Administrative Agencies – The Fourth Branch of Government

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Centralization of power is inherently dangerous to human liberty. Whether it be in a corporation or a government, the sheer concentration of manpower and wealth is often a precursor to tyranny (if not also democide as well). This is why the Framers drafted throughout their Constitution an insistence on the separation of powers between the legislative, executive, and judicial branches of government, so as to precisely avoid such a concentration of power within any specific branch of the federal government.

 

 

According to the Congressional Record of March 12, 1946, United States Senator Pat McCarran said in support of the Administrative Procedure Act:

 

“We have set up a fourth order in the tripartite plan of Government which was initiated by the founding fathers of our democracy. They set up the executive, the legislative, and the judicial branches; but since that time we have set up a fourth dimension, if I may so term it, which is now popularly known as administrative in nature. So we have the legislative, the executive, the judicial, and the administrative.”

 

I must have just missed that provision or clause in the United States Constitution which delegated an enumerated power to the Congress to unilaterally establish a fourth branch of government by way of legislation. Senator McCarran goes on to say:

 

“Perhaps there are reasons for that arrangement. We found that the legislative branch, although it might enact law, could not very well administer it. So the legislative branch enunciated the legal precepts and ordained that commissions or groups should be established by the executive branch with power to promulgate rules and regulations. These rules and regulations are the very things that impinge upon, curb, or permit a citizen who is touched by the law, as every citizen of this democracy is.”

 

Excuse me, but how does this act of Congress not violate the separation of powers? If it is true that a single branch of government can just arbitrarily establish an entirely new branch of government outside the chains of the Constitution, then we are left to conclude that the alleged fourth branch in question is indisputably unconstitutional, and therefore, any “rules and regulations” it attempts to impose on the citizenry are null and void; as such, these “regulations,” which appear to enjoy the color of law, are not worthy of being obeyed.

How did Americans find themselves in such a political pickle? To determine an answer to that question requires us to travel back over a century to the ratification of the 14th Amendment in 1868. Putting aside the issue of the authenticity of the amendment with regard to Article V, the legitimacy of the 14th remains suspect because, as part of the Reconstruction Amendments, it was coercively imposed upon the legislatures of the former Confederate states as a condition for re-admission into the Union, and thus was also a condition for ending the war. Despite this, it has also been argued that the phrase found under Section 1 of the amendment where it says “…and subject to the jurisdiction thereof…” implies a recognition of the two classes of American citizenship.

An often ignored consequence of the 14th Amendment is how it gave rise to the corporatocracy. Justice Harlan explained in the United States Supreme Court’s ruling opinion in Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886) how the 14th Amendment’s Equal Protection Clause encompassed the characteristics of corporations, such as the ability to contract and to sue and be sued, which slowly began to establish the legal concept of corporate personhood. As an anti-free market entity for plutocrats who cheated their way to wealth by privatizing gains while socializing losses, corporations, by virtue of their status as government-sanctioned unions for the rich, enjoy privileges and honors the rest of the citizenry does not, such as corporate subsidies, tax breaks, and no-bid contracts (keep in mind, too, that corporations, unlike men and women, cannot be incarcerated).

Another equally ignored result of the 14th Amendment is how the many state constitutions have been trampled upon by the imposition of the United States Constitution outside of its own limits. The doctrine of incorporation, based upon a combination of the Privileges and Immunities, Due Process, and Equal Protection clauses found in Section 1 of the 14th Amendment, violates the concept of federalism itself by extending the application of the federal Bill of Rights against the states, under the pretext of expanding civil liberties, as given by the Court is a series of decisions over the course of a century. Their justification behind this was that the bills or declarations of rights found under the various state constitutions were not as good protections of liberty as were the Bill of Rights. By overextending the applicability of the federal Bill of Rights, the (perhaps) unintended consequences of this eventually justified the intervention of the federal government into the spheres of activity that was the purview of the several state governments, thus laying the groundwork for the administrative agencies “regulating” almost every aspect of our own lives.

Unfortunately, this case law, based upon stare decisis, has been used as the mechanism to justify the encroachment of the 14th Amendment against the various state constitutions. Although there were court cases both before and after the ratification of the 14th Amendment that rejected the doctrine of incorporation by recognizing both classes of citizenship, the incremental trend has been in favor of the federal government’s supremacy. In Barron v. City of Baltimore, 32 U.S. 343 (1833), Chief Justice Marshall explained that the Framers had intended the Bill of Rights to be applicable against the federal government alone. In the Slaughter-House Cases, 83 U.S. 36 (1873), Justice Miller said:

 

“Was it the purpose of the fourteenth Amendment, by a simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government?”

 

In Twining v. State of New Jersey, 211 U.S. 78 (1908), Justice Moody said:

 

“The 14th Amendment, it is observed by Mr. Justice Miller, delivering the opinion of the court, removed the doubt whether there could be a citizenship of the United States independent of citizenship of the state, by recognizing or creating and defining the former. ‘It is quite clear, then’ he proceeds to say (p.74), ‘that there is a citizenship of the United States and a citizenship of a state, which are distinct from each other and which depend upon different characteristics or circumstances in the individual’….[m]uch might be said in favor of the view that the privilege was guaranteed against state impairment as a privilege and immunity of national citizenship, but, as has been shown, the decisions of this court have foreclosed that view.”

 

In Palko v. Connecticut, 302 U.S. 319 (1937), Justice Cardozo explained that selective incorporation over time upon the states of some of the amendments within the Bill of Rights is preferable since not all of its enumerated rights were fundamental rights, such as the protection against double jeopardy; however, this is now a moot point because, in Benton v. Maryland, 395 U.S. 784 (1969), Justice Marshall explained how the Fifth Amendment’s Double Jeopardy Clause does apply to the states because of the doctrine of incorporation, thereby overruling Palko.

