Libertarianism

Announcement: Jim Bennett and I are working on a book together.

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It will be about the American way of life, where it came from, where it’s going and what we should be doing. So far it looks like we will have everything in there: The Magna Carta, the Singularity, Resilient Communities, the Haymarket Riot, the Anglosphere, the Constitution, Libertarians and Conservatives having a group hug, the inevitable doom of our would-be overlords, pretty much everything including the kitchen sink. We are still working on the book proposal. But we are moving along.

So far the awesomeness is only nascent, but the grandeur of the vision is beginning to grip me.

I will be posting on the blog, shamelessly seeking assistance from our staggeringly brilliant readers, as we get into the research and writing. The CBz hive-mind is a juggernaut which nothing can withstand for long.

I plan to pick your brains, dear friends.

You have been warned!

I Think I See What Glenn Beck is Doing (Updated)

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The Glenn Beck rally is confusing people.

Why?

He is aiming far beyond what most people consider to be the goalposts.

Using Boyd’s continuum for war: Material, Intellectual, Moral.

Analogously for political change: Elections, Institutions, Culture.

Beck sees correctly that the Conservative movement had only limited success because it was good at level 1, for a while, weak on level 2, and barely touched level 3. Talk Radio and the Tea Party are level 3 phenomena, popular outbreaks, which are blowing back into politics.

Someone who asks what the rally has to do with the 2010 election is missing the point.

Beck is building solidarity and cultural confidence in America, its Constitution, its military heritage, its freedom. This is a vision that is despised by the people who have long held the commanding heights of the culture. But is obviously alive and kicking.

Beck is creating positive themes of unity and patriotism and freedom and independence which are above mere political or policy choices, but not irrelevant to them. Political and policy choices rest on a foundation of philosophy, culture, self-image, ideals, religion. Change the foundation, and the rest will flow from that. Defeat the enemy on that plane, and any merely tactical defeat will always be reversible.

Beck is unabashed that God can be invoked in public places by citizens, who vote and assemble and speak and freely exercise their religion. They are supposed to be too browbeaten to do this. Gathering hundreds of thousands of them to peaceably assemble shows they are not. But showing that the people who believe in God and practice their religion are fellow-citizens who share political and economic values with majorities of Americans is a critical step. The idea that these people are an American Taliban is laughable, but showing that fact to the world — and to potential political allies who are not religious — is critical.

Beck is attacking the enemy at the foundations of their power, their claim to race as a permanent trump card, their claim to the Civil Rights movement as a permanent model to constantly be transforming a perpetually unjust society.

He is nuking out the foundations of the opposition’s moral preeminence, the very thing I proposed in this post.

Ronald Reagan said we would not defeat Communism, we would transcend it.

Beck is aiming to have America do the same thing to its decaying class of Overlords, transcend them.

Beck is prepping the battlefield for a generation-long battle.

He is that very American thing: A practical visionary.

See, simple.

Restore pride and confidence to your own side, and win the long game.

As Ronald Reagan also said, there are simple solutions, just no easy solutions.

God bless America.

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[UPDATES BELOW THE FOLD]

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The “Overton Window” and how to apply it

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With Glen Beck having discovered the “Overton Window” more than 2 years after I did, I thought this would be a great time to re-post my essay/post from Jan. 2008.

Being new here, I thought this might be an nice place to repost it.
Note that this was posted pre-Obama and pre-tea party. I think it is still wholly relevant, but I luxuriate in the fact that the “hand is on the other foot now.”
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I found a good post over at a pretty good lefty blog. Apparently, some Champaign-Urbana blogger named “The Squire” started blogging again, and he posted something pretty significant here. (clicking the link will get you an interesting and polite discussion)

The poli-sci concept is called “the Overton Window,” and if you want the very short version of it, I can boil it down to five words.

