Mimesis Law
23 October 2019

Ken White’s 10 Libertarian Questions & The Criminal Justice System, Part 1

June 7, 2016 (Mimesis Law) – Popehat founder and occasional Fault Lines guest contributor Ken White had a particularly interesting post last week titled Libertarianism as Ten Questions Rather Than Ten Answers. Fault Lines managing editor Scott Greenfield discussed it as well, but he did so with a primary focus on free speech. Because Fault Lines is focused on criminal law issues, Ken’s article is a good lens for discuss here was well. Ken starts his list with this opening:

I’d like to propose presenting libertarianism as a series of questions rather than a series of answers or policy positions. Even if I don’t agree with people’s answers to these questions, getting them to ask the questions and confront the issues reflected in the questions would promote the values that I care about.

These are all questions that I think ought to be asked whenever we, as a society, decide whether to task and empower the government to do a thing.

At the start, there’s heresy in the set-up, at least if you’re in the “government is just a name for things we do together” crowd. And that’s before Ken really gets going.

Does the U.S. Constitution permit the government to do this?

Although we can quibble over the details, to one degree or another, the Framers intended the Constitution to constrain the scope of the federal government. So, the unfortunate part about this question is how rarely it gets asked prospectively. Sometimes that reason is political, in the case of pass it to find out what’s in it ACA. Other times, that reason might be due to the panic associated with a crisis, such as the legion of consequences falling out of the response to 9-11.

Consider Esam Hamdi. He was in Afghanistan when the CIA rolled into town and started throwing a lot of money around. Hamdi was arrested by Afghanis, who then turned him over to the U.S. as a Taliban fighter. Not only did he claim to be a relief worker, but he was also a U.S. citizen. Few if any asked (and probably no one cared) whether the Constitution would permit what the government did, i.e. imprison him and hold him without charge. And one of many consequences is that now we will likely run Guantanamo Bay until the last prisoner dies, despite being called by the President expensive, unnecessary, and serving as a recruitment brochure for our enemies.

What would this power look like if it were expanded dramatically in scope or in time?

Ken talks about how laws supposedly meeting a temporary problem become a creeping death in the legal system. And to illustrate his point, Ken refers back to the last days of the Roman Republic and the powers given to Pompey contributing to or ultimately causing the collapse. A historical example of this is slavery and all the accompanying legal oppression it took to keep the system going, including the Fugitive Slave Act. But Ken mentions the obvious, recent example of this, the anti-terrorism measures put in place after 9-11.

Al-Qaeda and the Taliban have been effectively destroyed as international terrorist organizations, bin Laden is dead, and the U.S. brought down several states associated with terrorism. Despite achieving the goals set out after 9-11, we’re still in full anti-terrorism mode. As a consequence, law enforcement resources have been diverted away from criminal investigations.

We know from the Snowden treason/patriotism that U.S. intelligence agencies continued to gather an incomprehensible amount of data on U.S. citizens. Oh, and there is the trillions of dollars spent on anti-terrorism and military efforts. While we tend to be bad decisions makers in emotional moments, if the conceivable end of the government intervention is in our homes, personal lives, and freedom, then I would like to think the public at large would be against that.

What would this obligation look like if exercised indifferently by unaccountable people?

Ken switches gears here and moves beyond the question of authority and scope of power to re-framing government promises in a more realistic way. My experience at the local level of government is that there are typically enough interested, well-meaning folks involved that local problems generally get resolved. But the more distance the person gets in administrating a government program or benefit, there is less social pressure to do so in an upright, thoughtful, and fair way. Ultimately, bureaucracy expands to meet the needs of the bureaucracy rather than the people it serves.

For example, the Office of Professional Responsibility is supposed to oversee the conduct of U.S. Attorneys. But it is secret and largely unaccountable, which has led to questions about its own conduct. Quis custodiet ipsos custodies?

Others have criticized the isolation of law enforcement officers. The combination of strong unions, low risk of a successful civil rights suit, and forgiving legal standard regarding the use of force, have worked together to create low accountability in some departments. As with federal prosecutors, it then falls to the individual to not succumb to indifference and low standards. And if you don’t hire good people in the first place, then that’s unlikely to happen. Arguably, too much of the system operates on the romantic but wrong assumption that public actors will always rise to the level of their better natures; instead of relying on a better system to keep everyone honest.