Most shocking is the admission made in Dyett v. Turner, 20 Utah 2d 403; No. 11089 (1968), by Justice Elliet, who explained the position that the Utah government found itself in because of the 14th Amendment:

“While we deplore such a situation as is now foisted upon the states by various rulings of the United States Supreme Court and acts of Congress based upon such rulings, yet we want it understood that we do not think the particular Utah federal district judge is in any manner to blame. He acts under the direction of the Supreme Court of the United States and must faithfully carry out the law as he believes that court would have him to do.” [page 266]

 

Elliet’s comments back in the late ’60s show just how deteriorated the situation of the federal government centralizing power unto itself had become. The judge went on to say:

 

“We feel like galley slaves chained to our oars by a power from which we cannot free ourselves, but like slaves of old we think we must cry out when we see the boat heading into the maelstrom directly ahead of us; and by doing so, we hope the master of the craft will heed the call and avert the dangers which confront us all. But by raising our voices in protest we, like the galley slaves of old, expect to be lashed for doing so. We are confident that we will not be struck by 90 per cent of the people of this Nation who long for a return to the days when the Constitution was a document plain enough to be understood by all who read it, the meaning of which was set firmly like a jewel in the matrix of common sense and wise judicial decisions.” [page 268]

 

If Elliet had made those comments today, he would, more likely than not, be profiled as a “domestic extremist” by the Department of Homeland Security or one of its fusion centers. Needless to say, Elliet’s statements reminds me of that passage from the Declaration of Independence when it says, “He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”

Sadly, many within the patriot faction consider themselves as being constitutionalists, yet they grossly misunderstand their own political philosophy whenever they inadvertently appeal to the doctrine of incorporation. For instance, at the Come & Take It! San Antonio rally held last October, several of the speakers (including Mike Vanderboegh and Alex Jones) constantly referred to the infringement of “our Second Amendment rights.” This was rather inappropriate for them to say, because the rally was held in protest of when the San Antonio Police Department issued a citation against three men who openly carried their rifles outside a Starbucks. As Gary Hunt correctly pointed out, article 1 § 23 of the Texas Constitution does impose a limitation upon the wearing of arms by the Texas legislature, and since no entity of the federal government was involved (such as the BATFaggots), the only way for the Second Amendment to be applicable here is through the 14th Amendment because of the incorporation doctrine. It is because of the Texas Constitution, not the federal Constitution, that openly carrying handguns is illegal in Texas.

To contrast the idiocy of the Come & Take It! San Antonio rally, we can look at how the reformist organization Restore the Fourth! is actually not appealing to the 14th Amendment’s doctrine of incorporation. Their political advocacy is appropriate because it was the National Security Agency (which is an administrative agency, and is thus within the fourth branch of government, as Sen. McCarran described it) that engaged in mass indiscriminate surveillance and data-mining of the citizenry, which, in many respects, is just a carry-over from the warrantless spying conducted during Bush, Jr.’s reign of terror.

Briefly recapping the story thus far, not only did the 14th Amendment justify the future invasive powers of the Administrative Agencies beyond the limits imposed by the Constitution, but the judicial case precedent based on the 14th Amendment also gave rise to the corporatocracy that endeavors to destroy the free market concept envisioned by the Framers. Although it is often claimed by statists that the Administrative Agencies must “regulate” the multinational corporations in an attempt to reign in “corporate greed,” more and more “regulations” are needed to be enforced by the Administrative Agencies as time goes on. Much to the detriment of our liberties, most contemporary patriots inadvertently appeal to the doctrine of incorporation while simultaneously refusing to acknowledge the two classes of American citizenship!

So, what does the 14th Amendment have anything at all to do with the Administrative Agencies and the fourth branch of government? To answer that question, you must turn your attention to Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), where Justice Brandeis, in a concurring opinion, laid out what became known as the Ashwander doctrine, which could be summarized thusly:

 

  1. Constitutionality is a last resort.
  2. Constitutionality will not be anticipated.
  3. Narrow interpretation of constitutionality only.
  4. Constitutionality will be avoided if at all possible.
  5. Statutory validity cannot be challenged by the uninjured.
  6. Constitutionality of a statute will be avoided if an individual has benefited from it.
  7. Constitutionality of statutes will be avoided if statutory construction can resolve the dispute.

 

In other words, the United States Supreme Court, whose very duty it is to safeguard the Constitution from the ambitions of the other two (constitutionally enumerated) branches by evaluating the constitutionality of an enactment or a presidential decision [as Chief Justice Marshall explained in Marbury v. Madison, 4 U.S. 137 (1803)], explicitly stated back in the mid ’30s that they will do everything they can legally to get away with avoiding interpreting the constitutionality of the laws involved in the cases brought before them for adjudication.

If one was a lifeguard at a swimming pool, and he stated in the official lifeguarding manual that all current and future lifeguards could choose to do everything possible to delay rescuing a drowning swimmer, common sense by the swimmers would dictate that, at best, the lifeguard is lazy and derelict in his duty, or worse, that he is an inhuman monster; but when the U.S. Supreme Court does the exact same thing in principle via the Ashwander doctrine, it’s considered to be “the law of the land” because it has become enshrined in the common law. And, to top it all off, the swimmer would have no standing to challenge the law that lead to the indifference of the lifeguard in the first place.

Remember when Sen. McCarran said that the fourth branch of government was to “promulgate rules and regulations?” This is the basis for the “rulemaking” authority so often touted by statists who have a throbbing hard-on for the Administrative Agencies. It could be said that these agencies operate in a unconstitutional consolidation of governmental powers, since they can legislatively issue (or “promulgate”) regulations, executively enforce those regulations, and judicially adjudicate disputes regarding purported “violations” of those very same regulations! The Code of Federal Regulations are the “rules and regulations” for the Administrative Agencies, and subsequently, the fourth branch of government; the Federal Register not only publishes new regulations, but also proposes new rules.

