Monday, July 21, 2014

Are Libertarians the New Communists?

by Dr. Gerard Emershaw
Orange is the new black. Tropes are the new memes. And libertarianism is the new communism. What? Statists Nick Hanauer and Eric Liu have recently published a Bloomberg piece entitled “Libertarians Are the New Communists.” Hanauer is a venture capitalist and Liu is a former speechwriter in the Clinton White House. Given that both these individuals depend upon big government and corporatism to make their bones, it is no surprise that they would decry freedom.
Hanauer and Liu rightly claim that wherever communism was adopted, it has led to “misery, poverty and tyranny.” They then argue that if “extremist libertarians” ever came to power, the results would be the same. They refer to these “extremist libertarians” as “nihilist anti-state libertarians” who are allegedly aiming to shut down the state. They identify the Koch brothers, Grover Norquist, Ted Cruz, Ron Paul, and Rand Paul as such libertarian nihilists.
Creating a straw man by relying upon a tortured interpretation of Ayn Rand’s objectivism and applying it to all libertarians, they claim that radical libertarianism “assumes that humans are wired only to be selfish.” They also argue that radical libertarianism “assumes that societies are efficient mechanisms requiring no rules or enforcers, when, in fact, they are fragile ecosystems prone to collapse and easily overwhelmed by free-riders.”
They further contend that not only would radical libertarianism be a disaster if it ever became the philosophy of the leaders of the federal government, but that radical libertarianism would in fact be impossible to apply to a functioning society. In their fevered imaginations, they see: “A President Paul [who] would rule by tantrum, shutting down the government in order to repeal laws already passed by Congress.” Of course, these unoriginal thinkers could not possibly write a hit piece on libertarianism without playing the Somalia card: “It is in failed states such as Somalia that libertarianism finds its fullest actual expression.”
Hanauer and Liu’s solution is uninspiring and unoriginally communitarian:
The alternative to this extremism is an evolving blend of freedom and cooperation. The relationship between social happiness and economic success can be plotted on a bell curve, and the sweet spot is away from the extremes of either pure liberty or pure communitarianism. That is where true citizenship and healthy capitalism are found.
True citizenship enables a society to thrive for precisely the reasons that communism and radical libertarianism cannot. It is based on a realistic conception of human nature that recognizes we must cooperate to be able compete at higher levels. True citizenship means changing policy to adapt to changes in circumstance. Sometimes government isn’t the answer. Other times it is.
Hanauer and Liu do say something correct about libertarianism. It is “the ideology that holds that individual liberty trumps all other values.” This is undeniably true because all other values are dependent on freedom. Unless one is an autonomous and has the ability to exercise natural rights to life, liberty, and property, then no other values can take root, let alone be enjoyed. Natural rights are possessed by human beings in virtue of their humanity. The government does not grant natural rights and may not take them away. To deny the existence and paramount nature of natural rights is to deny humanity itself.
Is it impossible for “extreme libertarianism” to be the governing philosophy of the nation? It certainly was not impossible for the first century of the existence of the Republic when by and large the federal government was a minarchist state—particularly when compared with the bloated warfare/welfare “communitarian” state so loved by corporatist statists like Hanauer and Liu. With minimal federal regulations, no welfare state, and no income tax, the United States grew from a weak agrarian former British colony into the world’s greatest economic power. How had libertarians such as Jefferson, Madison, and Monroe managed not to turn the United States into a failed state? There was hardly “misery, poverty, and tyranny.”
The radical libertarianism of the individuals named by the authors is a form of Constitutional minarchism. Those such as Ron Paul seek to shut down only the parts of government that are unconstitutional. This is akin to an oncologist treating a patient with cancer. Such a physician is anti-cancer cells, not anti-healthy cells. Not all libertarians are objectivists and most do not hold that psychological egoism is true. Statists such as Hanauer and Liu believe that the only kind of cooperation that is possible is collectivist “cooperation” at the barrel of a gun. Coerced cooperation is not cooperation at all. Coerced altruism is not altruism at all. The idea that libertarians do not believe in cooperation is the most disingenuous variety of straw man argument. Libertarians believe in the freedom to cooperate with those whom one chooses to associate. This is the very backbone of civil society. Libertarians accomplish things by forming businesses, PACs, nonprofit organizations, and all manner of informal cooperative and voluntary associations. Libertarians are anything but solitary dog-eat-dog Hobbesians or Social Darwinists. The kind of cooperation that Hanauer and Liu have in mind is no doubt phony forced cooperation—draconian taxation and regulation, corporatist wealth redistribution, Nanny State “nudging,” etc.
The notion of President Paul (whether Ron or Rand) ruling by tantrum is ridiculous. Unless, of course, “ruling by tantrum” is what the cool kids are calling ruling by the Constitution these days. President Paul would likely veto many unconstitutional or wasteful bills. It is also likely that President Paul would refuse to enforce some legislation passed by Congress. However, the President takes an oath to defend the Constitution. This oath is violated if he or she enforces unconstitutional legislation. Would Hanauer and Liu wish the President to enforce laws that brought back slavery or segregation? Laws that made homosexuality into a capital federal offense? Hopefully not, but perhaps if these racist and homophobic laws were for “the greater good.”
The old Somalia canard hardly deserves addressing. However, here goes. Somalia is anything but a libertarian state. The organization Freedom House ranks the Somali government as among the most repressive in the world. While perhaps it is a weak despotic government, it is despotic nevertheless. A minarchist libertarian government would be a limited government that safeguarded the natural rights to life, liberty, and property. It would be far closer to the early American government minus the racist scourge of statist slavery than it would to the government of Somalia.
What Hanauer and Liu fail to understand is that the communitarian “sweet spot” of which they fantasize is a pipe dream. If government is given an inch, it takes a million miles. The government they worship is the one which supported slavery, herded Japanese-Americans into concentration camps, experimented on African American men without their consent, and spies on each and every American citizen as if they are traitors and criminals. Ultimately, freedom wanes unless centralized government is chained down by the people using the Constitution. But the truth is that such statists do not fear the government. What they fear are the people. This is indicated by their disdain for the concept that “societies are efficient mechanisms requiring no rules or enforcers, when, in fact, they are fragile ecosystems prone to collapse and easily overwhelmed by free-riders.” They clearly must believe that human beings are evil and require a police state to rule them when in fact all evidence is to the contrary. They view others as “free riders” when it is the progressive corporatists and courtiers who are the true “free riders.” What they are suggesting is an Americanized version of fascism. 