What would your worst enemy do with this power?

Another problem with the lack of accountability coupled with sweeping authority is bad people can do bad things. In contrast to the government failing to adhere to an obligation, this is the government actively injuring you. Hoover famously kept dossiers on many influential Americans, including President Kennedy. President Nixon kept an “enemies list,” and he punished the people on it. And the current U.S. President keeps a kill list.

Beyond a single enemy, there are opportunities for a small cadre of like-minded people to use government power to punish other that they perceive of their enemies. For example, the Inspector General determined that the IRS inappropriately targeted Tea Party groups. The Justice Department went after Senator Ted Stevens wrongfully.

All this brings to mind Lord Acton’s quote: “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you superadd the tendency of the certainty of corruption by authority.” In other words, power granted without appropriate checks either attracts people who will misuse it or corrupts people, who will then misuse it.

Does this power make a choice about moral, ethics, or risk that individuals ought to make?

Ken gets the ball rolling with a C.S. Lewis quote worth printing again:

My contention is that good men (not bad men) consistently acting upon that position [imposing “the good”] would act as cruelly and unjustly as the greatest tyrants. They might in some respects act even worse. Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive.

It would be better to live under of robber barons than under omnipotent moral busybodies. The robber barons cruelty may sometimes sleep, his cupidity may at some points be satiated; but those who torment us for their own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to heaven yet at the same time likely to make a Hell of earth. This very kindness stings with intolerable insult.

To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on the level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.

As more and more of our economy, civil life, and even private life is consumed by the federal government, it’s an important question. The freedom of choice implies a freedom to be wrong. Similarly, the freedom to risk implies the freedom to fail. But as more bureaucrats rule over lives, unseen but definitely felt, the reality implies that it’s a question we rarely consider.

The busybodies have been working to make sure we are safe from ourselves. Seatbelt and helmet laws, bans on smoking in public, bans on transfats, and bans on soda sizes are all governmental intervention to protect us from our own bad decision. Of course the argument usually involves the socialization of the cost of medical bills from not wearing a helmet or smoking, but that assumes that all healthcare costs should be socialized in the first place. And then there are blue laws, bans on sports gambling, and even bans on fantasy football. What would the humanitarian do without someone to save?

Perhaps most obviously and controversially of these issue is drug use. Broadly speaking there are two ways to handle drug abuse, as a public health issue or a law enforcement issue. Portugal and the United States are at the two extremes. 15 years ago, unable to fund the law enforcement model, Portugal went to decriminalization, which has been seen as a relative success. One the other hand, the costly U.S. model has been criticized by law enforcement as failure. But to those that see drugs as an inherently violent crime, it is a struggle worth the cost.

Part two will post on Friday, and discuss the other five questions.

4 Comments on this post.

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  • Eva
    7 June 2016 at 4:16 pm - Reply

    Fault Lines, Mr. White, Harvey Silvergate, and Radley Balko have really opened my eyes to what I perceive as gross inequities in the criminal justice system. I thank them all despite the disturbing revelations.

    Also some of these individuals have opened my eyes to the ideology of Libertarism which addresses these issues. This is what I understand from that perspective. We have too many laws and not enough accountability for the people who enforce those laws. I agree completely and I believe most people would come to that same conclusion.

  • Brad
    10 June 2016 at 7:22 am - Reply

    Always wanted to see a picture of Mr. White. He looks older than I would have thought, but he looks nice. I guess this is probably a bit off topic.

  • Ken White’s 10 Libertarian Questions & the Criminal Justice System, Part 2
    10 June 2016 at 9:53 am - Reply

    […] Libertarianism as Ten Questions Rather Than Ten Answers. On Tuesday, the first five questions were addressed. This is part two, addressing the rest of Ken’s […]

  • Ken White’s Unnecessary Confession
    28 June 2016 at 9:40 am - Reply

    […] reader of Popehat, I think Ken and I probably see eye-to-eye on many things. For example, I wrote these posts discussing Ken’s article about 10 libertarian questions. But Ken and I currently come from […]