Just who are the Administrative Agencies, anyway? One partial list of the over 1,500 agencies would include:

 

 

As you can no doubt tell, the sheer scope of what comes under the fourth branch of government is so broad as to render the limits imposed by the Constitution as being essentially moot. Taking into account their popularly referenced acronyms, it is also why I refer to the Administrative Agencies as the “alphabet soup boys.” In a more serious attempt, though, to try and define them, consider Gary Hunt’s answer:

 

“They’re created by statute, aren’t they? The Department of Motor Vehicles in your state, for example, is an administrative agency of the government of the state. State courts tend to follow the [United States] Supreme Court, and the Supreme Court often imposes on the state court. In 1936, the Supreme Court said ‘one who avails himself of a statute’…there were already administrative agencies, and they were addressed in the Ashwander decision, they’ve existed for awhile; but, in 1946, Congress adopted the Administrative Procedure Act, thereby laying the groundwork for extensive administrative agencies. I don’t know if they had driver’s licenses before then or not, or maybe certifications, or maybe nothing (you didn’t need anything to drive a horse, may not have needed anything to drive a car), but the states picked up on the idea and created the Department of Motor Vehicles, issuing licenses and thereby binding you to statute, rather than the constitutional right of the freedom of travel (the right to travel), which is assumed to be a right, though not enumerated, but existent among a free people. So, the administrative agencies have become the means of despotic government that Thomas Jefferson told us about in the Declaration of Independence. They are outside the [United States] Constitution, and you can’t even bring them back into the Constitution based upon what Brandeis told us in the Ashwander decision…that’s what administrative agencies are – they are the means of removing the Constitution from the relationship of us to most agencies of government.” [1hr 17min – 1hr 20min; Behind Enemy Lines – State Citizenship: “Benefits” of the Fourteenth Amendment podcast on February 26, 2014]

 

When asked whether American citizens are obliged to obey the rules and regulations of the Administrative Agencies, he replied he couldn’t answer that question because of the U.S. Supreme Court’s failure to even hear Larry Myers’ habeas corpus ad subjiciendum.

Since the Congress has created the Administrative Agencies, have any of the state governments also created their own fourth branch of government? Well, the Texas Administrative Code was established by the Texas legislature according the Texas Government Code (sound familiar?). This administrative code is the Texan equivalent to the Code of Federal Regulations; similarly, the Texas Register is the Texan equivalent to the Federal Register. As the Texas Secretary of State Nadita Berry said about the administrative code:

 

“The Texas Administrative Code (TAC) is a compilation of all state agency rules in Texas. There are 16 titles in the TAC. Each title represents a subject category and related agencies are assigned to the appropriate title.

“In 1977, the TAC was created by the Texas Legislature under the Administrative Code Act (Government Code, §§2002.051-2002.056). In the Administrative Code Act, the Legislature directed the Office of the Secretary of State to compile, index, and cause to be published the Texas Administrative Code.

“State agency rule writers, in cooperation with the Office of the Secretary of State, had begun the task of organization and systematic dissemination of state agency rules in 1975 with the passage of the Administrative Procedure and Texas Register Act (Government Code, §2001 and §2002).

“With the passage of the Administrative Code Act, the Legislature intended for the Secretary of State to contract with public entities to publish the TAC. However, as more innovative technology became available, demand for the TAC in electronic format increased. In response to this increased demand, HB 2304 was passed by the Texas Legislature in 1995. HB 2304 allows the Secretary of State to make the TAC available through our web site and to charge for value-added services available through the web site.”

 

Right there, the Texas Secretary of State clearly admits that in 1977, the Texas legislature created a fourth branch of government, thereby unilaterally breaching the separation of powers found throughout the Texas Constitution. Just as Sen. McCarran admitted to the betrayal of the United States Congress in 1946, Secretary Berry confessed that the usurpation of the republican form of government that Texans are supposed to enjoy, pursuant to the Texas Bill of Rights, was committed by their own legislature.

One example of a Texas Administrative Agency worthy mentioning briefly, with which many Texans have had the pleasure of suffering under, is the Texas Department of Family and Protective Services (DFPS). On DFPS’ webpage entitled, “Child Care Minimum Standards,” it says:

 

Chapter 42 of the Texas Human Resources Code requires the Texas Department of Family & Protective Services (DFPS) to regulate child care and child-placing activities in Texas, to investigate alleged abuse/neglect in child-care facilities, and to create and enforce minimum standards.

“Charged with this task, the Child Care Licensing division of DFPS develops rules for child-care in Texas. Once proposed, reviewed, and adopted, these rules become part of the Texas Administrative Code (Child Care Licensing Rules). Each set of Minimum Standards is based on a particular chapter of the Texas Administrative Code and the corresponding child-care operation permit type(s). The Minimum Standards are designed to mitigate risk for children in out-of-home care settings by outlining basic requirements to protect the health, safety, and well-being of children in care.”

 

Notice how the licensure of “child care” is considered to be administrative in nature by DFPS. I bring this up only to illustrate just how intrusive the capacity is for Administrative Agencies, whether they be state or federal, to be in your own personal life. It is partially because of this I consider “the personal to be political,” although not in the same sense as the feminist who originally coined that phrase.

At this juncture, you may be asking yourself, what difference does it make that the Administrative Agencies are tyrannical? Consider the successful incrementalization that took place over the course of a century, and how the result of it affects Americans today. As Gary Hunt concluded in An Essay on the Fourteenth Article in Amendment to the Constitution:

 

“With the ratification of the Fourteenth Amendment, the groundwork was laid to subvert the state’s rights, as well as those of the people, violating the intent of the Constitution and those who ratified it.”

“The first step was the destruction of the intent explained in Dred Scott, that the ‘citizens of the United States’ were a singular group of people who had defied British authority to remove rights that were secured by the British Constitution. These ‘people’ were diluted and the foundation necessary for a true nation, common heritage and culture, were subordinated to an all inclusive acceptance of foreign cultures to undermine the fundamental integrity of the nation.

“The next step was to subordinate the people of the various states to an expanding role of the federal judiciary by extension of the federal ‘bill of rights’ (each state already had their own bills of right), intended as protection from federal intrusion, to impose upon the states, and their people, the federal interpretation of what was right, or wrong.