Friday, July 18, 2014

Hobby Lobby and the Perpetuation of Obamacare

by Dr. Gerard Emershaw
In Burwell v. Hobby Lobby, the Supreme Court ruled that the contraceptive mandate of the Patient Protection and Affordable Care Act (PPACA) violates the First Amendment religious rights of closely held for-profit corporations by violating the Religious Freedom Restoration Act (RFRA). The RFRA states: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” By a 5–4 margin along traditional ideological lines, the Court struck down the contraceptive mandate of the PPACA in the case of closely held for-profit corporations which have religious objections. The owners of Hobby Lobby claimed that being required to cover certain forms of contraceptives such as Plan B and IUDs violated their religious rights because they consider these particular contraceptives to be akin to abortion.
Justice Alito stressed that the ruling was very narrow and only applied to closely held for-profit corporations objecting to a law on religious grounds. He claimed that few situations would arise which would be relevant under the holding. While the First Amendment religious freedom aspect is the one which most commentators have focused upon, there is a far more important aspect that has been overlooked. It does bear noting, however, that granting a corporation—even a closely held one—religious rights is dubious. A corporation is not identical with its shareholders. If business owners wish to have their company as their alter ego, then they are perfectly free to establish their business as a sole proprietorship or a partnership. By forming a corporation and gaining the benefit of limited liability, shareholders in a closely held corporation give up the right to use their business as their alter ego. A corporation is a fictional person which has a fiduciary duty to produce profits for its shareholders. It is simply not the kind of entity which has religious values. While the personhood that is granted to corporations is a legal fiction aimed at defending the Constitutional rights of shareholders, granting freedom of religion to a corporation seems to be taking things at least one step too far.
The more important feature about the case is what it demonstrates about the future of Obamacare. Hobby Lobby is not going to derail Obamacare. Employees of corporations such as Hobby Lobby will either do without one benefit of the PPACA or the Obama administration will find some other way to accomplish the same end as the contraceptive mandate—most likely allowing such corporations to pass the buck and force taxpayers as a whole to somehow foot the bill. Justice Alito—a supposedly conservative Justice—suggested as much in his opinion. The manner in which socially conservative Republicans have celebrated this holding foreshadows an ugly truth. Obamacare is here to stay. Any talk among Republicans about getting rid of the PPACA appears to be nothing but lip service. Given that neoconservatives do not care about deficits or about domestic policy in general and given that RINOs were in favor of corporatist health care back when it was viewed as a more free market alternative to a socialistic single payer system, this should come as no surprise. Republicans have a nasty habit of eventually acquiescing to new progressive Nanny State programs. While the GOP once opposed the programs of the New Deal and the Great Society, it has long since resigned itself to making minor tweaks to these socialistic programs. These so-called conservatives are content to save taxpayers pennies on the dollar by making welfare, unemployment insurance, Medicare, etc. a little more efficient. Even Ronald Reagan for all his huffing and puffing about eliminating the Department of Education ultimately did nothing about it. It is alive and well. Bigger and better than ever. Well, bigger at any rate.
Obamacare is patently unconstitutional. However, it appears to be here to stay. The GOP is likely to use it as a scapegoat when it needs to toss red meat to its base, but like the New Deal, the Great Society, and the Department of Education, the PPACA is going nowhere. In addition to using it as a symbol of the progressive bogeyman, the GOP will now apparently use Obamacare to fascistically pick winners and losers in a crony capitalist fashion. This First Amendment loophole created in Hobby Lobby is likely the first of many. Exemptions to particular mandates in Obamacare will be used by both Democrats and Republicans as a way of granting favors to partisan supporters.
Justice Roberts should take no solace in the fact that he defended the Constitution in the Hobby Lobby case. Two years prior he ignored the Constitution so egregiously that he destroyed his reputation beyond redemption.

