court, the R.M.O. will pay the court fee (having arranged group discounts for its members in advance). On the other hand, the freedom to pick your own lawyer within an R.M.O. is necessarily limited, and this feature will not satisfy everyone. Another drawback is the fact that the client is more dependent on the R.M.O.’s determination that a lawsuit is cost justified than is a client who has coverage by Blue Coif/Blue Gavel.

Large retailers (like Sears) who sell insurance (Allstate), investment (Dean Witter), and real estate (Coldwell Banker) services also sell legal services, as do some bank and trust companies. Most offer in-house revolving charge accounts as an alternative to insurance and other kinds of credit arrangements. Law firm franchises dot the landscape with well-lit (some think garish) “Golden Scales of Justice” signs prominently displayed at street-side. Located in shopping malls and along busy streets, these firms advertise nationally and specialize in high volume (some say homogenized) practices, handling routine legal matters at standardized fees. (They accept Blue Coif/Blue Gavel and major credit cards.)

Such mass merchandising is not for everyone. Many clients still prefer the personal touch and custom-tailored work of solo practitioners who thrive by providing a more individualized approach. Some of these independent lawyers offer more specialized expertise than the chains; others try to be “generalists” and claim that they can spot interrelated legal problems that the lawyers who only handle certain kinds of less complicated legal matters often miss. Most large companies with commercial legal problems prefer the elegance, prestige, and economies of scale of large, traditionally organized high-rise law firms. (Some things never change.)

Other means of financing lawsuits besides insurance are also available. A few credit card companies offer extended payment plans when used for legal services. Contingency-fee-based entrepreneurs (who, like everyone else, can and do advertise widely) serve many who cannot or choose not to advance the money for legal services. (However, to help minimize the number of improvident lawsuits, some court systems have established rules restricting such practices in a manner similar to the rules established in our world by private stock and mercantile exchanges.) Such legal entrepreneurs are a bit more risk averse than they are in our legal system since, if they lose, their clients will be liable for the full legal expenses of the other side. Still, they provide an important service to many who could not otherwise afford legal services.

The judicial order mirrors the diversity of the legal profession as a whole. There are well-known and well-advertised national judicial centers, with regional and local offices, that handle the bulk of routine commercial practice. (These firms sometimes attempt to satisfy the fairness function by hiring lay jurors to decide simple factual matters.) There are small firms that handle specialized legal matters like maritime cases and patent or mineral disputes. (These firms almost never use lay jurors, but rely instead on panels of professional experts who receive retainers from the company.) And there are thousands of individual judges who hang out a shingle in neighborhoods after registering with the National Registry of Judges and Justices of the Peace, which requires of its members a minimum (some say minimal) level of legal education and experience. Many of these judges share the ethnic heritage of the community where their offices are located. Many of these judges are multilingual.

Individuals and businesses tend to avoid judges and judicial systems which lack some significant certification of quality. The Harvard Law School Guide to the American Judiciary, for example, is one useful source of information (but it is occasionally accused of being somewhat elitist). Who’s Who in the American Judiciary, published by a nonacademic publishing firm is another. Others prefer the annual guide published by the Consumers Union (it accepts no advertising). Still others prefer the Whole Earth Catalog of Judges (though it usually is a bit out of date). The Michelin Guide to International Law Judges uses a five-star rating system. Even with all of these publications providing information about the legal system that is unavailable to us in our world, newspapers and television “news magazines” never seem to tire of stories about judicial corruption. Such exposés sometimes lead to reforms by the various rating agencies.

To attract business most judges obtain enforcement of their judgments by subscribing to services offered by police companies. Otherwise only the moral authority of their rulings would induce compliance. Since all law enforcement agencies are legally liable to those who can prove to the satisfaction of a special appellate system that an erroneous judgment had been imposed upon them, no enforcement company will long maintain a relationship with an unreliable judicial agency or an unregistered judge. (Some judges even advertise to law enforcement firms and the general public: “Judgment affirmed or your money back!”) Until a few years ago, several large judicial agencies owned their own police company (more on this development in a moment).

Surprisingly, however, not every judge utilizes the services of an enforcement agency. The American Association of Adjudicators (AAA) does not promise enforcement but only a fair and just decision. All parties must contractually agree to binding adjudication in a form recognized as enforceable by other courts who do have enforcement arrangements and who will only on rare occasions fail to summarily honor an AAA adjudicator’s decision. Other judges don’t rely even indirectly on law enforcement agencies. In some discrete communities like the diamond trading community in our world whose judges apply a variant of Jewish law, social sanctions are all that are required to effectively enforce judgments.

The enforcement agencies themselves tend to specialize in what we call criminal or civil cases. The distinction between these areas is not considered to be a theoretical matter, but turns instead on the differing enforcement problems that necessitate a division of labor. Those firms specializing in “criminal” matters either catch criminals or provide work to those who may not be able to earn enough to satisfy the judgment against them if left on their own. The “civil” agencies must be adept at sorting through paper arrangements to locate assets that can be legitimately seized and sold to satisfy judgments. Occasionally, when a civil agency is done with a convicted defendant, the case must be turned over to a criminal agency to collect the balance. To be sure, conflicts between enforcement agencies have arisen. Most have been quickly resolved by the agencies themselves. Some have required other agencies to intervene.

In addition, all law enforcement agencies subscribe to one of two competing computer networks that gather and store information about individuals who have been convicted of offenses (in much the same manner as government police departments and private credit rating agencies share information in our world). Such services provide their clients with near instantaneous information about individuals and firms that they might be contemplating doing business with (something like the information that local Better Business Bureaus in our world claim to provide) and persons whom they might consider excluding from their property.

While it does not directly concern the legal order, some may be interested to learn that most common areas in this world are as accessible as private shopping centers and other commercial and residential developments are in ours. Smaller parks, however, tend to be for the exclusive use of those neighborhood residents and their guests who pay annual fees; larger parks issue single admission tickets and season passes. People who do not use the parks at all are free to spend their money on other goods and services.

Intercity highways charge tolls. Urban commuter highways issue license plates that vary in price (and color) depending on whether or not they can be used during “rush hours.” (Price rationing has eliminated regular traffic jams. For example, as with long distance phone service, usage between 8:00 p.m. and 6:00 a.m. is heavily discounted.) Tourists can obtain temporary permits at outlying toll booths. Some firms in this world are now experimenting with electronic systems that monitor highway usage with rates that can more precisely reflect such factors as distance, time, and dayand send monthly bills to users. With road use subject to market pricing, competing private train and bus firms seem to do better in this world than in ours, where road use is rationed by gas prices and a queue.

All new commercial and residential developments must build their own roads, and all leases and land titles include both contractual rights of access and stipulated maintenance fees. Ownership of formerly public streets has been assigned to road companies. Stock in these companies belongs to those who own commercial or residential property adjacent to the streets, and these property owners also receive contractual rights of access and egress. These companies have continued to merge and break up with one another until their sizes and configurations are economically efficient.

(Aside: What now follows is a worse case scenario offered only to show the stability of such a legal order. What makes the story particularly unlikely to occur in a non-monopolistic legal order is that its ending would be so easily foreseeable.)

Some years ago, one quite serious problem with the legal system did develop, however. About ten years after the monopoly legal system was ended, “TopCops,” one of the country’s largest law enforcement agencies (commanding about one-third of the national market in protective services) merged with Justice, Inc., one of the largest court systems. Many observers were quite disturbed by this development, and the other judicial companies and law enforcement agencies also became concerned. Since the merger violated no one’s rights, no legal action against this new institution could be taken. The fears, however, turned out to be well founded.

Initially the operation of this organization appeared to be unobjectionable, but after a time rumors began to circulate that when subscribers to TopCops came into conflict with subscribers to other agencies, Justice, Inc., sided with TopCops in some highly questionable decisions. In response to these rumors, both the Chief Judge of Justice, Inc., and the corporate president of TopCops denied that any lack of fairness existed, and they publicly promised an internal investigation. Still the rumors persisted and took a new turn. Officers of TopCops were said to have been accused of committing crimes, but Justice, Inc., rarely if ever found for their accusers.

Unbeknownst to the general public, in response to these rumors a secret task force was formed by a consortium of major rival enforcement agencies and court systems to devise a strategy to deal with the problem. (It was thought at the time that secrecy was important so as not to shake the faith of the general public in the legal structure as a whole.) The following policies were quietly adopted and implemented:

First, no subscriber of a court system belonging to the consortium would submit to the sole jurisdiction of Justice, Inc. This had not been the usual practice formerly because avoiding duplicate legal actions saved costs for both sides.

Second, all decisions of Justice, Inc., that were in conflict with a decision of a court belonging to the consortium were to be automatically appealed to a third court system according to the appellate structure established by the Cambridge Convention (of which Justice, Inc., was a member).

Finally, no decision of Justice, Inc., that conflicted with that of a member court would be recognized and enforced by a member law enforcement agency.

Smaller court systems and law enforcement agencies quickly got wind of the new policy and began emulating it. The immediate consequence of these actions was a drastic increase in the adjudication and enforcement costs incurred by Justice, Inc., and TopCops. A backlog of cases began to develop, and the rates of both companies eventually had to be raised. As a result, subscribers began switching to alternative services. A major faction of the board of directors of TopCops resigned when the board refused to adopt any significant reforms. Instead, the remainder of the board voted to sever their affiliation with the Cambridge Convention and began to search for alliances with other companies. (The true reason for this apparently irrational behavior was discovered only later.)

Several small enforcement companies and even one medium size company were induced to affiliate with TopCops, forming the Confederation of Enforcement Agencies. It was rumored that some had been intimidated to affiliate. These alliances, however, did little more than make up for the steady drop in both subscribers and revenues. At its zenith, the entire Confederation controlled about a third of the enforcement market about the same share of the market that TopCops alone had previously controlled.

In response, the Cambridge Convention formally severed relations with the members of the Confederation and went public with its factual findings. Notwithstanding, the Confederation’s public protests, its already jittery subscribers began to repudiate their contracts in large numbers. The Confederation first announced that it would no longer give pro rata refunds for subscription fees. When resignations nonetheless persisted, the Confederation announced that because they were a result of “unfounded panic,” it would not recognize them as valid until the “rumor-mongering” of the “Cambridge Cartel” ceased.

Then a new and frightening story broke. It was learned that the board members of TopCops who had pioneered these developments were secretly affiliated with members of the remnants of the old “organized crime syndicate.” Since all victimless crimes, crimes involving drugs, gambling, prostitution, pornography, and so on, had long ago been abolished, the syndicate’s power and income had drastically declined. It obtained what income it received primarily from organizing and attempting to monopolize burglary, auto theft, and extortion activities. Of course, even these activities were not as profitable as they had once been because preventative law enforcement efforts had greatly increased, and the corruption of law enforcement officers had become much more difficult. Hence the scheme to infiltrate TopCops was hatched.

A search by independent investigative journalists of the court records made available by the consortium revealed that the syndicate-affiliated criminals had received unjustifiably favorable treatment by Justice, Inc. With this news, the Cambridge Convention communicated the following extraordinary order to all law enforcement agencies and to the general public:

No order of Justice, Inc. is to be recognized or obeyed. Free protection is to be extended to any subscriber of TopCops who is threatened in any way. Any victim of a burglary or auto theft whose case had been adversely decided by Justice, Inc., is entitled to a rehearing, and all previously acquitted defendants in such cases are subject to immediate re-arrest and re-trial. All TopCops employees are to be placed under immediate surveillance.

With this action, Justice, Inc., was forced to close its operations because of lack of business. The remainder of TopCops’ honest subscribers repudiated their affiliation, and scores of burglars and auto thieves were placed under arrest. (Several of TopCops’ employees turned out to have been acquitted burglary and auto theft defendants.) Without a cash flow, and with the risk of personal liability now present, TopCops’ employees began quitting the company in very large numbers. Since TopCops had been a national organization, it did not have a single location that was strategically defensible, so there was little armed resistance to the law enforcement actions of the consortium members. In most instances, TopCops facilities were within a few blocks of other agencies. Within a matter of weeks, the TopCops organization had been disbanded and its assets auctioned off to provide funds to partially reimburse persons whose rights it had violated. Soon, offices formerly operated by TopCops were reopened for business as new branches of other established companies.

The entire unhappy episode had taken not quite six months to unfold, but some important lessons were learned. First, the initial euphoria surrounding the abolition of the archaic monopoly legal system was tempered. People realized that a non-monopolistic legal order was no panacea for the problems of law enforcement and adjudication. Diligence was still required to prevent injustice and tyranny from recurring. Second, the Cambridge Convention announced that in the future it would not recognize any court system created or purchased by a law enforcement agency. Court systems were still able to administer a small enforcement contingent, but strict guidelines were formulated for such arrangements. Third, organized burglary, auto theft, and extortion rings had been dealt a serious financial blow. (They still persist, however.)

Finally, after all the turmoil and talk of “crisis” had subsided, most people came to realize that their new legal order was far more stable than many of the “old guard” who had grown up under the ancient regime had expected it to be. The entire unhappy incident had unfolded in a matter of months and had been successfully and largely peacefully resolved. And this realization extended to members of the law enforcement community as well, making any future forays into aggressive activities much less likely than ever before.