“The step that completed the embracing of this new concept of government was the creation of administrative agencies, to make rules which are not ‘positive law’, though are presented to the people as ‘laws’ enacted by Congress (positive law), and apply to all people. The nexus of the relationship between the people and the administrative agencies is obscured in Court decisions, leading us to believe that the laws do apply to us, when, in fact, they do only if we acquiesce to that [constitutional] nexus, which we blindly accept because the government would prefer that we know no better.

“The final step in assurance of obedience to the federal government is accomplished by encouraging other institutions, whether local, state, or educational, to believe that our relationship to the federal government is absolute and unquestionable.

“Thus, through a series of incremental changes in the nature of government, we have found that the concept upon which this nation was founded, and was assured, by both sides, to be the intent of the federal union, we have become more subject to arbitrary rule than those brave colonists who threw off the yoke of arbitrary power, in favor of a government that was intended to be, truly, for the people, were every subject to, or could ever have conceived to be, the result of their efforts. They would, without a doubt, be appalled at what we have become — as should we.”

 

Americans should be appalled at how their republic has been very slowly transformed into the new British Empire and its concomitant warfarewelfare state, with the King’s socialized mercenaries on the one hand, and the court favorites chomping on the bits of the hanging chads from the King’s table on the other.

It would do you well to heed the advice of men who have suffered under the boot of authority. As Frédéric Bastiat said in The Law:

 

“Thus, there is not a grievance in the nation for which the Government does not voluntarily make itself responsible. Is it any wonder that every failure threatens to cause a revolution? And what is the remedy proposed? To extend indefinitely the dominion of the law, i.e., the responsibility of Government…it is not true that the mission of the law is to regulate our consciences, our ideas, our will, our education, our sentiments, our works, our exchanges, our gifts, our enjoyments. Its mission is to prevent the rights of one from interfering with those of another, in any one of these things…and now, after having vainly inflicted upon the social body so many systems, let them end where they ought to have begun – reject all systems, and try liberty – liberty, which is an act of faith in God and His work.”

 

In an 1819 letter to Issac Tiffany, Thomas Jefferson says:

 

“Rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law;’ because law is often but the tyrant’s will, and always so when it violates the right of an individual.”

 

As Henry Thoreau proclaimed in On the Duty of Civil Disobedience:

“All men recognize the right of revolution; that is, the right to refuse allegiance to, and to resist, the government, when its tyranny or its efficiency are great and unendurable…I think that it is not too soon for honest men to rebel and revolutionize.”

 

And finally, as Étienne de La Boétie put it in The Politics of Obedience:

 

“As for me, I truly believe I am right, since there is nothing so contrary to a generous and loving God as tyranny – I believe He has reserved, in a separate spot in Hell, some very special punishment for tyrants and their accomplices.”

 

To loosely quote a contemporary vlogger, if Americans actually believe in unalienable rights and individual liberty, then they must stop asking nicely for sociopathic parasites to let them be free. Saying “no” to the arbitrary commands of Administrative Agency bureaucrats would be a good place to start, albeit not without some risk; but, then again, which is the greater risk – the risk of incurring punishment now, while the evils are still somewhat bearable, or the risk of having your descendents suffer under the boot of authority that much more worse than you ever were? If no one takes a stand, no stand will ever be made, yet, it’s not just about taking a stand once, but taking a stand as a lifestyle. Consider this excerpt from Jefferson’s Declaration as a parting thought regarding our current situation with this fourth branch of government, which is composed of Administrative Agencies:

 

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.”

Quote of the Week – Government Paranoia

“Attempts to undermine the legitimate currency of this country are simply a unique form of domestic terrorism. While these forms of anti-government activities do not involve violence, they are every bit as insidious and represent a clear and present danger to the economic stability of this country. We are determined to meet these threats through infiltration, disruption and dismantling of organizations which seek to challenge the legitimacy of our democratic form of government.”

 

– United States Attorney Anne Tompkins

Western District of North Carolina, U. S. Attorneys Office – March 18, 2011 Press Release

The Privileges and Immunities of State Citizenship

Political equality is important to the extent that no man, or class of men, enjoy any “honors” above and beyond those of their fellow citizens. If we are to remain a free people, then any government-sanctioned hierarchy of “entitlements” must be universally banned. Much can be inferred as to the condition of human freedom today if we but simply examine the mechanisms that either permit or prohibit the acceptance of undue favors by the American people themselves.

 

 

In 1918, a PhD candidate sought to determine the post-14th Amendment status of state citizenship in his doctoral dissertation. As Howell says in his preface:

 

“So far as is known, no previous attempt has been made to treat the subject comprehensively, or to enumerate the rights which the citizens of the several States are entitled to enjoy, free from discriminatory legislation, by virtue of the so-called Comity Clause.”

 

The Comity Clause (found in Article 4, Section 2, Clause 1 of the United States Constitution) says that:

 

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

 

Now, what is meant by the phrase “Privileges and Immunities?” Howell explains that:
 

“A privilege or immunity is conferred upon any person when he is invested with a legal claim to the exercise of special or peculiar rights, authorizing him to enjoy some particular advantage or exemption…[t]he Comity Clause…was primarily intended to remove the disabilities of alienage from the citizens of every State while passing through or doing business in any of the several States.”

 

Right there, the “privilege and immunity” as enumerated by the Comity Clause was not intended to grant unconstitutional honors or favors upon the Citizens of each State, but in fact was designed to remove any possible alienage against the Citizens in the several States:

 

“The wording of the Comity Clause is obviously very general; and standing by itself, it might be construed in such a way as to obliterate state lines entirely, since the citizens of every State in the Union might be regarded as entitled by it to identically the same privileges and immunities…it is based almost entirely upon the prevalent political theory of natural rights…[t]he result has been that it is impossible to set forth any particular rights and privileges which are merely as such appurtenant to citizenship.”