Tuesday, July 15, 2014

California Democrats Wish to Police College Bedrooms

by Dr. Gerard Emershaw

Democrats often criticize Republicans for attempting to put government in American bedrooms. With the preoccupation that social conservatives on the right have with homosexuality, contraception, and marriage, Democrats often have a point. However, big government Progressive Democrats are no less willing to police the bedroom when it fits their agenda. Democrat Party lawmakers in California are advancing S.B. 967, a bill which requires California college students to provide “affirmative consent” before engaging in sexual activity. S.B. 967 has passed the California Senate by a vote of 27–9 and is now in the Assembly awaiting a vote. The bill is a reaction to a report that listed 55 schools which are under investigation by the United States Department of Education for allegedly mishandling sexual assault and harassment complaints by students. Four California schools were on this list.

S.B. 967 would require any post-secondary educational institute receiving states funds to adopt policies concerning “sexual assault, domestic violence, dating violence, and stalking” that include “an affirmative consent standard in the determination of whether consent was given by a complainant.” The key section of the bill concerning this “affirmative consent standard” reads as follows:

An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

Another key element is that on a California college campus, the standard for establishing a sexual assault complaint is reduced by the bill to a preponderance of the evidence standard.

The first issue concerns what precisely constitutes “affirmative consent.” This issue involves the metaphysical question of what it is, the epistemological question of how the sexual actors know, and the practical question of how evidence is established. Alas, these questions will always be problematic for criminal charges of sexual assault. However, they become even more problematic here where the standard is merely that of preponderance of the evidence. The party who is a more convincing speaker, has a better advocate, or is simply more charismatic could win the day. When the education and reputation of college students is at stake, this makes it seem dubious whether due process is actually being satisfied.

If this bill becomes law, it could lead to the necessity of schools adopting official policies that are similar to Antioch College’s much lampooned 1991 policy. The basics of the failed Antioch College policy can be summarized as follows:

·         Consent is required each and every time there is sexual activity.

·         All parties must have a clear and accurate understanding of the sexual activity.

·         The person(s) who initiate(s) the sexual activity is responsible for asking for consent.

·         The person(s) who are asked are responsible for verbally responding.

·         Each new level of sexual activity requires consent.

·         Use of agreed upon forms of communication such as gestures or safe words is acceptable, but must be discussed and verbally agreed to by all parties before sexual activity occurs.

·         Consent is required regardless of the parties’ relationship, prior sexual history, or current activity (e.g. grinding on the dance floor is not consent for further sexual activity).

Sex is a private and intimate activity. It is not facetious to believe that S.B. 967 could lead to ridiculous contracts that must be signed by California college students who wish to engage in sexual activity. Why should the government be so involved in this sphere in the first place? Should the government be doing something that so demoralizes and degrades that which is so private and potentially so emotional? Is such a policy likely to prevent sexual assaults or is it more likely to create more false accusations which are difficult to defend against?