Conclusion: Beyond Justice in a Free Society

We are now in a position to provide new answers to the three problems of power that were posed in Part I of this article.

Who gets the power? Those court systems whose jurisdiction people agree to accept and those law enforcement agencies to which people are willing to subscribe.

How do you keep power in the hands of the good? By permitting people to withdraw their consent and their financial support from those who are perceived to be corrupt or to be advantage-takers and letting them shift their support to others who are perceived to be better. The potentially rapid swing of resources and the ability of law-abiding organizations to organize their resistance to aggression can help assure that swift preventative measures will be smoothly implemented.

How do you prevent holders of power from receiving undue legitimacy? No non-monopolistic court would have any special legal privileges. Stripped of the legitimacy traditionally accorded rulers, private court systems would be constantly scrutinized to detect any self-serving behavior. Their legitimacy would depend solely on their individual reputations. While a tradition of integrity would heavily shape a reputation, an effective court system would need to ensure that its current practices and policies did not jeopardize its reputation in any way.

Two final questions remain to be addressed. First, how can we expect that the substantive rights and remedies suggested by a Liberty Approach will be the law adopted by a non-monopolistic legal order? After all, these rights go far beyond the simple abolition of monopolistic legal jurisdictions. As a practical matter the answer is quite simple. It is hard to imagine a society that did not adhere to some version of the rights and remedies prescribed by a Liberty Approach ever accepting a non-monopolistic legal order in the first instance. In other words, a societal consensus supporting these rights and remedies would seem to be a precondition for ending the monopolistic aspect of our legal system. Moreover, the inherent stability of a competitive system is likely to preserve this initial consensus. In the last analysis, where no consensus about liberty and individual rights exists, it is unlikely that a coercive monopoly of power will do much to prevent violations of these rights violations from occurring.

Second, while acknowledging that only a summary description of a Liberty Approach has been presented here, even the most open-minded reader is likely to have a lingering doubt. There may remain a sense that a Liberty Approach even if it operated as advertised, may somehow not be enough; that to achieve the kind of society to which we aspire requires more than the rights, duties, and legal order of a Liberty Approach.

In an important respect, I think that such a doubt is entirely justified. A Liberty Approach alone is not enough to ensure that a good society will be achieved, a world with culture, with learning, with wisdom, with generosity, with manners, with respect for others, with integrity, with a sense of humor, and much more. A Liberty Approach neither includes such values in its prescriptions nor seems to assure that by adhering to its prescriptions such a world will be attained. So what does a Liberty Approach have to offer to those who share these values?

Lon Fuller once distinguished between two moralities the morality of aspiration and the morality of duty:

The morality of aspiration is the morality of the Good Life, of excellence, of the fullest realization of human powers. [A] man might fail to realize his full capabilities. As a citizen or as an official, he might be found wanting. But in such a case he was condemned for failure, not for being recreant to duty; for shortcoming, not for wrongdoing.

Where the morality of aspiration starts at the top of human achievement, the morality of duty starts at the bottom. It lays down the basic rules without which an ordered society is impossible, or without which an ordered society directed toward certain specific goals must fail of its mark. It does not condemn men for failing to embrace opportunities for the fullest realization of their powers. Instead, it condemns them for failing to respect the basic requirements of social living.

A Liberty Approach, if correct, is a morality of duty. It purports to specify what justice is and how it may best be pursued. It is not an entire ethical system for achieving a good society. Adherents to a Liberty Approach seek to identify “the basic rules without which an ordered society is impossible.” They believe that to legally require any more than this, to attempt to enforce a morality of aspiration as we would a morality of duty, will ultimately undermine both projects. They do not deny that more than justice is important. Nor do they deny that the pursuit of justice will be influenced by the extent to which people adhere to a morality of aspiration. But they believe no less firmly that the framework of justice provided by a Liberty Approach offers humankind the best opportunity to pursue both virtue and justice.

If the morality of aspiration is not enforced by a coercive monopoly in a Liberty Approach, then what kind of institutions would enforce it? In a society that rigorously adhered to a Liberty Approach, the so-called “intermediate” institutions that have traditionally bridged the gap between individual and State schools, theaters, publishers, clubs, neighborhood groups, charities, religious and fraternal groups, and other voluntary associations would continue to serve their vital function of developing and inculcating values. But in a completely free society, they would do so unburdened by the forcible interference of third parties that is made possible by an adherence to the Power Principle. Because they are noncoercive, these institutions, like the market process, are inadequately appreciated by many. But it is no coincidence that totalitarian regimes invariably strive to regulate, co-opt, subvert, and ultimately to completely destroy these institutions.

Are such voluntary institutions enough? We have no way of being sure. But, as I have repeatedly stressed here, a system based on the Power Principle offers no guarantees either. Even an ideally wielded coercive monopoly of power is only as “good” as the persons wielding the power. But power corrupts those who wield it, and virtue is its first victim. Our values come not from coercion but from the exhortations and examples set by countless individuals and groups.

The rights, remedies, and legal order specified by a Liberty Approach will not end all injustice. There will always be injustice, just as there will always be corruption and advantage-taking. But although a Liberty Approach offers no guarantees, it does enable us to better pursue justice in a free society by providing a clear idea of what we are pursuing and how we may best pursue it without undermining our precious freedom in the process. For those who believe in liberty and justice for all, a Liberty Approach may be an idea whose time has come.

by Randy E. Barnett
Number 82 – Oct 1996

[Editor’s Note: Because of its length, the second part of this article will appear in the next issue. The following excerpts were taken from the author’s “Pursuing Justice in a Free Society: Part I, Power vs. Liberty,” 4 Criminal Justice Ethics, Summer/Fall 1985, pp. 50-72. Footnotes have been deleted, although they appeared copiously in the original. The author is currently the Austin B. Fletcher Professor, School of Law, Boston University. Reprinted by permission of the author and The Institute of Criminal Justice Ethics, 989 Tenth Avenue, New York, NY 10019.]

The Power Principle specifies that there must be:

(a) one agency per unit of geography (a “monopoly”)

(b) that is charged with authorizing the use of force (“power”) and that

(c) the monopoly itself must be preserved by force (“coercively”).

Hence what I call the Power Principle involves a belief in the need for a “coercive monopoly of power.”

The Justifications of Power

The Power Principle may rest on any number of different grounds. In fact, most differences among competing political philosophies concern only disputes about the way in which the belief in the need for a coercive monopoly of power should be justified. However numerous these justifications may be, they seem to take two general forms: negative and positive.

1. The Negative Justifications of Power

Power for negative purposes can be identified with the Right. This approach specifies that a coercive monopoly of power is needed to preserve “civilization” and prevent social chaos; that without a coercive monopoly of power, people will give in to their animalistic side and engage in a social “war of all against all.” Thus, it is argued that, to avoid such social degeneration, a central authority must outlaw certain kinds of conduct: The forcible interference with person and possessions should be prohibited, to be sure, but also included should be sexual conduct (for example, prostitution, pornography, homosexual conduct, and extramarital sexual relations), conduct that encourages “anti-social” beliefs (for example, religious “cults,” unacceptable books and music, manners of dress, and public assembly), and behavior that is “destructive of values” (such as drug and alcohol consumption, gambling, pool rooms, video arcades, and rock and roll).

The image that best describes the world the Right sees as ultimately resulting from the absence of a coercive monopoly of power is one in which people are fornicating in public places with heroin needles hanging from their arms. To prevent this there must be a boss: a President, a Congress, a Supreme Court, or a Moral Majority.

2. The Positive Justifications of Power

The power of the Left is to ensure some positive concept of justice. According to this view, resources must be distributed among individuals in society according to some formula or, to use Nozick’s term, a “pattern.” Resources must be held, for example, according to some criterion of need, desert, or desires, or all holdings must be “equal” or “efficient”that is, distributed to their highest valued use. It is argued that without a coercive monopoly of power, actual distributions of resources will not be in accordance with the mandated pattern or principle.

Thus, in addition to prohibiting the forcible interference by some with the person and possessions of others, we must “regulate” economic transfers between individuals (e.g., by labor regulations, antitrust regulations, price or rent controls, and licensing schemes in various occupations), other social interactions (e.g., by quotas and affirmative action), consumptive activity (e.g., by food and drug regulation and the regulation of automobile design), and above all we must redistribute income (e.g., by tax and “welfare” laws). The image that best describes the world that the Left sees as resulting from the absence of a coercive monopoly of power is one in which unreconstructed Scrooge-like characters enslave or exploit helpless Cratchets and Tiny Tims at below subsistence wages in small, cold (or hot), dark rooms. To prevent this from happening, there must be a boss: a President, a Congress, a Supreme Court, or The People.

I have deliberately drawn each of these views as broadly as possible, so as to include most people somewhere. While ideologues exist on the Left and the Right, in the real world most people are “in the middle” in that they hold some mixture of these two general views. None of this is to say that all of the policies described above are unjustified or wrong or that these categories are inviolable. (Notice that the positive concern for efficient allocation of wealth is now associated with some on the Right. And recently something amounting to a new wave of puritanism on the Left can be observed emanating from the feminist movement.) Rather, the point is (a) that the belief in the correctness of these policies usually results from subscribing to one of these world views or some mixture of each; (b) that both positions view the natural result of individual choice to be bad; and (c) that both views arrive at essentially the same means, a coercive monopoly of power, to pursue their fundamentally different ends.

Problems with the Power Principle

So what? What is wrong with implementing a coercive monopoly of power to solve the myriad problems of society? Some important answers to this question lie beyond the scope of this article or the expertise of its author. However, the Power Principle contains certain inherent defects that, while not unknown, are normally ignored, probably because a coercive monopoly of power is so widely thought to be necessary that any difficulties it creates, even those of the most fundamental and serious nature, must simply be accepted as inevitable problems of social life. I shall here consider four difficulties: The first three are practical while the last is a moral one.

1. Practical Problems with the Power Principle

Believers in the Power Principle base their support on some version of the following factual assumption: Human beings are either essentially corrupt or corruptible, or they will, if given a chance, try to gain unfair advantage over each other. The sources of this belief are as varied as the believers. They range from the biblical notion of “original sin” to a “scientific” view of individuals as ruthless welfare maximizers. Whatever the source, adherents to the Power Principle conclude from this assumption that there must be a coercive monopoly of force to prevent this attribute of human behavior from creating the various social problems described in the previous section.

The practical problems with the Power Principle arise not because this assumption about human conduct is necessarily false. In truth, it is a quite plausible account of one tendency of human behavior. Rather, problems arise because the Power Principle is incapable of solving the problem for which it was invoked.

Indeed, the Power Principle cannot work because of the very problem it purports to solve.

An understanding of the practical problems with the Power Principle must begin with the observation that adherents to the Power Principle always invoke it for some purposes, but not for all purposes. They invariably claim that only certain purposes and not others can and should be effectively pursued by means of a coercive monopoly of force. (Only a committed totalitarian would maintain that such a monopoly should be used for anypurpose whatsoever.) The problem for adherents to the Power Principle, however, is to show how the monopoly, once it is created, will be used to achieve only the “appropriate” ends. Not only has no society that has resorted to the Power Principle ever been successful at so limiting its use, virtually all have ended in tyranny; there are several good reasons why no society could ever be successful in the long run.
Who gets the power? Let us assume that it is true that human beings are either essentially corrupt or corruptible or that they will, if given a chance, try to gain unfair advantage over each other. Advocates of the Power Principle are immediately faced with a difficulty: Who is to get the power? Whoever it is must be a human being, so whoever is put in charge will be (by assumption) “essentially corrupt or corruptible or will try to take unfair advantage over others.”

It would seem, therefore, that the proposed solution to the assumed problem is nothing short of folly. For the human beings who are put in control of the monopoly would have a far greater capability for corruption and advantage-taking than they would have as ordinary citizens. Whatever corruption or advantage-taking these people engage in is likely to be far greater than they would be able to engage in if deprived of their power. And by granting some a capability for greater gains from corruption and advantage-taking, the incentives for such conduct are greatly increased, thereby increasing both its frequency and its severity. In other words, given their capacity for corruption and advantage-taking, bad human beings are more dangerous with power than without it. The Power Principle, then, appears to immediately aggravate the very problem it was devised to solve.

Even if we soften the starting assumption so that it now specifies that only some human beings are essentially or potentially corrupt and then posit that only the good human beings will be put in charge of the monopoly, we still need a practical way of distinguishing the good people from the bad people. We have to specify those people who are to decide who gets the power and how to obtain and disseminate the information needed for them to distinguish the good from the bad. Some might argue that electing rulers for fixed terms is the best way to make such decisions. Even assuming that this method produces the correct initial allocation of power, however, it runs afoul of several further problems.