 

Again, such alienage could potentially reinforce inequality under the law, which is exactly what the Comity Clause forbids. Remember, the Federalists expressed their concern during the constitutional ratification period that the various state governments might get jealous with each other enough to literally go to war over such matters as trading advantages. It was because of concerns like this that the Comity Clause (much like the Titles of Nobility Clause) was written into the Constitution.

Interestingly enough, Howell admits that there are two classes of citizenship. Regarding the 1873 Slaughter-House Cases (83 U.S. 36), he says:

 

“The case firmly established the rule that, in consequence of the duality of citizenship in this country, there exists in correspondence to each class of citizenship a separate class of privileges and immunities, both protected against state violation, but entirely distinct in their character.”

 

Howell also approached this topic the other way around by addressing what the implications would have been if the 1908 Twining v. New Jersey (211 U.S. 78) case had been decided the other way:

 

“If this opinion of the minority justices had prevailed, a change of the utmost importance would unquestionably have been introduced into the system of government in this country. The authority and independence of the States would have been diminished to a practical nullity, in that all their legislative and judicial acts would have been rendered subject to correction by the legislative and to review by the judicial branch of the National Government. With relation to the privileges and immunities of state citizenship, the result would have been the abandonment of the doctrine that the controlling factor in the application of the Comity Clause is discrimination on the part of the States, and a return to the earlier and necessarily vague idea of fundamental and inherent rights.”

 

If anything, this means that the Comity Clause runs counter to the 14th Amendment’s “doctrine of incorporation,” and that, I think, is the impasse we find ourselves at. We may either adhere to the original intent of the Framers pursuant to the Ninth and Tenth Amendments, or we may beg the intervention of the federal government by way of the 14th Amendment. Both the Slaughter-House and Twining decisions not only recognize state citizenship, but also the limitations placed upon the federal government even after the ratification of the 14th Amendment. In other words, the “doctrine of incorporation” itself is evidence of how incrementalization can be used to violate the Constitution.

Speaking of state citizenship, Howell also brought up the difficult question of how the “peculiar institution” of race slavery is treated with regards to the Comity Clause. He explains:

 

“A question of considerable interest prior to the Civil War was with respect to the extent to which negroes were protected by the Comity Clause. Slaves, being property, admittedly did not come within its provisions; but differences of opinion existed with regard to free negroes to whom the privileges of citizenship had been extended by any one State. The state courts were not at all in accord upon the matter.” [emphasis added]

 

Now, we can see here the origins of Jim Crow. Because of the fact that various state judges either agreed or disagreed with the infamous 1857 Dred Scott v. Sandford (60 U.S. 393) case, they would necessarily interpret the Comity Clause in directly contradictory ways, for either they considered the free Negroes to be state citizens, or not.

Did the 14th Amendment intrinsically alter the meaning of the Comity Clause, though? According to the Privileges or Immunities Clause found under Section 1, Clause 2 of the 14th Amendment:

 

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”

 

Notice how this clause refers to “citizens of the United States” as opposed to the Comity Clause’s referrence to the “Citizens of each State,” which I think reinforces the two classes of citizenship. Howell says:

 

“A complete list of the privileges and immunities secured to the citizens of the several States has never been worked out…[t]he rights upon which the citizens of each State are entitled to share upon equal terms with the citizens of other States are, generally speaking, private or civil, as opposed to public rights; but with respect to these also there are certain limitations to the extent to which equality of treatment may be demanded.”

 

It would seem that the 14th Amendment’s “doctrine of incorporation” is very broad, whereas the Comity Clause is compartively specific and defined. Howell continues:

 

“As with other rights secured to the citizens of the several States, the right to contract and to carry on commercial transactions in general, free from discriminatory legislation, must be exercised subject to the police power of the States. This wide and ill-defined power, however, is apparently somewhat limited in this connection, both because it is capable of infringing too far upon the constitutional rights of citizens, and because in the majority of instances it necessarily comes into conflict with the transaction of interstate commerce.”

 

In other words, the police power of the state governments could be used to violate the liberties of state citizens because of its broadness. Howell concludes that:

 

“Properly speaking, therefore, there exists only one privilege or immunity of which it can be said that it may be demanded as of right by the citizens of every State in the Union. That one is equality of treatment, freedom from discriminating legislation.”

 

Unfortunately, the police power of the States has been used with impunity since Howell’s time, yet all the Comity Clause can do is mitigate the police power to the extent that it is used to equally oppress the Citizens of each State. I do not think such a state of affairs bodes well for American liberty.

Roger Howell’s The Privileges and Immunities of State Citizenship is an insightful look into an often ignored constitutional clause. Despite the fact that, in practice, the Comity Clause appears to have been rendered moot by the Privileges or Immunities Clause (as well as by the doctrine of incorporation), the value of the Comity Clause lies in the fact that it recognizes state citizenship. What, if any, difference this makes lies in whether asserting one’s state citizenship can be used to secure your Liberty, and that, to be fair, remains to be seen.

Vices Are Not Crimes

Humans cannot legislate morality, because the desire to be good must come from within one’s own soul. Everyone must have the liberty to be potentially foolish, for without that, there can be no incentives for them to learn and to grow. Whether it’s with blue laws or gambling prohibitions, men in fine suits calling themselves a “legislature” can only alter human behavior by threatening those they govern with fines and caging for disobeying their commands, even if there was no victim who had lost out because of that disobedience.

 

 

Much of the reason I try to refrain from mentioning anything about so-called “social issues” (as much as possible), is because I don’t think it is appropriate to discuss any of those subjects in a public manner. What a man does in the privacy of his own home, or among his friends and family, is no concern of mine, as I am a complete stranger to him and his chosen lifestyle. The choices that he makes and the company that he keeps does not affect my life, unless of course he is an acquaintance of mine, and even then only to the extent that his actions personally affect me; otherwise, any say I have concerning the morality or wisdom of his actions is naturally rendered null and void.