In the context of a college, a charge of sexual assault or the like is far more akin to a criminal charge than a civil matter. Despite the fact that criminal sanctions are not in play, a college is like a microcosm of society. And being labeled with such a charge is like being branded with a scarlet letter. Laws against sexual assault—whether criminal or institutional—must balance defending potential victims with defending the rights of the accused. It is part of the very social and legal fabric of the United States that it has chosen to err on the side of the rights of the accused. This in no way diminishes the importance of defending individuals against sexual assault, harassment, stalking, etc. It is precisely because these matters are so important that safeguards must be in place to defend the rights of the accused. American society is rightly more concerned with assuring the rights of the accused are completely safeguarded in the case of serious offenses such as murder, treason, rape, terrorism, etc. than in the case of minor offenses like jaywalking, shoplifting, or vandalism.

The key is to ensure that colleges respect those who file complaints for sexual assault, domestic violence, dating violence, and stalking. When such complaints are made, the school in question should treat the person making the complaint with dignity and fully investigate the complaint in a professional manner. It may very well be that colleges should simply steward victims through the process of  making criminal complaints in such matters and avoid becoming involved. Colleges may be well-advised to stick to handling cheating, plagiarism, and other academic dishonesty matters and leave such serious criminal matters to law enforcement and the courts.

This does not require and should not involve the state moving into the bedrooms of college students. When the state begins to so collectivize people that it turns their most intimate expressions of humanity and selfhood into legalistic algorithms, then it is in the process of dehumanizing individuals and turning them into mere drones. If blowhard progressives and socially conservative moralists ever decide to compromise and develop bipartisan laws which satisfy both political correctness and the Christian fundamentalism, one day the government may literally have Orwellian telescreens in everyone’s bedroom, and government creeps may be voyeuristically watching us all.

Monday, June 30, 2014

A Few Modest Thoughts on the Bergdahl Exchange

by Dr. Gerard Emershaw

The following is a list of thoughts on President Obama exchanging five Taliban prisoners held at Guantanamo Bay for captured Sergeant Bowe Bergdahl.

1. Innocent Until Proven Guilty

Regardless of accusations against Bergdahl, the American justice system—including the military justice system—is premised on the concept of innocent until proven guilty. Unless and until Sergeant Bowe Bergdahl is court martialed and convicted, he is simply an American army sergeant who was captured and held by the Taliban. Rushing to judgment on Bergdahl would be a foolish mistake. Just ask the French about Captain Alfred Dreyfus. The same neocon operatives who in an Orwellian fashion made distinguished Vietnam War veteran John Kerry seem like a cowardly traitor and the frat boy weekend warrior George W. Bush seem like a war hero appear to be at work in the Bergdahl story. Regardless of what turns out to be true about the nature of Bergdahl’s capture by the Taliban, the hatred aimed at him by neocons provides a stark counterexample to any rhetoric about supporting the troops. For neocons, troops are nothing more than cannon fodder to be used to fight pointless corporatist wars of choice. Bowe Bergdahl volunteered to serve his country. That is more than enough to earn him the benefit of the doubt until all the facts are in. Serving in the military is far more than chickenhawks like William Kristol, Robert Kagan, Max Boot, Paul Wolfowitz, or the rest of the Trotskyite gang that couldn’t think straight ever did.

2. Mental Health Issues

Assume that Sergeant Bowe Bergdahl did walk off his base and become AWOL. How can anyone be certain that mental health issues were not an important causal factor behind his actions? Prior to joining the army, Bowe Bergdahl was discharged from the Coast Guard for psychological reasons. If he was not psychologically fit to serve in the Coast Guard, might it also not be the case that he was unfit to serve in the army?

Bergdahl also told his parents that he witnessed an Afghan child run down and killed by a military vehicle. If this actually occurred, then it is possible that it led to him suffering PTSD. If it did not actually occur, but he believes that it did, it is a possible sign of mental illness.

When Bergdahl slipped away from his camp, he was armed only with a knife, water, a digital camera, and a diary. Walking out into a hostile terrain filled with potentially deadly enemy insurgents is not prima facie the kind of thing that a mentally stable individual does. The point is that one cannot be certain about his mental state at the time he walked away from his post.