How do you maintain power in the hands of the good? Let us assume that the problem of who gets the power is somehow solved; that a way is discerned to select only (or mostly) the good people to hold power. Perhaps an election is held and the electorate makes the correct choice among potential rulers. A second practical problem now arises: How do we keep the evil people from eventually wresting control of the monopoly from the good? Remember we started with the assumption that all or perhaps many people are corrupt or will try to take unfair advantage over others, for which reason we need a coercive monopoly of force. However, the solution provided by the Power Principle solution creates an enormously attractive target of opportunity for those people in society who wish to take advantage of others, which might be called the “capture effect.”

Maybe some of the bad people excluded from power will be content to try to privately exploit their fellow human beings. Inevitably, however, at least some of the more entrepreneurial of these people will recognize the enormous profit potential that would be derived from controlling the monopoly and publicly exploiting others. All that would be required to reap these profits is a strategy for capturing positions of power from those who currently possess it. The number of such strategies would be great. One obvious strategy that has been employed often especially in societies where rulers rule for indefinite periods, is simply to take over the monopoly by force. This strategy, however, entails considerable risks for those who would employ it. A much safer approach would be to assume the posture of a good person and get into power in a legitimate way (assuming that some such option exists). Or, alternatively, good people in power could be corrupted through bribery.

This last tactic reveals yet another very serious flaw in the power approach: the “corruption effect.” Power itself has a corrupting influence. People who start out as good can become advantage-takers simply because, as monopoly holders, the temptations to do so are great and the risks of being caught are small. So, even assuming power has been allocated to good people, these people may not remain good for long.

The inherent instability of the Power Paradigm can be analogized to that of the policy of mutual assured destruction. Once a sufficiently serious mistake is made, the game is up. With nuclear weapons we risk the destruction of the planet. With the Power Paradigm we risk the institutionalized and legitimized misuse of power. Given the perquisites of power, bad rulers can be locked in place requiring nothing short of a revolution to remove them. What is the likelihood of forever making the correct choices in this winner-take-all game of picking rulers?

Another, most serious problem of a system of elections is that it must give rulers a very short-run perspective. Rulers, especially those who rule for fixed terms, have no way of capturing the long-run benefits of their policies. Good rulers will not survive to see the long run unless their policies appear to be working in the short run. Bad rulers must plunder while the plundering is good.

Finally, the balloting solution to the problem of who gets the power is itself undercut by our initial assumption that human beings are essentially corrupt or corruptible. For only human beings vote. A unanimous vote is a practical impossibility but, if anything less than unanimity is required to elect a ruler, the majority can (sooner or later) be expected to vote out of corrupt or advantage-taking motives. Saying that a constitution will solve this problem the problem of “the tyranny of the majority”is also unrealistic. Judges must interpret and enforce a constitution, and judges are also human beings, with the result that they would form a “tyranny of the judiciary.”
The legitimacy of the power holders. Having failed to solve the problem of corruption and advantage-taking, the Power Principle exacerbates the problem still further by what might be called its “halo effect.” A coercive monopoly of power would not be (peacefully) established unless most people in society were convinced that the creation of the monopoly of power is the right or expedient thing to do. Therefore, those who wield this power will possess not only power but something that may be more helpful to their pursuit of advantage-taking than power alone could ever be: They will have legitimacy. That is, their use of power will be perceived by most to be at least presumptively justified.

This “halo effect” obviously makes the assumption of power by the wrong people even more dangerous than just giving them a monopoly would be, because, for a variety of reasons, many good people will hesitate to oppose the “duly constituted authority.” Perhaps they do not know the facts of the situation and therefore presume that those in power are correct, or perhaps they can see some personal advantage to a particular use of power against another, or perhaps they fear the consequences of “civil disobedience.” Whatever their motives may be, this natural conservatism greatly increases the potential for corruption and advantage-taking .

It can be seen from this brief discussion that the Power Principle cannot solve the question of who gets the power without setting up an infinite regress (of sorts) of enhanced incentives for corruption and advantage-taking. The reason for this is that the weakness of human beings is exacerbated by a monopoly of power, but there is no other species that can be put in control of the monopoly. Therefore, one must forever propose “higher” authorities to ensure that subordinate authorities remain honest. One could posit that God (or a group of gods) would divinely rule the human rulers. I shall not here consider the practical problems with this approach.

The source of the unending problem with the Power Paradigm is its hierarchical and vertical approach to the problem of corruption and advantage-taking. No matter how high you build your hierarchy of power, there is simply no one to put on top of the hierarchy who will not himself be potentially corrupt. The answer to human corruption must, therefore, lie elsewhere. The next version of the Power Paradigm, though flawed, suggests that a more promising avenue is a non-hierarchical or horizontal approach to power.
Federalism and the Separation of Powers as a solution to these problems with the Power Principle. One attempt to deal with the problems created by the Power Principle is to create an oligopoly or a “shared” monopoly of power. This scheme preserves a monopoly of power but purports to divide this power among a number of groups, each having limited jurisdiction over the others. So, for example, there might be a division of powers between groups of people known as “state officials” and others called “federal officials.” Or there might be a separation of powers between some people called “legislators” and others called “judges” or “executives.”

The object of such schemes is to create so-called “checks and balances.” This is a good idea. The problem with the Power Principle is not the recognition of the legitimate use of force or power itself. Those who reject the Power Principle are not necessarily pacifists, that is, they do not reject any right to use force under any circumstances. Rather, the root of the problem with the Power Principle is its adherence to a monopoly allocation of power with all the attendant problems discussed above. It is this that the Federalist and the Separation of Powers strategies are trying to address.

A formal separation of powers is unquestionably an improvement over other versions of the Power Principle, witness the experience of the United States, but eventually similar results are reached (though these results may not develop as quickly or be quite as severe.) This is because this scheme, for all its advantages, still preserves the unearned legitimacy of power and coercive barriers to entry. However many power centers are created, they remain in control indefinitely, short of a revolution.

Even in the beginning, since each has the other by the throat, no one is willing to squeeze too hard. Eventually entrepreneurs of powermaster politicians, judges, executives, or outsiders called “special interest groups”figure out a way to teach those who share the monopoly that it is in the interest of each to cooperate with the others in the use of force against those who are outside the monopoly. This process may take some time, but gradually what is originally conceived of as “checks and balances” eventually becomes a scheme more aptly described as “you don’t step on my toes and I won’t step on yours” or “you scratch my back, I’ll scratch yours.” And, when this result is reached, the Power Principle continues to provide these rulers with the legitimacy that makes corruption and advantage-taking all the easier.

The separation of powers strategy is a good idea, but one that is not taken quite far enough. What is needed is the recognition of genuinely separate powers within the same geographical area, a horizontal division of power with as little unearned legitimacy attached to each agency of force as possible. Such a system would provide real checks and balances. How such a system might function will be discussed in Part Two of this article.

2. The Moral Problem with the Power Principle

The moral problem with a coercive monopoly of power can be briefly described: The Power Principle posits a fundamental inequality of human beings. Those in power are thought to have qualitatively different rights than those who are not, that is, rulers have rights that subjects may never possess. By virtue of their monopoly status, at the very least they allegedly have the right to put competitors out of business, a right that is denied to other so-called “private” citizens. And most power schemes accord them the right to collect “taxes” to fund their activity, that is, to seize the property of others by force without the others’ prior consent or wrongdoing, another right that is denied all people. Many grant them the right to obtain “conscript” or semi-slave labor for certain purposes such as war-making or jury selection.

Some schemes even accord those in power such arcane rights as the right to specify that people must accept monopoly script in return for their labor or property, known as “legal tender” laws, and the sole right to run certain businesses, such as the delivery of writings and packages, the driving of buses, or the picking up of garbage. Other schemes accord them the right to grant monopoly “franchises” to sell grain or to provide television or telephone services. Some give them the right to restrict access to certain occupations. Anyone who becomes a taxi driver, lawyer, or hairdresser without the approval of those who hold the monopoly may be fined or imprisoned. The potential that these powers have to induce the corruption and advantage-taking described above is here quite obvious.

In the next section I will try to give content to the claim that all persons have rights and also trace what the contours of these rights might be. But even if such a proposition can never be affirmatively demonstrated (although I am not suggesting that this is in fact the case), those who advocate a coercive monopoly of power to solve the problem of corruption and advantage-taking bear a heavy burden of proof. They must demonstrate that some people rightly hold power over others. The pursuit of this justification has spanned centuries, indeed, millennia of political theory. Thus far this claim remains unjustified. No moral theory attempting to justify a legal hierarchy among healthy adult human beings, such theories as “divine right,” “social contract,” or “natural law” has yet succeeded in doing so.

3. Conclusion

Adherents to the Power Principle have devised a rather peculiar way of dealing with the problem of human corruption and advantage-taking. They advocate giving some human beings a monopoly on the use of force, thereby elevating some human beings to a higher moral and legal status than others.

But no one can be sure to whom to give this monopoly. And, assuming that the initial allocation is made correctly, the alleged solution creates an irresistible target of opportunity for anyone in society who wishes to exploit another, and who is clever or ruthless enough to devise a way of capturing the monopoly that has been created. The monopoly also poses grave temptations to the good to become less than good, in short, the alleged solution to the problem of corruption is itself a most potent corrupting influence. Finally, in this scheme those who possess the monopoly, as a practical matter, are presumed to employ it properly, thus enhancing the ability of some to use the monopoly to take advantage of others.

While the shared monopoly concept gradually succumbs to the same problems as the pure monopoly concept, it succeeds both in highlighting the genuine problem with the Power Principle, the creation of the coercive monopoly of force, and the genuine solution to the problem of corruption and advantage-taking: a non-monopolistic system of force which could provide genuine checks and balances, but of a far more sophisticated variety than can be provided by any constitution. And the moral problem of inequality inherent in the Power Principle points the way to another facet of a genuine solution: an effort to craft a scheme of rights and obligations that all people can equally claim.

One must be careful to avoid attributing historical inevitability to the grave problems posed by the Power Principle. The argument presented here is that the Power Paradigm is inherently unstable and pernicious, as compared with a non-monopolistic legal order that will be described in Part Two of this article.

by Carl Watner

Number 80 – June 1996

Introduction

The impetus for the research behind this article was a Spartanburg, S.C. HERALD-JOURNAL editorial of June 25, 1995 (p. A15) headlined “Zoning isn’t a loss of rights: zoning is a protection rather than an elimination of property rights.” In “double-think” language right out of 1984, the writer justified zoning controls because “zoning prevents surprises.” According to the editorial, without zoning there is nothing to prevent the value of one’s property from being diminished when a neighboring property is suddenly developed as a junkyard or landfill. The author of this piece hadn’t realized that there are ways of avoiding land use surprises on the free market, such as deed restrictions, privately planned developments, and purchase of buffers and development rights. Furthermore, the writer didn’t understand that in a free market, it is not monetary values that are guaranteed, but rather the right to use one’s property peacefully. The value of your property is a function of what other’s will pay for it. No political statute can change the law of supply and demand.

As I began reading about the history of land use controls in the United States, I discovered that one of the justifications behind early 20th Century zoning laws was that “zoning protected property rights.” New York City’s Fifth Avenue merchants wanted to be protected from the invasion of the garment industry, and San Francisco businessmen wanted to be insulated from the spread of Chinese laundries throughout their city. Probably few, if any, of the early supporters of zoning understood that zoning was actually a violation of property rights: that political controls over private land use constituted a gross violation of the free market concept. Researching the topic further, the same conclusion was constantly buttressed: total private property rights have never existed in this country. There have always been political controls on the use of one’s land and property. These laws have always gone beyond the common law rule which recognized that one should not use one’s own property in a manner to physically invade another’s property. These political controls have included nuisance and public health laws, taxes on the value of real property, and the legitimization of property confiscation for “public use” via the Fifth Amendment. In short, government “protection” of property rights is one of those political myths which the government uses quite effectively to legitimize its conquest over us. Governments and property rights are like oil and water; they don’t mix. Despite all the propaganda and rhetoric to the contrary, governments can only negate property rights, not protect them.

Up to this point, my research had been primarily negative, focusing on the statist aspects of zoning. Voluntaryism, however, is a philosophy of living peacefully with others; the advocacy that all human affairs should be by mutual consent. In the absence of a coercive government, how would the problems addressed by nuisance and zoning laws be handled on the free market? Were there good historical examples of common law rules which provided the basis for peaceful land use and development, without neighboring property owners feuding with one another? Yes there were, and prime examples of voluntaryist land use controls were found in such private developments as Levittown, N.J., Reston, Virginia, and Columbia, Maryland (developed by The Rouse Company). In Columbia during the early 1960s, The Rouse Company bought over 15,000 acres of land between Baltimore and Washington. This was done without the use of eminent domain or resort to condemnation proceedings. Nevertheless, there were five “holdouts,” property owners who would not sell. Imagine what would have happened to these property owners if The Rouse Company had been a government entity. Despite these objectors, Columbia became one of the largest and finest private communities in the world. Everything proceeded on the basis of mutual consent. Rouse purchased the land from willing sellers, placed deed restrictions upon its future use, and then resold the land to willing buyers. In short, I discovered that there were various ways that private communities have provided “public goods” without interference by coercive governments. Thus, the purpose of this paper is not only to explicate the negative history of political zoning, but to shed light on the positive, voluntaryist approach to private land use controls.