“The Limits Define the Center”

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The Privilege, or Immunity, of Bearing Arms

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Sometime this spring, the U.S. Supreme Court will decide whether the Second Amendment to the Constitution applies to state and local governments. Many enthusiasts of gun rights might still be surprised to learn that the Second Amendment has never applied to state and local governments. It has protected, at least recently,  the right to keep and bear arms against infringements by only the federal government and its enclaves, like the District of Columbia.

Actually, none of the Bill of Rights applies to the states, but the Supreme Court has decided that many of the rights it provides are protected by the Due Process Clause of the Fourteenth Amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law”), which does apply to the states. Advocates of gun rights are very interested in whether the Court will incorporate the right to keep and bear arms into the Fourteenth Amendment. But many conservative legal activists and academics are more interested in whether a different clause of the Fourteenth Amendment is used for that purpose. In their view, the framers of the Fourteenth Amendment intended that the Privileges or Immunities Clause of the Fourteenth Amendment (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”) would protect substantive rights while the Due Process Clause, as its name implies, would protect procedural rights. The gun  control case that the Supreme Court is about to decide, McDonald v. City of Chicago, is seen as an opportunity to right an historical wrong, and so much more.          

In some circles, it is an article of faith (and  partly superstition) that the Privileges or Immunities Clause was fatally misinterpreted at the outset  by the Slaughter-House Cases and if only that case could be overturned economic liberties, which the Supreme Court has ignored since the New Deal, could enjoy a new springtime under a reborn Privileges or Immunities Clause.

The Supreme Court’s 1873 decision in the Slaughter-House Cases was the first time the Court interpreted the Fourteenth Amendment, which had been ratified just five years before. In that case the Court decided that an amendment whose purpose was “the freedom of the slave race [and] the security and firm establishment of that freedom” did not prevent the state of Louisiana from requiring New Orleans butchers to slaughter  livestock at a location downriver from the city. The Court said that the Privileges or Immunities Clause   protected only rights of national citizenship, which did not include the right to butcher animals anywhere in New Orleans free of regulation. The examples the Court then gave of what were rights of national citizenship weren’t very helpful; the only one that has had any practical use has been the right to travel interstate.

As a result, the Privileges or Immunities Clause is the last frontier of the Constitution. Conservatives as well as liberals have been  eager to open it up for the cultivation of new rights—and old ones. The libertarian Institute for Justice, which filed an amicus brief in McDonald, had previously tried  without success  to get the  Slaughter-House Cases  reversed in a series of cases in which they argued that the Privileges or Immunities Clause protected a right to earn a living. (I represented their opponent in one of them.)

This time the right to keep and bear arms is the vehicle, but the objective of eventually regaining protection for economic liberties seems to be the same. Alan Gura, counsel for the petitioner in McDonald, hinted at that  objective in his brief by complaining that “[s]tate violations of rights understood and intended by the ratifying public to receive significant Fourteenth Amendment protection are not meaningfully secured by federal courts.” At oral argument, the justices struggled to get Gura to divulge what those insecure rights might be. Finally, at the very end of the argument Justice Alito got him to admit that they included the right to contract.

A remark by Justice Thomas in an earlier case encouraged this Privileges or Immunities project, but he has also said that while the clause should be reconsidered it shouldn’t be used expansively. There didn’t seem to be any other enthusiasm for the Privileges or Immunities project on the bench during oral argument. Justice Scalia said to Gura, “what you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence.”  

If the Supreme Court does incorporate the Second Amendment, I suspect it will do it the old-fashioned way and leave the Privileges or Immunities Clause and the Slaughter-House Cases in peace. That is probably just as well given that the Supreme Court and the lower federal courts will soon be   getting more Obama appointees who  may be expected to have designs of their own for the Privileges or Immunities Clause. There is no reason to believe that the federal judiciary will be any more protective of economic liberties and property rights under the opaque Privileges or Immunities Clause than it has been under the Due Process, Takings, and Contracts Clauses, which actually contain the words property, liberty, and contract.

Reviving the Privileges or Immunities Clause has intellectual and historical appeal, but it is no substitute for the harder task of convincing judges and the politicians who select them that property rights are human rights.