What is certain is that Bergdahl requires mental health care after five years in captivity. Bergdahl has claimed that he was tortured and kept in a cage by his captors. The Taliban is notorious for using torture, so Bergdahl’s claims are hardly implausible. Draft dodging Senator Saxby Chambliss is skeptical about Bergdahl’s torture claims, but his treatment of Max Cleland in the 2002 election demonstrates what Senator Chambliss thinks of veterans.

If Bergdahl does turn out to have been suffering from PTSD or other form of mental illness, he may well become emblematic of the failed neoconservative/neo-progressive wars of choice in the Muslim world. He will be another disposable human being cast aside by the warmongers after he was no longer useful. While it happened on President Obama’s watch and he is responsible, the VA scandal is a symptom of the attitudes that both parties have had toward American military personnel for a long time. The anger toward Bowe Bergdahl just confirms this.

3. 5 for 1

President Obama traded five Taliban prisoners in exchange for the return of Bowe Bergdahl. Israel—a nation that faces actual terror threats and does not need to cook up phony terror plots to foil like the FBI does—traded 1,027 Palestinian and Arab-Israeli prisoners in 2006 in order to bring about the release of its soldier Gilad Shalit. Of these prisoners, 280 were serving life sentences. Combined, the released prisoners were responsible for the deaths of 569 Israelis. This deal was authorized by Israeli PM and Likud Neocon Benjamin Netanyahu. If an Israeli soldier is worth 1,000 Palestinians to the Israeli government, what does it say about the United States government that so many think that an American soldier was not worth 5 Taliban insurgents?

According to Brig. Gen. Mark Martins, the chief prosecutor in the military commission, the five Taliban prisoners exchanged for Bergdahl—Abdul Haq Wasiq, Mullah Norullah Noori, Mullah Mohammad Fazi, Mullah Khairullah Khairkhwa, and Mohammad Nabi Omari—were all unlikely to be successfully prosecuted. If they are not convicted criminals, then these men—as unsavory as they may be—are essentially POWs. The Taliban is not a terrorist organization but is an insurgency made up of members and supporters of the deposed fundamentalist Afghan government. As such, the United States should be planning on releasing such fighters now or in the not too distant future. When the Nuremberg Trials were completed, the United States did not hold German or Japanese POWs indefinitely. If the United States was not afraid of soldiers who fought for the Axis, then it should not be afraid of soldiers who fought for the Taliban. If such an insignificant group as the Taliban is viewed as a legitimate threat to the United States, then the nation is simply not as great or as brave as it once was.

4. Impeachment

In the area of foreign policy, there are several things which President Obama has done which could technically constitute impeachable offenses. Among these actions are his unconstitutional “kinetic military action” in Libya, his drone campaign in the Middle East, and his assassination campaign which led to the deaths of American citizen Anwar al-Awlaki and his son. However, President Obama moving the five Taliban members from Gitmo without Congressional authorization is not among those potential impeachable offenses.

Under the Constitution, the President is Commander-in-Chief of the armed forces. The Guantanamo Bay detention facility is a military prison. Whether President Obama signed the legislation requiring the President to notify Congress in advance regarding the movement of detainees from Guantanamo Bay is irrelevant. The President may not consent to unconstitutional actions.

The Constitution grants Congress the power to declare war. Congress has unconstitutionally ceded this power to the executive branch. However, enumerated powers are not something that can be traded. Congress cannot assume the power to have advanced knowledge or input into the movement of military prisoners just because it has given up powers elsewhere to the President. Article I, Section 8 grants Congress the power to “make Rules concerning Captures on Land and Water.” While charitably this may grant Congress the power to make laws concerning how prisoners which will be sent to Guantanamo Bay are captured, there is nothing in the Constitution which gives Congress any power over these detainees once they are captured.

The main reason that Republicans in Congress have been so quick to seize on this point is that it is a very unique situation that is not likely to be repeated. Therefore, there is no risk of discouraging the next Republican President from being an Imperial President. Neoconservatives and other militaristic Republicans want their party’s next Commander-in-Chief to be able to unilaterally wage war like Caesar. Therefore, they are far less likely to criticize President Obama from doing the same in Libya or for his drone campaign.