Zoning: A Police Power

There are basically four ways that governments exercise power and control over “privately owned” land. Zoning is a subcategory of one of them. The four methods are: 1) the power of eminent domain (the power of the government to take title to private property by paying a compensation of its own determination); 2) regulation of land use via zoning and nuisance laws which are derived from the state’s police power to protect the public; 3) taxation of land; and 4) government expenditures on infrastructure – such as its provision of water, sewerage, and highway systems. Although the last two modes of government operation are as pervasive (and pernicious) as the first two, they are not a matter of concern in this article.

What distinguishes the power of eminent domain from the power of regulation is whether or not government takes title to the land in question. When eminent domain is exercised, the private land owner is dispossessed of the title to the land and is offered some monetary compensation. When a government agency builds an airport runway, it will condemn, and must pay for, the land upon which the runway is situated. Owners of land near the airport will be prevented from building high-rises on their land so that airplanes may approach the runway. Both the original owner of the condemned land and the adjacent property owners lose property rights. In the former case, the original owner loses all right and title to the property in return for whatever compensation the government awards; in the latter, the owner retains title. The portion of his building rights that have been forfeit is not a compensable loss.

Since the power of eminent domain has been discussed in an earlier issue of The Voluntaryist (see Whole No. 32, “Property Rights or Eminent Domain?”) no extended discussion is necessary here. However, a few additional comments about the contradictory nature of government in the United States are in order. In contrast to most of the constitutions of the fifty states, there is no explicit grant of the power of eminent domain in the United States Constitution. Nevertheless, the courts have always viewed its exercise as an inherent attribute of the federal government’s sovereignty. Thus the Fifth Amendment to the Constitution legitimizes the exercise of a power which is not even mentioned in the document it amends. To claim, as the Fifth Amendment does, that private property shall not be taken for public use without just compensation, means that property rights are not absolute and that the government may take property from an owner without his or her consent. The fact that compensation is to be offered is beside the point. (How can the compensation be termed “just” if the original owner does not want to sell?) Any time that the power of eminent domain is exercised, a theft has occurred. The government has stolen land from a person unwilling to sell.

The constitutions of the fifty states are also the basis for the exercise of each state’s police power, and all “private” property in the United States is held subject to the police power. The police power refers to government actions for “the promotion and maintenance of the health, safety, morals, and general welfare of the public. It is grounded in the belief that an overriding public interest of general, widespread benefit asserts a superior claim over private property. Zoning is a perfect example of this principle. When the police power is applied to all citizens and landowners in like manner for broad public benefit, no monetary compensation is due those whose property is ‘used’ or taken.” (For example, the police power is the basis for state seizure and slaughter of diseased animals, and the seizure and destruction of buildings in order to put out large fires.) Since the federal and state courts have consistently upheld zoning as a proper extension of the police power, they have also determined that governments need not be responsible for changes in the value of property due to zoning laws. In other words, the loss of potential market value caused by zoning classifications, does not impair the validity of zoning legislation or impose any obligation upon the legislature to compensate the land owner. Supreme Court Justice Oliver Wendell Holmes summed up the statist view of the police power in two different cases. In 1922, in the Pennsylvania Coal Case he wrote that, “Government could hardly go on if, to some extent values incident to property could not be diminished without paying for every change [caused by] the general law” (269 US 393 at 413). Six years later he wrote: “Property must not be taken without compensation, but with the help of a [legal] phrase (the police power) some property may be taken or destroyed for public use without paying for it, if you do not take too much” (277 US 189 at 209).

Zoning may be defined as the method by which the legislature of a political jurisdiction exercises control over land by dividing or classifying it into certain areas and then subjecting it to particular planning restrictions. Zoning laws now control such matters as how the land may be used (residential, commercial, agricultural, etc.), the type of buildings that may be erected, the size of lots, the width of streets, the height of buildings, and setback requirements (minimum distance of buildings from property lines). In some municipalities there is still no formal zoning, even today. Nevertheless, in a city like Houston, Texas, where this is the case, there are subdivision controls, a minimum housing ordinance, a building code, and seventeen separate land-use ordinances covering things such as trailer parks, rendering plants, and commercial landscaping. In other areas without zoning, there are performance standards. For example, if you have a junkyard on your land, the local government requires you to screen it off from public view. In most cases, even if there is no zoning, these government regulations amount to the same thing: government control over privately owned resources. In other countries, this is something we call fascism. In short, zoning “permits” the owner to retain title to his land, while dictating the owner’s “right” to do certain things if he wishes to develop or use the land.

In areas where zoning only permits one use, government policy effectively dictates how the land may be used, if the land owner is to develop the property. The free market way of accomplishing this would be for neighbors and/or adjacent land owners to negotiate a private covenant under which the property owner in question would agree to forego certain future usages or to restrict the property to a specific use in the future. The difference between this free market approach and that of legislative zoning is that on the free market a person’s neighbors would not be able to force the owner to make such promises. Under zoning legislation they do; the majority uses the police power to impose their view of development on the neighborhood. If a landowner uses his land in a manner not consistent with the law, he will either be fined, jailed for contempt (until such time as the landowner agrees to cease and desist the illegal usage), or the land itself will be seized and confiscated by the public authorities in their efforts to end the illegal use. Ultimately, the police power means the courts will uphold the right of the police to kill a person who refuses to abide by the will of the legislature .

Nuisance Law versus Zoning

The Latin legal maxim, ‘Sic utere tuo ut alienum non laedas’, epitomizes the common law approach to land use controls: “Use your own thing so as to not harm that of another.” At English common law, the basic limitations on the use of property were incorporated in the law of nuisance, the action that a landowner could bring if his right to the use of his land was being interfered with. Thus the common law of nuisance was used to resolve land use disputes. At common law, a nuisance was defined as “the substantial interference with the plaintiff’s use of his land by the unreasonable conduct of the defendant.” Nuisances extended to “everything that endangered life or health, gave offense to the senses, violated the laws of decency, or obstructed the reasonable and comfortable use of property.” The general principle (based upon the idea of homesteading, or “a prescriptive easement,” as the common law terms it) was that land use prior in time would prevail over latter ones. For example, if neighbors of a landfill found its operation offensive, they would only be able to prevail against it as a nuisance, if their housing development predated the development of the landfill. If the landfill was in operation before their homes were built, its operation would not be prohibited or be deemed a nuisance. Thus, noise, smoke, and offensive odors are not necessarily, in and of themselves, nuisances. Under certain circumstances, one may have an affirmative easement to maintain a nuisance on one’s own land (either by “grant, implication, or prescription”).

During the late 19th Century, the State and its judicial courts took over the law of private nuisance and created a new concept of “public nuisance.” This became the bridge that linked the law of private nuisance to the 20th Century law of zoning. In bringing a suit of private nuisance, one or more affected landowners are generally the plaintiffs. In a public nuisance suit, a public officer (zoning or health official) brings suit to abate a nuisance that affects a large number of people. A public nuisance is further removed from that of private nuisance when legislative bodies declare certain kinds of land use to be a public nuisance, even though there are no harmful consequences traditionally regarded as a nuisance. An example of this might be the operation of a hair salon in one’s home, thus violating a law which prohibits businesses in a residential district.

The key regulatory device for the enforcement of zoning regulations is the requirement that all new construction or new land uses (and even substantial rehabilitation of existing structures) may not be undertaken until official authorization is given. Zoning or building permits must be obtained before anything is done on the land. Failure to obtain a permit, or failure to comply with the zoning or building codes automatically makes the property a public nuisance. Building codes include regulations regarding the types of materials used in construction, fire safety, and the use of gas, water, and electricity within the building. In addition, housing codes often exist, and are frequently made retroactive. Such codes set out minimum requirements for any buildings in which human beings reside, whether or not newly constructed. Although it may not happen often, people have been evicted from their habitations for failure to meet the specifications of a housing code. At other times, buildings have been torn down by the political authorities because their owners would not obtain building permits or bring their buildings into compliance with the building code. Zoning codes may be applied retroactively, so as to outlaw preexisting, nonconforming uses. The police power of the state, exercised under the guise of zoning, building, and housing codes, is one of the most coercive elements of political government.

A Very Brief History of Zoning

The record of land use controls in the Anglo-American legal system is one of the triumph of the State over private property. The English Parliament, as early as 1588, and again in 1592, passed national land use legislation regarding the size and location of housing. In 1606, in “The Case of the King’s Prerogative in Saltpetre,” it was decided that a private landowner was obligated to build military fortifications and trenches upon his own land, at his own expense. The “King’s prerogative” or “police power” mandated that his efforts were noncompensable since they were in the “public interest” and for “the general welfare.”

In the American colonies, a similar ideology prevailed. Colonial land controls took various forms, from the requirements that the colonists construct fences and plant shade trees, to the restrictions in Boston in 1692 that certain industrial uses be confined to particular areas of the city. New York City in the same period approved legislation prohibiting animal slaughterhouses altogether. Government controls existed throughout the 1700s, but came into their own during the 19th Century. In 1811, the New York City Commissioner’s Land Plan compulsorily divided the city into lots 25′ x 100′. In 1826, New York City authorities prohibited a church from using its burial ground. “The church sued; and the court, citing protection of community health, upheld the law.” During the 1860s, tenement housing reform originated in New York City, where the first regulations outlawing public privies and prohibiting basement occupancy were passed in 1867.

A city law of Modesto, California in 1885 was probably the first modern zoning ordinance in this country. It prohibited the establishment of public laundries or wash houses in certain parts of the city. A similar situation existed in San Francisco, where city authorities objected to the lack of drainage, and the nuisance resulting from the laundry water being turned onto city streets. There, laundries were prohibited, too, unless licensed by the city. On December 28,1885, a Chinese laundryman, Yick Wo, was arrested and prosecuted for operating an unlicensed laundry. The case was appealed to the Supreme Court of California, where his conviction was upheld. Other California litigation, as well as cases decided by the United States Supreme Court, “established the right of municipal authorities to restrict practically any kind of business, the operation of which might be a menace,” or a threat to public safety, sanitation, or morals within city boundaries. Under this reasoning, the operation of livery stables was restricted in St. Louis in 1893.

By the beginning of the 20th Century, the agitation for more comprehensive land use controls began. In 1904, Baltimore City passed an ordinance limiting the height of city buildings. Similar laws were passed in Indianapolis, New York, and Boston, where height districts were created that covered the entire city. The most fully zoned city of the time was Los Angeles, where district zoning went into effect in 1909. This legislation, upheld by the state courts in 1911, “established the right of the city to regulate any lawful business, by holding that the power to regulate the carrying on of certain lawful occupations in a city includes the power to confine their operation to certain limits, whenever such restrictions may reasonably be found to protect the public health, morals, safety, and comfort.” The Los Angeles law also included a retroactive provision, under which nonconforming uses could be terminated.

By 1913, homeowners and real estate men in Wisconsin, Minnesota, and Illinois had lobbied their respective state legislatures to empower cities of certain size to “establish residential districts from which manufacturing and commercial establishments would be banned.” In New York, the cities of Syracuse and Utica legislated “residence districts” in which buildings other than single or two-family dwellings were prohibited. In December 1913, another official New York City document was released which supported zoning (REPORT ON THE HEIGHTS OF BUILDINGS). In 1914, the New York State legislature amended the charter of New York City to permit the City’s Board of Estimates to zone the city. It took two years of further agitation by the Fifth Avenue merchants before a zoning resolution was passed on July 25, 1916. (The Fifth Avenue Association, representing those who owned or occupied the city’s most expensive retail land, “demanded that the city protect their luxury block from encroachment by the new tall buildings of the garment district.”)

During the first two decades of the 20th Century, business and professional groups were instrumental in bringing about local zoning ordinances. For example, the Los Angeles Realty Board was highly supportive of the first city-wide zoning in their city. J.C. Nichols, a nationally prominent builder and developer from Kansas City who relied upon private deed restrictions in his residential subdivisions, pointed out that this was not enough. He said that residential developers required municipal assistance (in the form of zoning laws) to control unregulated development around their privately created communities. Other architects, city planners, engineers, and real estate men all believed in the desirability and “necessity to bring some order out of the chaos that has resulted from the anarchistic development of our cities.” Such groups as the National Association of Real Estate Boards, the Chamber of Commerce of the United States, the American Society of Civil Engineers, the American Society of Landscape Architects, and the National Housing Association all banded together to push zoning. Zoning (and building codes) not only eliminated many of the problems traditionally associated with the operation of private deed restrictions, but was a way of eliminating many small competitors in the land development and building industries. These professionals and large scale developers and builders were also joined by city politicians and bureaucrats, who expected that their sphere of influence would be broadened under zoning regulations. Future development could be “regulated” so that city authorities would not be overwhelmed by the demand for municipal services. Most backers of zoning were probably sincerely interested in promoting orderly land use and better communities, but they also saw zoning as a tool to buttress their personal profit and power.