Having said that, a man’s actions do affect me if he publicly advocates for government to intervene in my life somehow. Although indirect, his advocacy increases the probability that the government will grant itself the authority (such as through the aforesaid “legislation”) to infringe upon my liberties. If he and I are to live in real freedom, then he must be willing to tolerate my choices, as I must necessarily tolerate his as well.

What I despise about “social conservatism” is the fact they those advocates constantly demand the government to enforce their subjective preferences upon everyone else at the point of the sword. Whether it be Islamophobia, Jim Crow, or the Defense of Marriage Act, American fascists are nearly always more than happy to scapegoat entire collective demographics based only upon the actions of a very few. Similarly, what I equally despise about “social liberalism” is the fact that those advocates constantly demand the government to enforce their subjective preferences upon everyone else at the point of the sword. Much like their counterparts, whether it be affirmative action, truancy, or hate speech, American communists are nearly always more than happy to scapegoat entire collective demographics based only upon the actions of a very few. Does any of this sound familiar to you?

Vice and virtue are defined by the author respectively as:

 

“Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another…[v]ices are usually pleasurable, at least for the time being, and often do not disclose themselves as vices, by their effects, until after they have been practised for many years; perhaps for a lifetime. To many, perhaps most, of those who practise them, they do not disclose themselves as vices at all during life. Virtues, on the other hand, often appear so harsh and rugged, they require the sacrifice of so much present happiness, at least, and the results, which alone prove them to be virtues, are often so distant and obscure, in fact, so absolutely invisible to the minds of many, especially of the young, that, from the very nature of things, there can be no universal, or even general, knowledge that they are virtues. In truth, the studies of profound philosophers have been expended – if not wholly in vain, certainly with very small results – in efforts to draw the lines between the virtues and the vices.”

 

Put another way, it could be said that virtue is deferred gratification whereas vice is instant gratification. At the moment, it would seem that your vices can satisfy your desires, but by saying “no” to yourself, you are in effect holding out for something else, which ironically could satisfy you better than your vices ever could. It is the difference between lust and love, amusement and happiness, or safety and peace. By patiently resisting your impulses, you avoid compromising yourself, whether ethically or practically; however, it is imperative that the result of each temptation be uniquely your own choice, otherwise, where is challenge in living the human experience?

Spooner was very concerned about how nosy busybodies could rationalize their annoying diatribes in their attempt to sway the government to do their bidding:

 

“A man is under no obligation to take anybody’s word, or yield to anybody authority, on a matter so vital to himself, and in regard to which no one else has, or can have, any such interest as he. He cannot, if he would, safely rely upon the opinions of other men, because be finds that the opinions of other men do not agree. Certain actions, or courses of action, have been practised by many millions of men, through successive generations, and have been held by them to be, on the whole, conducive to happiness, and therefore virtuous.”

 

Because there is a variety of morally correct ways to live, pigeon-holing someone to only live this way or that way necessarily violates his own self-determination. Just as everyone is an individual, there are just as many ways of living one’s life with integrity. Spooner goes on to challenge the monopoly on morality:

 

“In the midst of this endless variety of opinion, what man, or what body of men, has the right to say, in regard to any particular action, or course of action, ‘We have tried this experiment, and determined every question involved in it? We have determined it, not only for ourselves, but for all others? And, as to all those who are weaker than we, we will coerce them to act in obedience to our conclusion? We will suffer no further experiment or inquiry by any one, and, consequently, no further acquisition of knowledge by anybody?’ Who are the men who have the right to say this? Certainly there none such. The men who really do say it, are either shameless impostors and tyrants, who would stop the progress of knowledge, and usurp absolute control over the minds and bodies of their fellow men; and are therefore to be resisted instantly, and to the last extent; or they are themselves too ignorant of their own weaknesses, and of their true relations to other men, to be entitled to any other consideration than sheer pity or contempt.”

 

In many ways, it could be said that Spooner is contesting the viability of religion itself, but I don’t think such is the case here, necessarily. If anything, Spooner appears to condemn those social engineers who pass themselves off as lecturers, intellectuals, and political pundits, because they, more than anyone, possess both the motive and the means to proclaim what they believe “society” should and should not do, as if they were the puppet masters. What such arrogant men commonly forget is that what they are really concerned about, if they were being truthful, is themselves:

 

“If those persons, who fancy themselves gifted with both the power and the right to define and punish other men’s vices, would but turn their thoughts inwardly, they would probably find that they have a great work to do at home; and that, when that shall have been completed, they will be little disposed to do more towards correcting the vices of others, than simply to give to others the results of their experience and observation. In this sphere their labors may possibly be useful; but, in the sphere of infallibility and coercion, they will probably, for well-known reasons, meet with even less success in the future than such men have met with in the past.”

 

Correct yourselves in your own households before you venture out into the world to do the same to others, I think, is the lesson to be learned here. As simple and straightforward as that sounds, almost nobody wants to do it because not only is it significantly harder, but also because it is far less glamorous than publicly debating each other over nothing at all. Had more people fixed their own lives before investing so much time and effort on “society” and its problems, then all of us would be much freer by now.

Speaking of collectives, the punishment of vice by government is little else than coercion sanctioned by the (a)moral majority. Spooner explains that:

 

“The object aimed at in the punishment of crimes is to secure, to each and every man alike, the fullest liberty he possibly can have – consistently with the equal rights of others – to pursue his own happiness, under the guidance of his own judgment, and by the use of his own property. On the other hand, the object aimed at in the punishment of vices, is to deprive every man of his natural right and liberty to pursue his own happiness, under the guidance of his own judgment, and by the use of his own property.”

 

Again, self-determination is the key here, and by denying the practice of it in everyday life, the government is creating a social climate whereby the victim mentality enjoys a fertile breeding ground. Like Thomas Jefferson said, the only limits drawn around our otherwise unobstructed action are the equal rights of others; for in order that we may become fully human, every man must be free to form, test, and act upon his own choices, as Murray Rothbard said. Spooner reminds everyone that:

 

“It is a maxim of the law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another. But no one ever practises a vice with any such criminal intent. He practises his vice for his own happiness solely, and not from any malice toward others.”