Friday, June 27, 2014

On the Washington Redskins’ Name Trademark Cancellation

by Dr. Gerard Emershaw

In a 2–1 decision the Trademark Trial and Appeal Board cancelled the name trademark of the NFL’s Washington Redskins. The sole issue that was considered by the Board was whether the professional football team’s name violated Section 2(a) of the Trademark Act of 1946, 15 U.S.C. § 1052(a). This law states that “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it”:
Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute; or a geographical indication which, when used on or in connection with wines or spirits, identifies a place other than the origin of the goods and is first used on or in connection with wines or spirits by the applicant on or after one year after the date on which the WTO Agreement (as defined in section 2(9) of the Uruguay Round Agreements Act [19 USC §3501(9)]) enters into force with respect to the United States.
Therefore, the only question is whether the team nickname “Redskins” disparages American Indians. The first recorded use of the word occurred on October 9, 1813 in The Weekly Register. The article contains quotes from a St. Louis man concerning an expedition that was being led by General Benjamin Howard. The man said that this expedition was to “route the savages from the Illinois and Mississippi territories.” The man continued: “The expedition will be 40 days out, and there is no doubt but we shall have to contend with powerful hordes of red skins, as our frontiers have been lined with them last summer, and have had frequent skirmishes with our regulars and rangers.” Therefore, ‘Redskin’ was coined as a synonym for ‘savages’ in describing American Indians.

Dictionaries tend to support the view that ‘Redskins’ is a disparaging term. These dictionaries are hardly considered bastions of political correctness. Merriam-Webster states that the term is “usually offensive.” The American Heritage Dictionary calls it “Offensive Slang” and states that it is “used as a disparaging term for a Native American.” characterizes it as “disparaging and racist.”  Random House Kernerman Webster’s College Dictionary calls it “insulting” and “offensive.”  Collins Dictionary calls it “taboo.”

The Washington Redskins’ trademark attorney Robert Raskopf says of the term:
It may or may not be used disparagingly, just like many other terms can. So we don’t really think there’s much to that claim, and once you cross the tiny little line that needs to be crossed and realize that we, the Washington Redskins, have made something honorable and successful and imbued that into this brand, there’s no way that anyone can say that we use that mark disparagingly. It’s a mark. What trademark law’s all about.
However, when asked by a radio host whether he would call an American Indian a “redskin” to his or her face, Mr. Raskopf hesitated before finally replying: “I understand that word isn’t in use as much as it once was. That’s not what this case is about. It’s what our word means.” If the word is not derogatory, why would Mr. Raskopf be so reluctant? Why should he hesitate to use ‘Redskin’ to refer to any and all American Indians to their faces?

The meaning of a word is determined by its use in a social context. In some instances, one can use a word to mean what he or she wishes. For example, one can coin a new use of an existing term. At some point some English user first used the word ‘winner’ sarcastically to mean not a victor but the very opposite—a loser. One can also use a word in a code context. One can imagine a CIA agent using the word ‘winner’ in e-mails, letters, or monitored speech to mean any number of things in order to get important messages to his or her superiors. However, for the most part one cannot use any and all words willy-nilly exactly how he or she wishes. In order for language to be useful as a medium of communication, the standard uses of words come to socially be understood as the meanings of these words. If this in general were not the case, it would simply be impossible for anyone to communicate using a natural language. If each and every speaker used each and every word like Humpty Dumpty—using the word to mean what he or she chooses it to mean—then a natural language simply could not exist.

Those who wish to defend the Washington Redskins are likely to appeal to poll data. For example, a September 2004 National Annenberg Election Survey poll found that over 90% of American Indians are not offended by the name Redskins. Does this matter? If it does, then it means that truth is democratic. It means that a group of people who are stoic can be the targets of slurs simply in virtue of being psychologically strong. Racial, anti-Semitic, sexist, homophobic, and other slurs are derogatory because of how they are typically used and how they have historically been used and not by how effective they are in injuring. If most American Indians are indeed strong enough not to be offended by racial slurs, this does not give everyone license to use those slurs without moral reproach. American Indians have been the victims of genocide, ethnic cleansing, imperialism, government corruption, and just about every evil of the progressive welfare state. Does the fact that they have bigger problems than the name of a mediocre football franchise with a foolish owner and an injured and overrated quarterback mean that they are not owed common decency?