Court Cases on Zoning

Although the courts have occasionally challenged the application of a zoning law to a particular piece of property, they have always upheld the exercise of the government’s police power, and have “never held against zoning in any basic sense. This carries forward a tradition from the earlier days, both in this country and England, in which the rule of government” prevailed over private property rights. The authors of this statement, Linowes and Allensworth, conclude that in Anglo-American law there is no right to use your property as you like: “[H]ere are important constraints on the use of property that suggest that property rights do not exist.”

An early 20th Century example of this is the California case of Hadacheck v Sebastian, which was eventually decided by the United States Supreme Court (239 US 394). In 1902, J.C. Hadacheck acquired 8 acres of land, outside the city of Los Angeles. The land, which contained clay deposits, was devoted to the manufacture of brick. Around 1909, after the city had annexed the land on which the brickyard was located, a municipal ordinance was passed which limited brickmaking to certain areas of the city. Hadacheck challenged the law, on the basis that denying him the use of his land as a brickyard lowered the value of his real property by several hundred thousand dollars. Both the California Supreme Court (in 1913) and the US Supreme Court (in 1915) decided that the city had the right to prohibit what hitherto had been a lawful use. “The police power was available to stop nonconforming uses, to deal retroactively with uses incompatible with those allowed by law.” According to this reasoning, there is no such thing as private property rights in the United States. At any time, the political authorities, may, under the guise of zoning and the police power, declare a hitherto legal use “nonconforming” and prohibit its exercise. And the prohibition against “ex post facto” laws does not apply because most zoning enforcement is a civil action, not a criminal one.

By the early 1920s the national zoning movement had achieved remarkable results. In September 1921, Secretary of Commerce Herbert Hoover appointed an Advisory Committee on Zoning. Within a year, the Department of Commerce issued a Standard Zoning Enabling Act, which furnished state and local governments a model law under which to empower their towns and cities to exercise the police power to zone. By 1925, over one-quarter of the states had passed similar enabling acts. (Zoning also received a “boost” in 1934, when the Federal Housing Administration was created. Only builders in municipalities with zoning regulations were qualified to receive FHA mortgage insurance.) The supporters of zoning believed that when a test case went before the Supreme Court that the Court would be more inclined to support zoning if it had seen widespread adoption throughout the country. By the end of 1925, zoning had been brought before the highest judicial tribunals in twelve states, and nine of them had upheld the police power. Only in Maryland, New Jersey, and Missouri had zoning been declared unconstitutional.

The constitutionality of comprehensive zoning was upheld in 1926, when the United States Supreme Court decided the case of Ambler Realty v the Village of Euclid (272 US 365). This test case originated in Ohio, where the federal district court judge had “held that zoning ordinances were necessarily unconstitutional because they ‘took’ property without compensation.” The case was a classic one of commercial real estate being rezoned residential, with a resulting loss of potential property value to the property owner. The Supreme Court had already heard arguments in the case, when Alfred Bettman, a well-known national supporter of zoning and friend of Chief Justice Taft, filed a friend of the court brief. Bettman pointed out that the question before the court was the constitutionality of comprehensive land use regulations, not whether the Village of Euclid had exercised the power of eminent domain (which would require compensation). The Euclid ordinance was “frankly and expressly an exercise of the police power.” “The community,” Bettman wrote, “was not taking or destroying any property or property rights for public use but was invoking a general power over private property, which [was] necessary for the orderly existence of all government.”

“Bettman’s brief saved the day for zoning. One justice who had previously been persuaded that use-zoning was unconstitutional changed his mind, and on November 22, 1926, the high court upheld this form of regulation in a momentous four-to-three decision.” Justice George Sutherland, who delivered the majority opinion, believed that the exclusion of buildings devoted to business from residentially zoned areas bore “a rational relation to the health and safety of the community.” The problem with this justification is that “the health and safety of the community” is as open-ended a concept as “the general welfare.” Sutherland justified the exclusion of businesses from residential areas on the grounds that there would be less traffic, children and pedestrians would be safer, that there would be less disorder, and that municipal fire and police protection would be made less difficult and less costly to provide. He also added that “the construction and repair of streets may be rendered easier and less expensive, by confining the greater part of the heavy traffic to streets where business is carried on.”

In 1948, the Supreme Court was called upon to adjudicate the issue of public policy versus private covenants. It took a very statist view, upholding the right of the government to abrogate private agreements. In Shelley v. Kraemer (334 US 1), the Court held that it would not enforce a private covenant designed to exclude members of the Negro race from a neighborhood. Private covenants contrary to public policy (such as nondiscrimination laws) were not illegal, but the parties to them could not use the state’s judicial system to enforce them.

Private Places and Contractual Communities

A covenant is usually a promise not to do something, and in the real estate world a restrictive covenant usually refers to restrictions recorded in the deed of a property. The law of equitable restrictions on land, sometimes termed easements or servitudes, has often been used by real estate developers to assure that the land is used according to a certain scheme. Typically such agreements might provide for residences only, or allow houses of a specified value, certain size, or style of architecture, or protect against the conduct of objectionable businesses, and restrict building to a specified distance from the street and other property lines. Some covenants “run with the land,” (an old practice under the English common law) and others are set out in the sale or purchase agreement.

One of the earliest uses of private covenants was found in St. Louis, Missouri, where during the 1850s and 1860s, nearly one hundred subdivisions or private places were formed within the city. “A private place could encompass one or more streets and was governed by an elected lot association. Not only did each private place own and maintain its streets, but in many cases it also owned the sewers, water mains, and utility easements.”

The rules for each private-place association were laid down in its “indenture,” or restrictive covenant. Most covenants were framed by the initial subdivider and contained house set-back requirements, restrictions against multi-family housing, and private building codes. Covenants authorized the collection of annual assessments to pay for the upkeep of the streets, water mains, parks, and other common areas. If a lot owner refused to pay annual assessments, the association had the power to place a lien on the property and sue in a court of equity. In this respect, the private-place is similar to the modern condominium .

David Beito, author of the foregoing quote, adds “The private places carried on functions that everywhere else have been considered essential government services.” But of course, they were not governments in the traditional sense. The rights and powers of the homeowner’s association ended at the boundary line of the subdivision. They seldom had any control over vacant land bordering their neighborhood. In contrast to the politically coercive methodology of zoning, the developers and owners of private-places respected the property rights of everyone, whether they were inside or outside the boundary of the development.

The private places of St. Louis, and other early subdivisions like Tuxedo Park, New York (1885), Riverside, Illinois (1869), Country Club District (Kansas City, 1906), and River Oaks (Houston, 1925) were the forerunners of today’s “new towns.” They paralleled the construction of new company towns, such as Gary, Indiana (U.S. Steel, 1906), Kohler, Wisconsin (The Kohler Company, 1916), and Chicopee, Georgia (Chicopee Manufacturing Company, 1924). In time, they have been followed by such mammoth places as Irvine Ranch (93,000 acres in Orange County, California developed by The Irvine Company), California City (90,000 acres in Riverside County, California developed by Kaiser-Aetna), and Valencia (44,000 acres near Los Angeles, California built by Newhall Land and Farming Company). The essential element that links all of these projects is their reliance upon private enterprise. The entrepreneurs who built these places all realized that contractual communities were the key to creating and maintaining value, both for investors and those who chose to live in their new towns.

The Rouse Company and Columbia

Columbia, Maryland, the planned development of The Rouse Company of Baltimore, Maryland, is one of the finest examples of a contractual community in the United States. As of April 1995 there were nine major villages and a Town Center in Columbia, where 81,00 people lived. “Columbia exploded three myths about new towns.” The giant developments in California had nearly all started from farm lands owned by family or corporate interests. James Rouse proved that it was possible to assemble enough land to start a new town. Furthermore, he demonstrated that new towns could be financed by private enterprise. Rouse did not resort to federal loan guarantees provided by Congress in 1966 to private developers of new towns. Earlier developments, by contrast, like the three Levittown locations (Long Island, NY, Bucks County, PA, and Burlington County, NJ), relied heavily upon government mortgage money under FHA and Veteran’s Authority programs. Finally, Rouse showed that it was possible “to win zoning approval from development-shy suburbanites.”

From the very beginning of Columbia, Rouse realized that creating a private community that would be “truly in scale with people” depended upon the profit-motive. “Profit,” said Rouse, “hauls dreams into focus with reality. It moderates the temptation toward imposing one’s bias on others. You hav[e] to estimate at every step of the way how people are really going to choose, not the way you want them to [choose].” Rouse was convinced that “if you can create an environment that is good enough, people will pay for it.” He once stated that “Unless Columbia makes an outrageous profit, it [will be] a failure.” Columbia not only had to attract enough inhabitants, who wanted to live and own there, but it had to earn “an outrageous profit,” as Rouse termed it, to show the financial community that “new cities are [not] a pointless risk.” (Rouse proved his point. The Baltimore SUN reported on October 10, 1995 [page 6A] that his company “has earned about $100 million in profits on land sales, primarily in Columbia.”)

The idea for a new town midway between Baltimore, Maryland and Washington, D.C. may have occurred to Rouse during the late 1950s. Howard County, Maryland was predominantly farming land at the time. Beginning in 1962, through exceedingly careful control and negotiations, Rouse was able to acquire over 15,000 acres of county real estate with sufficient contiguity to be treated as one entity. He obtained a loan of nearly $25 million from Connecticut General Life Assurance to pay for the 169 parcels he purchased at an average price of $1500 per acre. Once the Howard County government granted “new town” zoning to the project in 1965, another $50 million of long term financing was obtained from such sources as Chase Manhattan Bank and the Teachers Insurance and Annuity Association of America.

To attract industry and to provide jobs for the residents of Columbia, The Rouse Company paid for a four-mile railroad spur and expanded the city beyond its original scope. The General Electric Industrial Park was created on 2139 additional acres of farms and gravel pits, that Rouse purchased several years after Columbia started. This land cost over $19 million, more than six times the average price per acre Rouse had paid in late 1962 and 1963. With the addition of the acreage for the General Electric Company, Rouse had bought a total of 17,868 acres for $44 million, at an average cost of $2485.

The Columbia Park and Recreation Association is the name of the homeowner’s association set up by The Rouse Company under the terms of its sales agreements. The Association is a private, nonprofit corporation with a full time manager, professionals, and grounds maintenance staff. The Columbia Association is responsible for the community’s buildings, swimming pools, lakes, pathways, parks, and landscaping. To pay for this and other services, such as child and day care, arts and craft classes, tennis and golf clubs, the Association is empowered by private covenant to collect from every property owner in Columbia, an assessment of up to 75 cents per year of $100 assessed valuation. Apartment dwellers have the Columbia Association’s levy included as part of their rent. Another arm of the Columbia Association, and which falls under the covenants which govern the residents of Columbia, is the Architectural Committee. This group functions as a review board and must approve all construction plans in advance. It has the power to require changes, or even reject building projects entirely. From a voluntaryist point of view, the only major flaw in the planning for Columbia was that The Rouse Company did not assume the responsibilities for certain public services within the community. The local government of Howard County levies a property tax on homeowners in Columbia, and maintains the streets, the roads, the schools, and provides fire and police protection.

Unlike coercive political government, The Rouse Company could not resort to condemnation proceedings in order to assemble and purchase the properties it needed to form Columbia. In order to prevent land prices from rising as it bought up more and more land, Rouse disguised its intentions by buying through many intermediary agents. Despite the secrecy and their best efforts, the agents employed by Rouse were not able to buy up all the properties in the proposed area. There were five-holdouts, owning some 850 acres, who refused to sell under any conditions or at any price. Finally by 1971, Rouse had paid $3,000 an acre for one 112 acre holdout, which became the site of the Howard County Community College. As of 1995, one of the holdout properties was still undeveloped, and the rest had been privately developed.

As Rouse found out, most people have a price for their land. As one of his real estate agents put it, their “job [was] to find out what it [was] – money, terms, a life estate. Everything can be acquired if you solve all the difficulties.” Farmers had to be satisfied that they would be able to harvest their crops that were in the ground. “Several elderly couples insisted on the right to live where they were until they died. One woman would agree only to lease her land for 99 years, giving Rouse an option to buy after that.” Another farmer wanted to preserve a life estate on his property for his horse. On one 810 acre property where a life estate had been preserved for the owner, Rouse had not purchased the timber rights. When the elderly resident threatened to sell his valuable stand of timber, Rouse bought the timbering rights and topsoil for more than $40,000 and let the trees stand. All such problems were overcome by human ingenuity and the respect for individual property rights.

Another example of a contractual community formed in the same manner as Rouse’s Columbia is Walt Disney World, an entertainment and resort complex that lies southeast of Orlando, Florida. Disney World consists of 28,000 acres, which encompasses a wildlife preserve of 8200 acres. “To avoid holdouts as well as to keep the land prices in the area from escalating, Walt Disney had by 1964 acquired the land in small parcels using various holding companies. Using middlemen, stealth, and more than 100 dummy corporations, [Disney] went on a secret land-buying spree near Orlando, paying about $400 an acre.” One important aspect of the development is that Disney purchased much more land than was needed for, or intended for, Disney World. He wanted “to create a buffer zone” around the theme park “and avoid the motels, fast-food stores and unsightly neon cacophony that developed around Disneyland in California.” By being able to control the surrounding environment, Disney management would not only be able to guide future development, but also assure itself of a profit as land around Disney World increased in value. Like Rouse, Disney aimed to show “that through free enterprise you could take virgin land and develop it without any government subsidy.”