 

This is rather significant, for it means that absent mens rea, there is no crime. What this implies is, that should the accused individual in question not genuinely consider what he did to be a crime, then it is no crime (unless the judges adjudicating his case do so on the standard of strict liability). Most revealing was when Spooner admitted:

 

“It is a natural impossibility that a government should have a right to punish men for their vices; because it is impossible that a government should have any rights, except such as the individuals composing it had previously had, as individuals. They could not delegate to a government any rights which they did not themselves possess. They could not contribute to the government any rights, except such as they themselves possessed as individuals. Now, nobody but a fool or an impostor pretends that he, as an individual, has a right to punish other men for their vices. But anybody and everybody have a natural right, as individuals, to punish other men for their crimes; for everybody has a natural right, not only to defend his own person and property against aggressors, but also to go to the assistance and defence of everybody else, whose person or property is invaded. The natural right of each individual to defend his own person and property against an aggressor, and to go to the assistance and defence of every one else whose person or property is invaded, is a right without which men could not exist on the earth. And government has no rightful existence, except in so far as it embodies, and is limited by, this natural right of individuals. But the idea that each man has a natural right to decide what are virtues, and what are vices – that is, what contributes to that neighbors happiness, and what do not – and to punish him for all that do not contribute to it; is what no one ever had the impudence or folly to assert. It is only those who claim that government has some rightful power, which no individual or individuals ever did, or could, delegate to it, that claim that government has any rightful power to punish vices.”

 

Not only does Spooner reaffirm John Locke’s perspective on self-defense and “law enforcement,” but also the very important idea that government does not enjoy any rights which individuals themselves do not enjoy. The implications of this are quite staggering and certainly worthy of going into depth on their own merit at another time, but sufficient it to say for now that if this idea were sincerely followed to the letter, then it would have been impossible for Leviathan to have grown as it unfortunately has beyond the chains of the Constitution.

Tyrants aren’t just limited to the political sphere of human life, for they can also be just as easily be found right at home. Spooner observes that:

 

“The attempts of parents to make their children virtuous are generally little else than attempts to keep them in ignorance of vice. They are little else than attempts to teach their children to know and prefer truth, by keeping them in ignorance of falsehood. They are little else than attempts to make them seek and appreciate health, by keeping them in ignorance of disease, and of everything that will cause disease. They are little else than attempts to make their children love the light, by keeping them in ignorance of darkness. In short, they are little else than attempts to make their children happy, by keeping them in ignorance of everything that causes them unhappiness…[t]he results of such coercion are not to make the children wise or virtuous, but to make them ignorant, and consequently weak and vicious; and to perpetuate through them, from age to age, the ignorance, the superstitions, the vices, and the crimes of the parents. This is proved by every page of the world’s history.”

 

It seems to me that Spooner is saying that parents who coerce their children are just as bad as when the government does the same to adults. Although I’m certainly not stating here that I think that “peaceful parenting” is the correct solution here, what I do think is necessary is that a child’s self-determination, just like their adult counterparts, must be held as sacrosanct, even if those busybodies don’t like it. Similarly, Spooner had some choice comments to say regarding errant spouses:

 

“If a government can step in and say to a man – who is compos mentis, and who is doing his duty to his family, as he sees his duty, and according to his best judgment, however imperfect that may be – ” We (the government) suspect that you are not employing your labor to the best advantage for your family; we suspect that your expenditures, and your disposal of your property, are not so judicious as they might be, for the interest of your family; and therefore we (the government) will take you and your property under our special surveillance, and prescribe to you what you may, and may not do, with yourself and your property; and your family shall hereafter look to us (the government), and not to you, for support”—if a government can do this, all a man’s pride, ambition, and affection, relative to this family, would be crushed, so far as it would be possible for human tyranny to crush them; and he would either never have a family (whom he would publicly acknowledge to be his), or he would risk both his property and his life in overthrowing such an insulting, outrageous, and insufferable tyranny. And any woman who would wish her husband – he being compos mentis – to submit to such an unnatural insult and wrong, is utterly undeserving of his affection, or of anything but his disgust and contempt. And he would probably very soon cause her to understand that, if she chose to rely on the government, for the support of herself and her children, rather than on him, she must rely on the government alone.” [emphasis added]

 

Obviously, if you substituted the pronouns so that the shoe would be on the other foot, I think the principle of what Spooner was trying to convey here would still be correct. Put simply, if a spouse prefers to side with government oppression against whom is supposed to be their soul mate, then that disloyal spouse only deserves scorn and contempt for such a betrayal; not only that, but should that spouse also prefer to rely on the government for his support, then he must rely solely on the government, and not also mooch off of his (former) beloved.

After giving his apologetics against the government’s intervention of alcohol, Spooner remarks that:

 

“Poverty is the natural parent of nearly all the ignorance, vice, crime, and misery there are in the world. Why is it that so large a portion of the laboring people of England are drunken and vicious? Certainly not because they are by nature any worse than other men. But it is because, their extreme and hopeless poverty keeps them in ignorance and servitude, destroys their courage and self-respect, subjects them to such constant insults and wrongs, to such incessant and bitter miseries of every kind, and finally drives them to such despair, that the short respite that drink or other vice affords them, is, for the time being, a relief. This is the chief cause of the drunkenness and other vices that prevail among the laboring people of England.”

 

As provocative an explanation as I’ve ever heard, given the history of the English people. Unfortunately, Spooner does not go into any real detail why there is such rampant poverty, but at least he’s pinned down a key culprit for why some people engage in self-destructive behaviors when otherwise they would not. Spooner goes onto explain that:

 

“In fact, the poverty of the great body of mankind, the world over, is the great problem of the world. That such extreme and nearly universal poverty exists all over the world, and has existed through all past generations, proves that it originates in causes which the common human nature of those who suffer from it, has not hitherto been strong enough to overcome. But these sufferers are, at least, beginning to see these causes, and are becoming resolute to remove them, let it cost what it may. And those who imagine that they have nothing to do but to go on attributing the poverty of the poor to their vices, and preaching to them against their vices, will ere long wake up to find that the day for all such talk is past. And the question will then be, not what are men’s vices, but what are their rights?”