The important thing to note is that nobody is making it a crime or a tort to use the word ‘Redskins.’ Nobody is violating the First Amendment free speech rights of Washington Redskins owner Daniel Snyder or anyone else. Nobody is censoring anybody or anything. While there is a natural right to property and this includes intellectual property such as a trademark, the government—for better or worse—is required in order to establish, exploit, and defend such intellectual property. 15 U.S.C. § 1052(a) is the governing law on the matter concerning the establishment of trademark in American law. It is obvious that ‘Redskins’ violates that law, and therefore, the Trademark Trial and Appeal Board was right in canceling the Washington Redskins’ name trademark. That law, like any other law, is not sacrosanct. It can be repealed and/or altered if need be. The law should be changed. While it makes sense for the federal government not to issue a trademark in a case where deception is involved, there should be no moralistic requirement for intellectual property. Were such a requirement placed on patents and copyrights, it would lead to widespread censorship and politicization of science and technology. But if the law is eventually changed, one would hope that the advocates of the change would not complain when and if some name that is a slur against their race, religion, ethnicity, gender, etc. is trademarked.

Wednesday, June 25, 2014

Memo Authorizing Targeted Drone Killing of Al-Awlaki Released

by Dr. Gerard Emershaw

The memo by the Justice Department’s Office of Legal Counsel which authorized the targeted drone killing of American citizen Anwar al-Awlaki without a trial was released earlier this week. The memo reasons that the targeted killing of American citizens such as al-Awlaki is not a violation of 18 U.S.C. § 1119 which makes it a federal offense for an American citizen to murder or attempt to murder another American citizen in a foreign nation. The memo appeals to the public authority justification as providing an exemption to the statute in such cases of targeted killings. Public authority justification comes into play where “the defendant knowingly committed a criminal act but did so in reasonable reliance upon a grant of authority from a government official to engage in illegal activity.” The memo concludes that the Department of Defense and CIA operations involved with the targeted killing of al-Awlaki were justified under a particular variant of public authority under “the lawful conduct of war.”

This defense of the al-Awlaki assassination is dependent upon the War on Terror being an actual war, and this is dependent upon the Authorization for Use of Military Force (AUMF) being a legal Congressional declaration of war. As argued at length in a previous post, the AUMF is not a declaration of war because war must be declared against a specific entity, there is no precedent for declaring war against groups or individuals rather than against nation states, and terrorists cannot be viewed as both criminals and enemy combatants.

Assuming for the moment that AUMF is a legitimate declaration of war, the next step of the memo’s justification for the targeted killing of al-Awlaki is based upon the Supreme Court ruling in Hamdi v. Rumsfeld (2004). In that landmark case, the Court ruled that American citizens designated as enemy combatants have a right to challenge their detainment under the Due Process Clause of the Fifth Amendment. The Court supported its plurality opinion that it was appropriate to limit the amount of due process that an American citizen enemy combatant received by appealing to a three part test formulated in Mathews v. Eldridge (1976):

  1. The interests of the individual in retaining their [life, liberty, or] property, and the injury threatened by the official action
  2. The risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
  3. The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication.

In Hamdi, the Court ruled that an American who was being detained as an enemy combatant after being captured on a battlefield overseas required notice of the charges, access to counsel, and an opportunity to be heard. Although the Court held that the due process requirements of placing the burden of proof on the government and of making hearsay inadmissible would place too much of a burden on the executive branch during hostilities, the due process requirements for such individuals were nevertheless still stringent.
The government claims that capturing al-Awlaki was infeasible. It concludes that it was reasonable to believe that a decision-maker could conclude the threat posed by al-Awlaki’s activities to United States persons was “continued” and “imminent” and that this outweighed the risk of possible erroneous deprivation.
However, the hole in the memo’s reasoning is that depriving an American citizen of his or her life is far more serious than depriving him or her of liberty as in the cases of the detention of American citizen enemy combatants as in Hamdi. This makes it reasonable to conclude that the amount of due process to be afforded to the target of assassination should be equivalent to that afforded to detained enemy combatants if not even greater.
The biggest issue is the Orwellian nature of the War on Terror created by the AUMF. The very vague nature of organizations like Al Qaeda makes it all too easy for the federal government to find even the most arbitrary of connections between an American citizen and Al Qaeda. Even where such connections do not exist—like the alleged connections between Al Qaeda and Saddam Hussein that the Bush administration “found”—this will not necessarily discourage the government. Using its tortured logic, more and more Americans will become potential targets of targeted killing. Public authority and “the lawful conduct” of war can also just as easily be used as justifications for committing domestic homicides. The government sees the entire world as a “battlefield” in the War on Terror, so no American citizen is necessarily safe from losing due process in the name of doing “whatever it takes” to defeat the terrorists. Who decides whether an American citizen constitutes a “continued” and “imminent” threat to the United States? The President? What in Article II of the Constitution grants the Caesar-like power to decide life or death with a thumbs up or down like an Emperor to the President?