Conclusion

As these examples of contractual community governance illustrate, there are marketplace institutions that provide many, if not all, the normal services offered by politically sovereign governments. Spencer MacCallum has argued that “there are no longer any political functions being performed at the municipal level and upward in our society that differ substantially from those that we can observe being performed on a smaller scale entirely within the context of normal property relations.” There are two major differences between contractual communities and the typical community political government. First, the governing body of a contractual community (usually called a residential community association) does not have the power to levy taxes like its political counterpart. The fees that they charge are based on market place competition, not political whims. Secondly, in a contractual community the relationship between the party that owns the property and the people who live there is based upon an explicit contract entered into by both parties. Such a contract cannot be changed unilaterally, nor by the majority of residents. In political communities, the relationship is non-contractual (what the government would call “constitutional”) in nature, and can be changed by the government or a majority of the voters. The institutions of political governance reserve to themselves the right of final constitutional interpretation and enforcement by liens, seizures, and imprisonment.

The whole point of contractual governance is to stabilize land uses and property values to the benefit of all parties involved in owning or residing on the land. It pursues this goal in a free market manner by linking ownership, management, and the maintenance of property values. All the parties involved in these arrangements are mutually satisfied or withdraw from them. “The slightest neglect of the public interest or lapse in the form of corruption or oppression” in the contractual community penalizes itself by a decline in rent and property values. By contrast, zoning and political officials suffer no personal loss if their controls don’t work. In fact, they sometimes benefit from unworkable regulations, which they themselves obviate through the receipt of payoffs, bribes, or other forms of political intrigue and corruption.

The fact that many people do not view zoning as a destroyer of property rights demonstrates how few people really understand the meaning of private property. Zoning is simply stealing. Not only is its claim to promote the general welfare bogus, but the exercise of the police power effectively negates all private property in land in the United States. “In essence, zoning grants a cadre of public official and favored private [interests] the free exercise of state power to force their designs on the use of someone else’s property.” Zoning is “legal mumbo jumbo for uncompensated takings under the exercise of the police power.” Furthermore, the history of zoning aptly illustrates the truth of Ludwig von Mises’ observation that one government intervention must lead to another. Early zoning laws were not aimed at controlling undeveloped land. Later, zoning laws were expanded to include all real property.

Contractual governance of communities, whether residential or commercial, often goes far beyond the scope of public sector regulations. These restrictions, which might include specifying what colors a homeowner can paint the house, do not constitute a violation of property rights because they are contractually set out in the sales and purchase agreement. In the area of land use and planning, “private innovation” has usually preceded “public action.” Many features now common to zoning laws were first initiated by private developers. This includes such planning items as the superblock, the cul de sac, set back lines, planting strips, underground utilities, and design and placement of open spaces and provision for recreational amenities.

Land use planners cannot predict all the changes that will come about in the future. As Bernard Siegan noted, in 1913, when New York City planners began their zoning work, they could not anticipate the impact of the automobile or the Great Depression, or even foresee the advent of air conditioning or penicillin. In a free society, land use controls and building codes would exist under the framework of private covenants and insurance company standards (to be met as a precondition to obtaining insurance coverage). Free market decision-making is usually wiser than that of bureaucrats and politicians because the free market links authority and responsibility: on the free market, the person or organization who makes the decision has to pay for it. The most effective type of voluntary zoning is the result of private covenants, market pricing, and competition. The social potential inherent in the development of property and real estate under voluntaryism is beyond the wit of man to foresee.

Short Bibliography

1. David Beito, “Voluntary Associations and the Life of the City,” HUMANE STUDIES REVIEW, Fall 1988.
2. Gurney Breckenfeld, COLUMBIA AND THE NEW CITIES, New York: Ives Washburn, Inc., 1971.
3. Carol Christensen, THE AMERICAN GARDEN CITY AND THE NEW TOWN MOVEMENT, Ann Arbor: UMI Research Press, 1978, 1986.
4. Fred Foldvary, PUBLIC GOODS AND PRIVATE COMMUNITIES, Hants: Edward Elgar Publishing, 1994.
5. Robert Linowes and Don Allensworth, THE POLITICS OF LAND-USE LAW, New York: Praeger, 1976.
6. Spencer MacCallum, THE ART OF COMMUNITY, Menlo Park: Institute for Humane Studies, Inc., 1970.
7. Mel Scott, AMERICAN CITY PLANNING SINCE 1890, Berkeley: University of California Press, 1971.
8. Bernard Siegan, “No Zoning Is The Best Zoning,” in Benjamin Bobo (ed.) NO MAN IS AN ISLAND, San Francisco: Institute for Contemporary Studies, 1975.
9. Seymour Toll, ZONED AMERICAN, New York: Grossman Publishers, 1969.
10. Gordon Whitnall, “The History of Zoning,”‘ in ZONING IN THE UNITED STATES, Vol. 155 THE ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE, May 1931.

1. Congress shall make no law respecting an establishment of religion, except to mandate explicit reference to the Christian God on the currency; or prohibiting the free exercise thereof, aside from oddball cults – whom the Attorney General and the FBI may freely smear in the mass media and then wipe off the face of the Earth; or abridging the freedom of speech or of the press, except in the case of pornography, hate speech, movies containing excessive violence, or any other form of expression which somebody somewhere may find offensive or disquieting.
2. A well regulated militia of free men being an intolerable menace to the totalitarian designs of the State, the right of the people to keep and bear arms shall apply only to those people employed by the Organs of State Security, and of course to muggers, rapists, burglars, gangsters, and other criminals who don’t obey other laws and can’t reasonably be expected to obey this one.
3. No soldier shall, in time of peace, be quartered in any house without the consent of the owner, since it’s much easier to just seize the entire house if the Authorities really want it for something (see Amendment 4).
4. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be construed in such a way as to prevent the Authorities from seizing any property which they may believe, infer, suspect, imagine, or assert to be in some way involved with anything whatsoever to do with drugs, money laundering, or tax evasion.
5. No person shall be subject for the same offense to be twice put in Jeopardy of life or limb, except in cases whereby the mass media and public opinion hold his acquittal to have been a miscarriage of justice, in which case he may be retried on Federal charges as many times as necessary to secure a conviction, or in case of parole violation whereby the convicted may be subject to re-incarceration as many times as the Authorities deem necessary to ensure rehabilitation; nor shall any person be compelled in any criminal case to be a witness against himself, except when the Authorities grant him selective immunity from prosecution to force him to do so, then find some legal technicality enabling them to use the information thus gained against him anyway.
6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, except where there are interminable delays due to the system being clogged with victimless drug cases, and shall be entitled to the assistance of counsel for his defense, although the Authorities may seize and confiscate any assets, without due process, that he might otherwise use to afford such counsel (see Amendment 4).
7. In suits at common law, where the value at controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; however, persons accused of rape, child molestation, and other sexual offenses whereby it is generally recognized that no one is ever falsely accused, may be tried and summarily found guilty by the mass media.
8. Excessive bail shall be imposed to keep persons who are obviously guilty behind bars until the Authorities can get around to trying them, or in such cases of suspected parole violation whereby the Authorities, regardless of evidence against the accused, may completely deny bail; cruel and unusual punishment shall not be inflicted, except as required by both State and Federal mandatory-sentencing guidelines.
9. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the Authorities, including the right to control economic activity through taxes and regulation, the right to impose mandatory racial and gender favoritism, the right to collect and monitor vast amounts of personal data on citizens on the pretext of the Census, the right to arbitrarily bar citizens from visiting certain foreign countries, and other rights which it may occur to the Authorities to decide they currently have.
10. 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; however, any State which attempts to enforce this provision by seceding from the Union in the face of flagrant violation of its sovereignty by the Federal Authorities shall be subject to invasion, militarily occupied , and razed to the ground at the discretion of the President, while any lesser attempt by any State to assert its rights under this Amendment shall be punished by occupation by the National Guard, withholding of Federal Funds, or other means at the disposal of the Federal Government.

by Charles R. Estes
From Issue 78 – February, 1996

My first meeting with Joe Galambos hinted at, but did not foretell, the influence he would later have on me and on the libertarian movement. Galambos sought me out at a meeting held in Los Angeles as part of the early promotion of Barry Goldwater for president. The year was 1960.

Galambos noticed that I was carrying a copy of F.A. Hayek’s book, CONSTITUTION OF LIBERTY, which identified me as a person interested in Austrian economics. He asked me if I was aware of Hayek’s teacher, Ludwig von Mises. I was not. Introducing me to Mises’ work was the first of a number of important contributions Galambos was to make to my free-market education. Galambos was an enthusiastic supporter of Mises and his work; he had, in fact, met personally with Mises in New York prior to our meeting.

That meeting was one of the formative meetings of “Californians for Goldwater.” The speaker was Adolphe Menjou, actor and former McCarthy-era “red baiter.” The place was “Poor Richard’s Bookstore,” which I later learned was a major meeting place of the then unknown but later famous John Birch Society. I was there at the invitation of an unsuccessful congressional candidate, Ann Redfield Heaver. Galambos was there because he said Goldwater was potentially the most electable, even if not an ideal, advocate of the free market. Galambos at that time clearly believed in political solutions to sociological issues. I, too, was a Goldwater fan and had given away more than a hundred copies of his book, CONSCIENCE OF A CONSERVATIVE. It appeared at that time, at least, that the path to freedom began with the conservatives.

Physically, “Joe” or “Joseph” as he was then known was about six feet in height and substantially overweight. (“Andrew Joseph” was the name his parents gave him at birth. He was called “Andy” by fellow soldiers when he served in the U.S. Army in World War II, and both experiences-soldiering as well as the nickname-embittered him. He legally adopted his father’s name after the latter’s passing. Subsequently he transposed the names again out of concern for his father’s memory, lest his own future fame obscure his father’s recognition.) He wore his clothes in the manner of one who considered dress of secondary importance, although he acceded to convention to the extent of wearing a coat and tie. His most arresting physical characteristic was his deep and resonant voice, a voice that did not easily escape notice. Later I was to hear him give a speech heavily excerpting from Thomas Paine’s COMMON SENSE AND THE CRISIS, “These are the times that try men’s souls…” I will never forget his presence, his dramatic voice, his forceful manner of speech. Joe was clearly not your typical “man in the street.”

Following his introduction, Joe briefly outlined his political position. There was a hint that the ideal societal structure might involve some sort of corporate structure. He promised to elaborate on the concept in a special course planned for a future date.

My next contact with him was his phone call inviting me to a promotional meeting for his upcoming course in philosophy. My wife and I attended, bringing several interested friends. Later, we held similar promotional meetings at our home in Malibu. We contributed substantially to the enrollment of his first course, which he called “Course 100: Capitalism— the Key to Survival.” The first classes met at the Ivar Hotel in Hollywood during 1961.

Course 100 met weekly. Although scheduled from 8:00 to 10:00 p.m., it frequently continued until midnight. Some of the long presentation was tedious. But just when we thought we could not sit another minute, Galambos would come up with a gem that made the entire evening worthwhile. Later I learned that Joe did not arise from bed until almost noon each day. The late evenings were our problem, not his.

It is impossible to attempt more than a brief summary of the important ideas in Course 100 as it existed then. I am told that its replacement, V-50, bore little resemblance to the original course. Even during the brief period I knew Galambos, the course changed almost beyond recognition. I will, however, attempt to summarize some of the central ideas.

Galambos was educated in the physical sciences. His specialty was astrophysics. He left Ramo Wooldridge Corporation, Space Technology Laboratories (STL—which later became TRW and Aerospace Corporation) because he saw that the new frontier in space could not be developed properly by government bureaucracy. This concern led him to found the Free Enterprise Institute. His aim in founding the Institute was to make the world safe for astronautics by teaching the beauty of the free market, thereby helping to bring about a societal structure based on the freedom of the individual. He saw that earth’s political problems would have to be resolved before he could hope to carry out his primary dream of operating the first private lunar transport company.

As a physical scientist, Galambos saw the great contrast between the progress achieved in the physical sciences and the barbarism, at best, that dominated the social sciences. Given the existing social structure, he saw that physical science had made killing on a vast scale not only possible, but probable. He thought that if progress were to be made in the social sciences, it could only happen by using the methods common to the physical sciences.

Consequently, a substantial part of Course 100 was devoted to teaching “scientific method.” He credited Isaac Newton with the original “integration” of ideas in the physical realm. He now wanted to do the same in the social realm. This approach attracted many of his first students and supporters from the physical sciences.

Galambos was an early admirer of Ayn Rand and thought ATLAS SHRUGGED should be required reading for any “Liberal.” (Galambos did not at the time use the term “libertarian,” feeling that the word “liberal” had been stolen from freedom lovers and that its recovery was essential to the freedom philosophy.) Despite his admiration for Rand’s work, he recognized her to be a cultist. This was at a time when few people would have agreed with him.