 

Here, Spooner is brilliantly illustrating the hypocrisy of all those statist busybodies who will lecture everyone else why they should live as they do, yet they shroud the harsh reality that is the iron fist of the State in the velvet glove of kindly speeches. Perhaps by emphasizing this, all the while avoiding the question of how the invisible hand of the market is what truly advances the evolution of human liberty, Spooner is able to simply get across the paradigm shifting idea that coercing your neighbors, by way of a third party, to live as you do, is in fact no way to live at all, for it only breeds chaos, destruction, and heartache.

Lysander Spooner’s Vices Are Not Crimes: A Vindication of Moral Liberty is a remarkable work of political philosophy. Unparallelled by most other ethicists, Spooner truly demonstrates the value of consent over coercion, especially when it comes to government. I can only hope that, one day, the next generation (or two) will read for what passes as “the law” today, and consciously decide to simply disobey its statutes, because they will realize that laws cannot, and do not, ever create virtue.

Testing Theories of American Politics

Special thanks goes to Matt for bringing this excellent academic paper to my attention, which I believe is empirical proof of the tyrannical wasteland left by the left-right paradigm.

Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens

by Martin Gilens & Benjamin Page

 

Testing Theories of American Politics cover

 

“Multivariate analysis indicates that economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while average citizens and mass-based interest groups have little or no independent influence. The results provide substantial support for theories of Economic Elite Domination and for theories of Biased Pluralism, but not for theories of Majoritarian Electoral Democracy or Majoritarian Pluralism.”

 

[Download PDF]

Mark Potok is a Conspiracy Theorist

Today’s meme highlights the most noticeable attributes of an individual whom some of my libertarian comrades have described as being my photo negative. Considering the SPLC’s close history with DHS (much like the Bitcoin Foundation’s intimacy with DHS, as well), I can’t help but chuckle at the irony of these governmental elements behaving just like the very conspiracists they claim to oppose, by way of profiling. If you want the latest humour written by Mark Potok, then feel free to read his latest annual piece on, “This Year in Hate & Extremism.”

 

Mark Potok is a Conspiracy Theorist

Taxation “Legally” Defined

The following definitions for “taxation” are taken from Ballantine’s Law Dictionary (3rd edition), Black’s Law Dictionary (2nd edition), and Webster’s Dictionary (1828):

 

 
 

(Ballantine’s)

 

The assessment and collection of taxes, a power and process by which the sovereign raises revenue to defray the necessary expenses of government, apportioning the cost of government among those who in some measure are privileged to enjoy its benefits and must bear its burdens [Messer v. Lang, 129 Fla 546, 176, 113 ALR 1073]. An act of sovereignty to be performed, so far as it conveniently can be, with justice and equality to all [Union Pass. R. Co. v. Philadelphia, 101 US 528, 25 L Ed 912]. Graphically, but realistically stated, obtaining the greatest amount of feathers with the least squawking.

See tax.

 
 

(Black’s)

 

The imposition of a tax; the act or process of imposing and levying a pecuniary charge or enforced contribution, ratable, or proportioned to value or some other standard, upon persons or property, by or on behalf of a government or one of its divisions or agencies, for the purpose of proving revenue for the maintenance and expenses of government.

  • The term “taxation,” both in common parlance and in the laws of the several states, has been ordinarily used, not to express the idea of the sovereign power which is exercised, but the exercise of that power for a particular purpose, viz., to raise a revenue for the general and ordinary expenses of the government, whether it be the state, county, town, or city government. But there is another class of expenses, also of a public nature, necessary to be provided for, peculiar to the local government of counties, cities, towns, and even smaller sub-divisions, such as opening, grading, improving in various ways, and repairing, highways and streets, and constructing sewers in cities, and canals and ditches for the purpose of drainage in the country. They are generally of peculiar local benefit. These burdens have always, in every state, from its first settlement, been charged upon the localities benefited, and have been apportioned upon various principles; but, whatever principle of apportionment has been adopted, they have been known, both in the legislation and ordinary speech of the country, by the name of “assessments.” Assessments have also, very generally, if not always, been apportioned upon principles different from those adopted in “taxation,” in the ordinary sense of that term; and any one can see, upon a moment’s reflection, that the apportionment, to bear equally, and do substantial justice to all parties, must be made upon a different principle from that adopted in “taxation,” so called [Emery v. San Francisco Gas Co., 28 Cal 356].

  • The differences between taxation and taking property in right of eminent domain are that taxation exacts money or services from individuals, as and for their respective shares of contribution to any public burden; while private property taken for public use, by right of eminent domain, is taken, not as the owner’s share of contribution to a public burden, but as so much beyond his share, and for which compensation must be made. Moreover, taxation operates upon a community, or upon class of persons in a community, and by some rule of apportionment; while eminent domain operates upon an individual, and without reference to the amount or value exacted from any other individual, or class of individuals [People v. Brooklyn, 4 N.Y. 419, 55 Am. Dec. 266].

    • Double taxation: see DOUBLE

    • Taxation of costs: in practice, the process of ascertaining and charging up the amount of costs in an action to which a party is legally entitled, or which are legally chargeable. And, in English practice, the process of examining the items in an attorney’s bill of costs and making the proper deductions, if any.

 
 

(Webster’s)

 

TAXA’TION, n. [L. taxatio]. A taxing; the act of laying a tax, or of imposing taxes on the subjects of a state by government, or on the members of a corporation or company by the proper authority. Taxation is probably the most difficult subject of legislation.

  1. Tax; sum imposed. [Little used]

  • He daily such taxations did exact –

  1. Charge; accusation. [Little used]

  2. The act of taxing or assessing a bill of costs.