Monday, June 23, 2014

Police Brutality and Blowback

by Dr. Gerard Emershaw

On June 7, 2014 in Las Vegas, Jerad and Amanda Miller murdered two police officers in a pizza restaurant and killed a bystander in a Walmart before Jerad Miller was killed by police and Amanda Miller shot herself in the head. As usual, the zombie collectivist mainstream media looked to blame entire groups of innocents for the actions of two murderers. Progressive anti-constitutionalists blamed the NRA and sought to use these horrific crimes as yet another excuse to violate the natural right of Americans to bear arms. Others blamed the supposedly fringe political beliefs that the Millers held. The collectivist logic of such progressive totalitarians is that if one person who holds Tea Party beliefs, reveres the Constitution, listens to Alex Jones, believes in so called “conspiracy theories,” and mistrusts the federal government, then all who do so are equally guilty. Guilt by association. If one gun owner commits a murder, then all gun owners are murderers. If one person who espouses the views of the Patriot Movement commits a murder, then all Patriots do.

Of course, to be consistent, this would have to go both ways. Under this collectivist approach, if one person of any kind commits a murder, then every token of that type is guilty of murder. All Muslims are guilty of the 9/11 attacks. All Christians are guilty of the Centennial Olympic Park bombing. All Jews are guilty of the King David Hotel bombing. All blacks are guilty of the crimes of the Zebra Killers. All Germans are guilty of the crimes of Hitler. All Russians are guilty of the crimes of Stalin. All Italians are guilty of the crimes of Mussolini. All Chinese are guilty of the crimes of Mao. All Japanese are guilty of the crimes of Tojo. All Cubans are guilty of the crimes of Castro. In the end, everyone should be seen as guilty. Perhaps everyone should be rounded up by the DHS under the NDAA and thrown in Gitmo. Or perhaps we should just focus on the individuals who commit crimes and hold them accountable instead.

One angle that has not received much attention is the fact that the Millers were inspired to commit their crimes because they saw their victims as oppressors. This merits attention. It is not to say that Officer Igor Soldo or Officer Alyn Beck were oppressors. By all accounts they were honest and hard-working officers. However, there is no doubt that there are constantly countless high profile examples of stories of law enforcement officers in all levels of American government who are oppressive. Whether it is Albuquerque police killing a homeless man, a Pittsburgh police officer punching a woman at a parade, or a Memphis police office stealing a Make-A-Wish Foundation gift from a terminally ill three-year-old child, there is no shortage of corrupt and oppressive law enforcement officers. Each and every time that some rogue cop commits a crime or abuses his or her power, it creates the potential for blowback that could cause honest police officers such as Officer Igor Soldo or Officer Alyn Beck or innocent civilian bystanders such as Joseph Wilcox to be put in harm’s way.

While the responsibility for crimes lies with those who perpetrate them, corrupt cops are guilty of exacerbating the risk of crimes against law enforcement. There are many disgruntled and unstable people like Jerad and Amanda Miller who may be like tinderboxes. Incidents of police corruption and police brutality create blowback that makes it much more likely that such individuals will act out in violent ways. This line of thinking differs greatly from scapegoating movies, songs, books, video games, or any other form of free speech. While human beings have a natural right to produce a violent movie, a song with provocative lyrics, a book with revolutionary ideas, a violent first person shooter video game, etc., there is no natural right for a police officer to commit crimes or abuse his or her authority.

Timothy McVeigh was set off by abuses of federal law enforcement authority at Waco and Ruby Ridge. While McVeigh and Nichols were responsible for their own actions, the federal officers involved in those incidents provided important causal links. Perhaps if Waco and Ruby Ridge were handled better and casualties were avoided, the atrocity in Oklahoma City would never have taken place. Unfortunately, in the eyes of statists, the government can never possibly be a causal factor in any negative consequences. Only private sector entities that they do not like could possibly be.