Galambos based his concept of a “moral” society on the primacy of the individual and the institution of property. He defined “primordial property” as a person’s own life and “primary property” as his ideas. All other property he derived from these two fundamental kinds. Although no one can reasonably argue against ideas as antecedent to all other property, Galambos lost many of his early supporters due to his manner and means of attempting to protect ideas as property.

Some of Galambos’ early students and supporters included Harry Browne, then a syndicated newspaper writer and later to become a best-selling author; George Haddad, physician; Alvin Lowi, Jr.,engineer and entrepreneur; Richard Nesbit, later to become vice president in charge of research for a major corporation; Billy Robbins, patent attorney and founding partner of one of the largest patent firms in Los Angeles; and Jerome Smith, economist and purchasing agent for a large manufacturing concern who became nationally prominent in the silver bull market of the 1970s. Each of these persons at one time or another in those early years taught Joe’s course. They, along with many others, added to the original offering, greatly improving its content and consistency. Most of the later course offerings were on audio tape. To my knowledge, the only other person to teach the course was Jay Snelson, who maintained his association with Galambos for fourteen years. In 1979, Jay founded the Institute for Human Progress and Human Action Seminars, based in Orange County, CA, in which he is developing a highly original presentation of his own.

With the exception of Billy Robbins, Alvin Lowi was chiefly responsible for recruiting this distinguished early cadre. It was he who originally persuaded Joe, then a fellow employee at TRW, to found the Free Enterprise Institute and teach his ideas. Unfortunately Galambos never led the Institute in the direction of becoming a true university, which was Alvin Lowi’s dream.

Galambos’ early societal models were modified versions of the United States republic, with the addition of the Resistor, a body empowered to repeal laws passed by Congress if it judged them to be contrary to the Constitution. He believed in a written constitution, unlike the unwritten basic law of England. “CCI” was the motto of the Free Enterprise Institute, the letters standing for “Constitutionalism, Capitalism, Individualism.” This seemed a strange ordering for one who professed belief in individual sovereignty. Galambos was then a proponent, as well, of capital punishment. These ideas would change radically as other people contributed their efforts.

The quality of the people drawn to Galambos’ ideas is best exemplified by the participants in his first Course 100 graduation meeting. Richard Grant presented his poem, “Tom Smith and the Incredible Bread Machine,” later expanded into a book of the same name. Don Balluck, playwright and later producer of television offerings, presented an original one-act play consisting of a dialogue between Ralph Waldo Emerson and a bureaucrat named “Binder.” Pat Gilbert, now Pat Cullinane, presented a paper on her experiences in founding a (still successful) private, for-profit school. Alvin Lowi, Richard Nesbit and others also made contributions. I am still in personal contact with most of these people. To my knowledge, not one has had any involvement with Galambos for many years. Most of them, as I do here, speak of him only in the past tense; why?

A major reason might be that Galambos made a habit of abusively accusing each one of us—and much of the rest of Southern California—of stealing his ideas. Yet, ironically, he often used other people’s ideas without credit. Like the best of us, he absorbed ideas from those around him and often built on them effectively. But he used a double standard, demanding more scrupulous acknowledgement from others than he practiced. If he acknowledged a source at all, he was likely to do so derogatorily, inappropriately, superficially, ungraciously. Often he ignored the source altogether. If nothing more, his lack of manners was outrageous and offensive to his colleagues and patrons alike.

I cannot deny the many benefits of my association with Galambos. Among them was the opportunity to attend small lecture classes conducted by such giants as Leonard E. Read, originator of the Foundation for Economic Education; Ludwig von Mises, certainly one of the most important men of this century; and F.A. (Baldy) Harper, founder of the Institute for Humane Studies, who later became my good and valued friend. Meeting daily with these men for a week was an experience never to be forgotten. A fourth giant, Spencer Heath, author of CITADEL, MARKET AND ALTAR, was scheduled for this series of courses. Failing health prevented this, and his anthropologist grandson, Spencer MacCallum, gave a course in his place. I did have opportunities to meet and discuss ideas with Mr. Heath, however, and I credit Galambos for that. (Galambos had met Mr. Heath through R.C. Hoiles, founder of the Freedom Newspapers chain.)

The beginning of my break with Galambos probably occurred in 1963 when I informed him of my intention to participate in a two-week seminar at Bob LeFevre’s Freedom School, in Colorado. He accused LeFevre of being not only a second-rate thinker, but an anarchist! I had decided to go, however, and I told Joe that if he was right, perhaps I could convince LeFevre of his errors. The Freedom School (later Rampart College) was another peak experience. I doubt that I ever learned more in a single two-week period. The following year, along with Alvin Lowi and two groups of Galambos’s course contractors (Liberal Educators of South Bay and Liberal Educators of Santa Monica), I helped sponsor LeFevre at a three-day seminar in Los Angeles. Galambos attended. Course 100, which was undergoing major changes during that period, was soon modified to recognize the disutility of the political state. To my knowledge, Galambos never acknowledged either the change of philosophy or the source of the influence.

For many years I have considered that Galambos’ intellectual manners exemplified the worst he imputed to others; when judged by his own definition at the time, he was an “idea thief.”

Looking back, I think he demanded the impossible and expected perfection in others; not being perfect himself, however, he appeared somewhat hypocritical, to say the least.

I believe Galambos’ main error was to ignore the reality taught by the common law on the subject of property. The common-law tradition holds that an idea can be protected, if at all, only in its manifest forms. To be protected by patent, for example, an idea for a mechanical invention must be built or else described in drawings with enough detail to allow its construction. A book or an article can be copyrighted. In either case, it is not the idea that is protected but the device, drawing or arrangement of words used to represent the idea. The idea and its manifestation are obviously not the same.

Galambos offered an advanced course during this period, the intent of which was to describe a de novo method of protecting “primary property,” i.e. ideas. His approach was contemptuous of the common-law tradition. I attended until the evening when he required the members of the class to sign a non-disclosure agreement. At that point, fearing my opportunities for future dialogue and discourse on freedom w ould thereby come under Galambos’ exclusive control, I refused and left the course. I could not concede the ownership and control of the concept of human freedom to Galambos or anyone else.

Perhaps the most we can say with respect to property in ideas is that good manners call for acknowledging the benefit we receive from others. Civilized decorum requires that we not masquerade as someone we are not.

Joe’s concern for all aspects of property was wellfounded. In his particular treatment of intellectual property, however, I consider he went on a tangent and was seriously in error. In retrospect it was tragic, for it corroded his relationships on every side and led to the alienation of virtually all of his ablest supporters and colleagues. Joseph Galambos must be credited with making an important contribution to the rebirth of libertarianism in Southern California. He ran the Free Enterprise Institute as a profit-seeking venture. He felt, and I agree, that it was inconsistent to promote freemarket capitalism through a not-for-profit organization. His belief was strong enough that he left a secure aerospace job for an uncertain and potentially difficult future. Without doubt, he went through some difficult years. He contributed to my awakening and to that of many others.

Disappointing as it always must be to witness (and to suffer) someone’s bad behavior with respect to an important subject, it is nonetheless encouraging to see how many FEI graduates have little trouble separating the content of the Institute courses from Galambos’ behavior. Many a graduate of Joe’s classes of those early years say that, as little as they can stand the man, he nevertheless radically changed their lives for the better, and for that they will always be grateful.

[The author would like to acknowledge the contributions of Alvin Lowi and Spencer MacCallum to this article.]

[Editor’s Note: Current information about the Free Enterprise Institute can be found at their website]

“When the State Disappeared, Society Continued”

Tragedy & Hope uncensored

“In the West, the Roman Empire (which continued in the East as the Byzantine Empire) disappeared in 476; and, although many efforts were made to revive it, there was clearly a period, about 900 when there was no empire, no state, and no public authority in the West. The state disappeared, yet society continued. So also, religious and economic life continued. This clearly showed that the state and society were not the same thing, that society was the basic entity, and that the state was a crowning, but not essential, cap to the social structure. This experience had revolutionary effects. It was discovered that man can live without a state; this became the basis of Western liberalism. It was discovered that the state, if it exists, must serve men and that it is incorrect to believe that the purpose of men is to serve the state. It was discovered that economic life, religious life, law, and private property can all exist and function effectively without a state. From this emerged laissez-faire, separation of Church and State, rule of law, and the sanctity of private property. In Rome, in Byzantium, and in Russia, law was regarded as an enactment of a supreme power. In the West, when no supreme power existed, it was discovered that law still existed as the body of rules which govern social life. Thus law was found by observation in the West, not enacted by autocracy as in the East. This meant that authority was established by law and under the law in the West, while authority was established by power and above the law in the East. The West felt that the rules of economic life were found and not enacted; that individuals had rights independent of, and even opposed to, public authority; that groups could exist, as the Church existed, by right and not by privilege, and without the need to have any charter of incorporation entitling them to exist as a group or act as a group; that groups or individuals could own property as a right and not as a privilege and that such property could not be taken by force but must be taken by established process of law. It was emphasized in the West that the way a thing was done was more important than what was done, while in the East what was done was far more significant than the way in which it was done.”

—Carroll Quigley, TRAGEDY AND HOPE, New York, The Macmillan Co., 1966, p. 83.

From Number 71 – December 1994

“Again and again in history, we can trace the workings of the law that one who has appealed to force must use force to the bitter end, and one who has established a reign of terror must intensify terror to frightfulness.”

Stefan Zweig
THE RIGHT TO HERESY, 1951, p. 340.

An Anti-Electorate Manifesto

We, the Anti-Electorate, do not believe there is a need for “strong leadership” in government.

We are not drawn to ‘intellectual’ authorities and political ‘heroes.’

We are not impressed with titles, ranks, and pecking orders politicians, celebrities, and gurus.

We do not struggle for control of organizations, social circles, and government.

We do not lobby the State for favors or permission to control those with whom we disagree.

Rather, we advocate freedom.

By its very nature, the State does not.

Exercise your right to say ‘No’ to the warfare-welfare system.

“The longer I live, the more I realize the impact of attitude on life. Attitude … is more important than the past, than education, than money, than circumstances, than failures, than successes, than what other people think or say or do. It is more important than appearance, giftedness or skill. It will make or break a company…a church…a home. The remarkable thing is we have a choice every day regarding, the attitude we will embrace . The only thing we can do is play on the one string we have, and that is our attitude. I am convinced that life is 10% what happens to me and 90% how I react to it. And so it is with you; we are in charge of our Attitudes.”

Charles Swindoll

by David McKells
From Number 71 – December 1994

Editor’s Note: The following article first appeared in the Spring 1991 issue of SMALL FARMER’S JOURNAL (Box 1627, Sisters, OR 97759), a publication which advocates horse-powered, family farming. Although the topics of voluntaryism and the survival of small farming may seem miles apart, in fact, there is a close parallel which is brought out in this article. Freedom can only grow and thrive if we practice it ourselves and pass its spirit along to our children and close friends, just as small farming can survive only, as the author of this piece concludes, if they “work, practically, gracefully, and with dignity.”

His most important point, however, is that the Hopi Indians understood that the enemy “is a state of mind.” Stockpiling guns to defend ourselves against the State or trying to get elected to some office may seem like powerful strategies, but, in fact, they are not. Both mimic the enemy, by attempting to fight the State on its own ground. Such strategies are a failure, from the voluntaryist point of view, because they only reinforce the attitudes that make it possible for the State to exist in the first place. If we want to deal voluntarily with other people, and have them deal with us likewise, then we need to practice freedom and liberty in our own lives. It may seem difficult to “resist not evil,” but there are powerful reasons, both moral and utilitarian, for heeding that advice. “Those who fight evil necessarily take on the characteristics of the enemy and become evil themselves.”

Bob LeFevre used to draw a large “T” chart on the blackboard. One side he would describe as the State and City Hall. The other side of the “T” he would label “Freedom and Liberty.” To which side of the “T” do you want to devote your life’s energies – fighting City Hall or becoming a better person, raising a family and operating a profitable, honest business? Portrayed graphically in this manner, the question leaves little room for hesitation. The voluntaryist will never hesitate to opt for “Freedom and Liberty,” knowing that “if you take care of the means, the end will take care of itself.” Or as the Hopi elder put it, “strong and deliberate persistence in one’s own way and prayer (are always) the best weapons.”]

I read the ‘editorial debate’ in the Winter ’91 issue with great interest. It was especially meaningful to me that Arthur and Zelka should cite the federal government’s attempt to relocate the Navajo and Hopi from Big Mountain, Arizona, so that Peabody Coal can strip-mine coal to ship to Japan. They cite this issue as compelling them to turn their interest towards activism.

It was exactly this issue that compelled me to move from activism (no matter how good that “steadfast self-martyring gaze” felt) to the much more focused task of trying to run the family farm.

