On the matter of governmental power, I tend to subscribe to the Starship Troopers model. Nobody gets to vote until they demonstrate humility and selfless sacrifice for the community. Government usually sucks because it elevates the least humble and selfless among us.

Guest Blogger continued, “The alternative to government protecting our individual rights is for all of us to do it ourselves. That is fine for some folks who can hole up in bunkers with automatic weapons, but what about the weak? And do we really want to live that way?” Again, as good an argument against laissez faire capitalism as could be.

Guest Blogger continued, “Sure, there’s an individual sitting at counsel table whose freedom we are trying to take away, but there’s also another individual, perhaps a little old lady or even a small child, whose rights have been violated by the criminal individual, often in unspeakable ways.” The problem is that by the time that “criminal individual” is sitting at the table, the State has typically already failed to adequately protect his (and his parents’ and their parents’) rights to adequate food, housing, and physical and mental health care, greatly contributing to (if not the primary cause of) the criminal act. So it’s kind of late in the day for the government to play the hero. Inefficient, too. If we focused our attention on the front end and the root causes of criminal acts, we wouldn’t need much in the way of a back end and prosecutors. (By the way, persons are not “criminal,” acts are “criminal.”)

Mark,

I will take exception to your claiming deterrence of others as a legitimate purpose of punishment. It ought to be considered unethical to harm people for the purpose of teaching other people something. For example, if a judge determines that, based on the circumstances of the offense and a defendant’s background, he deserves 10 years imprisonment, but that if he is given a 25-year sentence it will deter a future crime, is it just for the judge to give him the 25 year sentence? Isn’t this only punishing the defendant for the future crime that somebody else would have committed? I actually think there are some serious due process issues implicated in that view.

If we left it to Government, those rights would all be worth no more than the paper they are written on. Look at the cases that recognized Constitutional rights for the first time: in every one, Government was the losing side.

An interesting case study: Randy E. Barnett used to be a prosecutor in Cook County, Ohio. He quit when he found that he could no longer be a prosecutor in good conscience, because so many of the laws he was required to apply were victimless crime laws. He had no problem putting muggers, rapists, thieves and murderers away: he would not keep the job if it required prosecuting drug users, etc.

Prof. Barnett is now the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center, and he is the author of many books including Restoring the Lost Constitution.

Good points.

Totally evasive.

Your blog.

: )

I disagree with #6 as stated, because you infallible humans (I used to say “we” but people didn’t seem to get that I was politely referring to them as well) can never have the godlike wisdom to know what each other deserve. The only thing that is off the table is retribution. We can still punish people to deter them, deter others, incapacitate them, and rehabilitate them. That’s not anarchy; it’s punishment based on what we know rather than what we’d like to believe. I would agree if you said that some people need to be deprived of their liberty, for their own good and that of society.

Or do you disagree with No. 6?

With respect to our regrettable lack of omniscience, that argument is going nowhere fast. Let’s accept that, while we could be brains in vats somewhere, we live in an objective reality and courts of law are one way we have of resolving disputes and establishing “facts.” Though the system, dependent on frail humanity, is flawed, it does its job the vast majority of the time. If you take your argument to its logical conclusion, then no one, nowhere, could ever be in a position to judge anything. Thence anarchy.

I’m probably never going to change your worldview, but let me take issue with one last thing you said and pose a little experimental survey question. You say the State is the complainant in “most” of the cases out there. This is flat out wrong. Your next, more restrictive statement is wrong, too.

I propose a simple test which I think will reveal just how flawed your prism is, and I’ll toss it out to your liberal — excuse me, liberatarian? –Nah, let’s go with ANTI-AUTHORITARIAN readers: Please give me your best guesstimate of how many prisoners in Texas are currently incarcerated for narcotics offense. (NO CHEATING.) If you want to take it further and broaden the net, how many inmates do you believe are incarcerated for offenses where the State of Texas is the complainant and no one’s individual rights have been infringed? Remember, I want your best, knee-jerk, gut reaction. Anyone can look it up. Let’s see what the gap is between our perception and reality, shall we?

GB, thanks for the testimonial.

I agree with you more than I disagree. I’m not an anarchist. Government is inevitable. Absent some organized government, the strong would dominate the weak to the detriment of the weak, and power would be more and more consolidated in the hands of a few of the strong, until the power structure resembled feudalism. I think that’s pretty much how it happened in the western world. So I agree with you up through the first paragraph of your #4.

You lose me at #4.5. You’re not representing the complainants in criminal cases; you’re not “enforcing the rights of aggrieved individuals.” If there is even a complainant with a righteous cause, any damage to his rights was most likely done before you became involved. Occasionally you are protecting the weaker from the stronger — itself noble if done right. Safety has a price, and even if you were prosecuting only bad dudes, who need to be removed from society (not being omniscient, I can’t say whether they deserve it or not, and neither can you), exacting too high a price from the constitution for the temporary safety you provide would be ignoble.

In an imaginary world that is pretty and shiny with rainbows and ponies (we’ll call it “Dickwolfia;” there’s always an episode on) the job of a prosecutor is a noble one. But in the real world, the “plenty of cases” where the State is the complainant are actually most of cases. In most criminal cases, nobody has been hurt or threatened with imminent harm. In the real world, it is inevitably the prosecutor arguing for the diminution of the constitutional rights of all of us. If I were wrong about government being the enemy of freedom, it would not be so. The cases in which you aren’t protecting the weak swallow up the cases in which you are, and make my point for me.

The job is what you make it. If it involved only prosecuting people who need to be removed from society for their clear inability to play well with others, I’d be with you. But it doesn’t, and as another eminently qualified dogcatcher candidate said, “we can’t choose the laws we prosecute.” That makes you bureaucrats, official women with guns.

When Britain’s citizens in North America sought independence, by the way, their government’s response was, “You guys need us to keep you safe from the indians!”

Whee!

Don’t be sad that the Fourth Amendment’s been “temporarily” appropriated, you still have the First!

Now’s not the time for serious discussion about whether the executive branch can have you ‘disappeared’ or to examine things like whether the Geneva Conventions apply during an unending “war,” it’s time to surrender liberty for temporary safety no matter what that pesky Constitution or those old fashioned Founding Fathers warned us about.

Whether or not our Constitution is circling the drain or not isn’t the important question. What’s important is while turning round and round this quickly we can all take a moment to laugh and say “whee!”