I was in graduate school at the University of Colorado when I first heard of the ongoing tragedy of Big Mountain. I was deeply touched, for I had been the sixth generation on a farm located between the Tennessee and Cumberland Rivers in western Kentucky. My family settled there in the 1780s. The federal government ran us off our land in the 1960s when Kentucky and Barkeley Dams were built so that “Land Between the Lakes” recreation area could be formed. Many tried to resist with lawyers and sometimes more desperate means.

The image of an old, one-legged woman holding off the government men with a double-barreled shotgun is permanently etched into my mind. Those who tried to hold out, including the old woman, had their houses bulldozed and burned with all their belongings still inside.

I had always tried to tell myself that this sort of thing could not happen anymore, but here were Indians trying to hold off the same treatment from the same government. I joined a group working on this issue and spent time at Big Mountain talking with these people. It was during this time that things started to click. They had been on their land a long time. The Hopi have been farming on the same ground for 10 to 15 thousand years. Many of them had never bothered to learn English. All they knew was their way. And it was enough. They knew that their lives were a direct expression of that piece of land. And they understood that their farming practices and religious attitude (the two are not separate) tied them to their land through each complex interaction. Too many people think being moved to “better” real estate would be a great deal. But this is because they are native to no place. Home is a place to commute from.

A Hopi Elder told me that the bulldozers and federal marshals supporting Peabody Coal were not the enemy. The enemy, he said, is a state of mind. It’s a state of mind that has been carrying out a conquest of this continent ever since it hit the East Coast. The conquest was not about guns vs. arrows. That was a symptom of the disease. The disease was a clash between states of mind. If you fight a state of mind with confrontation, he told me, you strengthen that state of mind. (Resist not evil.) Our enemy, he said, is on a different plane from the bulldozers. He thought strong and deliberate persistence in one’s own way and prayer were the best weapons.

I understand the predicament these people are in. I had been there as a kid. Then an interesting sequence of events occurred. I found myself in a university working with lawyers and professional activists. I was trying to help the “native” cause from the position of a conquistador. I felt like the people Wendell Berry speaks of who oppose power plants from their air-conditioned homes. Then I got word that an offer had been made on my maternal grandparents’ farm. This hundred-acre farm, about twenty miles from the paternal family farm now covered with Winnebagoes, was going to be subdivided unless somebody in the family wanted it. And no one else did.

Something snapped. Had we not been native to these farms? Was not the subdividing of that farm more of the conquest I was wanting to help stop? That state of mind which holds no place in reverence, which turns husbandry into agribusiness, and would willingly strip-mine farm for money, was about to consume my family farm for the second time. The notion of “home” in its full sense became very real.

Now my only connection with a university is when I get a soil test. I mend fences my grandfather built. I cut hay he sowed in fields he cleared. I water my horses in creeks I played in as a child. I have repaired the barn my father and both grandfathers built together. And I build fences and outbuildings my kids may someday repair. But perhaps most of all, I cultivate an intimate knowledge, love, and reverence for this place in all its intricate complexity. Does this help the Hopi and Navajo who are at this moment trying to patiently outlast Peabody Coal and the federal bureaucracy? Not on the plane where bulldozers exist.

But the conquest is very quietly going on all around us. Speaking out, passing petitions, etc., all need to be done. But I believe the strongest blow I can make against that state of mind -the one trying to gobble up the last remnants of traditional Indians as well as the last remnants of the family farms – is to be truly at home in my place. To raise a family here and pray the kids will understand. To nurture a native, respectful state of mind.

Perhaps the strongest, most direct weapon we have is to make our farms work, practically, gracefully and with dignity. And do it out front and in the open for everyone to see.

by John A. Van Hulzum
From Number 68 – June 1994

On and off campus there are people who call themselves anarchists. Just for fun I bought a book about anarchy, only to see how that subject would be treated.

The book consists of 18 short essays, written by 17 different individuals.

Not a single one looked at anarchy the same way, which should not be surprising at all, testifying to an anarchy of thought. Almost all of them were anti-government.

I was very interested because my favorite philosopher can only be looked at as an anarchist in the true sense of the word.

Anarchy originally only meant “leaderless”, nothing more and nothing less. Long before Christ lived, Lao-Tzu said:

“If one man leads, another must follow,
How silly that is, and how false.”

Nobody can be born anarchist because every baby depends upon parents or others for clothing and shelter.

You can only be an anarchist after you have grown up. Lao-Tzu never said a word about being anti-government, but he said a lot about growing up.

Unless one is grown up enough one cannot be without authority and the old sage made that quite clear.

He already had what we call a democracy in mind, but he also knew that a democracy of ignorant people would not be an ideal form of government.

He therefore did not concentrate very heavily on the technical details of an “ideal” government but tried to describe the best way for the components of a democracy – individuals – to be worthy of anarchy or self-rule.

This thought of his was expressed as,

“Democracy grows at one’s own doorstep.”

I did not find a single one of those 17 so-called learned individuals who referred to Lao-Tzu, the one who “wrote the book” on anarchy.
(Editor’s Note: The book referred to is edited by Mike Gunderloy and Michael Ziesing, Anarchy and the End of History, (1991) and contains an article on The Fundamentals of Voluntaryism by Carl Watner.)

by Carl Watner

The International Society for Individual Liberty (1800 Market Street, San Francisco, CA 94102) published a three-fold brochure entitled: “Red Alert: The Rising American Police State.” The author, Jarret Wollstein, argued that “a tidal wave of authoritarian legislation has been battering America.” While I highly recommend this article to readers of THE VOLUNTARYIST, my two initial reactions to the piece were 1) “the rising American police state”?—The American police state has already risen. The fact is simply that no one calls it that. 2) “authoritarian legislation”?—What other kind of legislation is there?

What is in store for us in the 21st Century? The political scene—even before the last presidential election—looks worse and worse every year. It is my contention that we are living in a dictatorship in all but name. Living in a republic, where people “rule” themselves, and participate in electoral politics, is no guarantee that we cannot lose (or have not lost) our liberties.

The big picture is that time has already run out on America. The government of the United States has spent itself into bankruptcy in every way but name. The national debt increases every year, and ever larger portions of the federal budget are required just to service the interest on this borrowing. We have a rotten currency, which buys less and less. Historically this has been an invitation for a political strong man to take power. Napoleon followed the assignats of the French Revolution; Hitler followed the inflation of the German mark after World War I. While history seldom repeats itself in exactly the same way, America is following the footsteps of other world empires whose demise has been recorded by historians. America is so close to the edge of disaster that it hardly matters what emergency strikes us next—a currency crisis threatening the U.S. dollar or any major world monetary unit, a financial apocalypse or meltdown of international stock markets, or a nuclear threat from one of the former communist states. Any or all of these could be the catalyst for the formal declaration of martial law in America, and the abrogation of more of our economic and civil liberties.

Barring such potential catastrophes and measures, what proof can I offer to substantiate my claim that a police state already exists? Mo matter how conscientiously a person strives to avoid involvement with the State, every American finds him or her self entangled and ensnared with the statist beast to some degree. The result?—A loss of precious liberty, and encounters with a propaganda machine of enormous proportions and finely honed techniques. Every major area of life is regulated, controlled, or touched by some level of American government. For example—

• Children are:
  1. registered at birth by their state governments.
  2. assigned social security numbers by the Federal government.
  3. required to attend school, with proper immunizations and records, and even “home schools” are legislatively supervised by the states or counties.
• State and county governments collect real estate and personal property taxes in their respective jurisdictions.
• State governments collect income taxes and sales taxes on nearly all purchases, even out-of-state ones.
• The Federal government collects not only income and social security taxes on all world-wide earnings of individual Americans, but taxes capital gains, gifts, gasoline, and levies on their estates when they die.
• County, state, and federal licensure laws affect every area of human activity, from driving a car to running a business, from practicing a profession to building a house, from receiving medical treatment to the food you eat.
• Americans are required to use their social security “identifier” in hospitals, schools, banks, in real estate transactions, passport and employment applications, drivers license, etc., etc.
• The Federal government mandates that you have an American passport in order to enter the country upon return from travel abroad.
• The American monetary system is based on fiat. Money is what the federal government says it is. Who else but the Federal government could create a piece of paper with the denomination “$100 dollars” printed upon it (costing about 4 cents to produce) and exchange it for real goods and services to the tune of $100?
• The existence of local, state, and federal civil asset forfeiture and seizure laws, as well as money-laundering statutes, enables government agencies to confiscate any property—including your cash money—without any indictment, trial, or conviction.
• Restrictions on the ownership and use of private property have become widespread—whether it be real estate or personal property (from the banning of firearm ownership and drugs to the prohibitions on the development of designated wetlands).

This was written in 1993.  Twenty years later, the entire article still applies, though some of its predictions have come true already…

“With millions of laws now on the books, there isn’t a single person in America who hasn’t broken some of them.” The real purpose of all these laws? There is no way that each and every one of them can foster the “general welfare,” for at least one or more persons are always worse off than if there had been no such law(s). The real purpose of government legislation is to create a nation of lawbreakers, who can be alternately cajoled into line with feelings of guilt or slapped into shape by the threat of guns, jails, and confiscation. Government law enforcers want a populace which they can easily manipulate and control, whether it be by the carrot or the stick. Where else but in America can you find a formerly “free” people with such a plethora of government as they or their “elected” representatives have appointed? Americans are now experiencing what they asked for. Pierre-Joseph Proudhon described this process of “governing” over a century ago:

And of course, all this is done in the name of the people, by the people, for the people!

In his book, TOTALITARIANISM (1972), Leonard Schapiro describes “the 6 point syndrome” (originally formulated by Professor Carl Friedrich in 1954) which characterizes political efforts to totally control all human activity in a given society. Judge for yourself how close the United States comes to fitting this description:

1. an official ideology to which everyone is supposed to adhere.
2. a single mass party (led by one man) organized hierarchically and intertwined with the state bureaucracy
3. a near-complete monopoly of all weapons of armed combat
4. a near-complete monopoly over all means of mass communication
5. a system of physical and/or psychological terroristic police control
6. central control and direction of the entire economy.

As the old saying goes, “If the shoe fits, wear it!” In his article, “Propaganda—American Style” (see THE VOLUNTARYIST, Whole No. 37, April 1989), Noam Chomsky observed that “in a state such as the U.S. where the government can t control the people by force, it had better control what they think. The American State accomplishes this largely through the medium of “free public education,” a misnomer if there ever was one. Not only is such schooling not free (somebody always pays the cost), but it is damaging to one’s mental health (and in many places, even dangerous to one’s physical health—because the threat of physical violence is becoming more and more prevalent in the public schools). Public schools, in conjunction with the media, teach people to accept “double think,” to believe that government is as necessary as food, shelter, and clothing. Hence, most people cannot understand the “real” world (natural law) principles upon which the free market is based, and that “private property is a total concept.”

In a similar manner, Schapiro comments that the ruling elite “can, by control over education and over all information entering the country, and by the extensive use of modern technical methods of propaganda, and monopoly of propaganda, indoctrinate or condition the inhabitants in such a way that they voluntarily believe what the ruling elite requires them to believe.” Furthermore, he notes that the mobilization of the nation (for the purpose of fighting an enemy or winning a war) “logically entails the ultimate complete control over private property. And since property is one of the main safeguards of the individual against the encroachments of government, mobilization thereby contributes to the total enslavement of the population.” As property becomes less and less private, and more and more public, the government exercises greater and greater control over the livelihood of every individual in the country. The increasing absence of private property makes it more and more difficult for the individual to emancipate himself from the State by creating material independence. Thus government control over one’s employment becomes “an effective substitute for physical terror.”

Every State, to exist, needs to search for and attain a certain minimum degree of legitimacy. Principles of legitimacy determine who has the right and title to govern—in other words, “who has the right to be obeyed.” The consent and cooperation of a majority of the populace, whether it be active or tacit, is required to establish that legitimacy. While recognizing the importance of State legitimacy, the voluntaryist views all compulsory government as inherently arbitrary and coercive. To the voluntaryist a man is still a slave who is required to submit even to the best of laws or the mildest form of forceful government. Coercion is still coercion no matter how nicely it is administered or no matter how small the dose.

Practically all political regimes, even the most coercive and totalitarian, seek to legitimize themselves through some sort of electoral process, however forced or faked it might be. In his article, “Elections, Liberty, and the Consequences of Consent,” in his book DO ELECTIONS MATTER? (1986), Benjamin Ginsberg points out that “democratic elections are typically introduced where governments are unable to compel popular acquiescence. In a sense, elections are inaugurated in order to persuade a resistant populace to surrender at least some of its freedom and allow itself to be governed. …Participation is offered to citizens as a substitute for freedom.”

Faced with the choice of what appears to be “government or freedom “, government propagandists strive to convince everyone that the choice is not a mutually exclusive one. “Governments are the preservers of our liberties. Governments are needed to protect private property,” they claim. The reality in both cases is just the opposite. This propaganda, usually so successful, increases the certainty of our having some sort of coercive government. The outlook remains just as De Tocqueville painted it: “the citizens will simply continue to take pride in their grips on what, more and more, constitute only the ends of their own chains.”

[These excerpts first appeared in Issue 62 of THE VOLUNTARYIST, June 1993.]