 Go ahead. Yes, Jesse. It's quite interesting sometimes. Put it that way. I was – anyway, let's stay here. Let me just check with Danny. Okay. Everybody is far from the 24-minute delay. So let's get started now, and I will go longer if I need to, although there may be a lecture coming after. So I will try to hurry. I'll be glad to make this up later if necessary. So let's just get going. Okay, so let's continue with where we left off last time. And just to confirm everyone here and see, okay, see the slides here, okay? Okay, very good. Okay, so last time we left off with this slide here, we're talking about a common sort of confusion, which is the distinction between state and government. And the way this arises is usually libertarians that are opposed to what the state does, or even anarchist libertarians who are opposed to the state per se, will sometimes use the word government or the government as a synonym for the word state, a synonym. So they'll say libertarians are against the government, or they're against the state, or at least anarchists. And then you'll have an anarchist libertarian come along. They say, no, we're in favor of government. Government just means a regulated way of administering justice and rights and services that we need. And so we're not against government. So if they change the definition on us, then even anarchist libertarians are not against government. But this is only because they're changing the meaning of the word government to not mean the same as state. So let's go back and let's think of some definitions. The state is the primary thing that libertarians, as political theorists, are concerned with, whether we're a menarchist or anarchist. The state is an agency that has at least one of two characteristics. Number one, they can insist that they're the ultimate decision-maker of disputes in a given region. Or number two, they can tax. Now, if you think about it, either one implies the other because let's suppose you didn't claim a monopoly over dispute resolution in a given region, but you had the power to tax. Well, then you could obviously outcompete your competitors because you could tax your citizens and you could subsidize your services that way, and you could outcompete your competitors in the same way that government schools, what are euphemistically called public schools, can outcompete private schools, say in the U.S., okay? Or if you had no power to tax but you had the power to outlaw competitors, then you could simply charge a monopoly price for the service of justice because you're the only provider in a given area. So that would allow you to charge a monopoly price, which is the same thing as a tax. So the tax power leads to a monopoly, and the monopoly power over justice leads to tax power. So they're really equivalent. And in practice, the governments always have both, or the states always have both. The problem is when libertarians who are not anarchists try to say, well, we're against anarchy because we're against chaos. We're for the orderly regulation of human affairs. We're for the agencies that could administer justice, which they call government. Well, they define it that way, and even the anarchists are not against that. They just say that that could be provided privately. So there's sort of an equivocation going on here, and you'll see this. We'll get to more examples later in the course, but this is a common tactic. Sometimes it's unintentional, but someone will get you to agree to one meaning of a word, and then they will say that you've agreed with the other meaning of the word. That's equivocation. So they'll say, well, you agree that we need government? Yes. Well, then how can you be anti-state? Well, because when I agree to government, it's the word government used in the non-state since. It's just some kind of institutions or agencies in a society that provide justice or law or whatever. But then you can say, well, then you agree with the state. Well, no, now you're making the switch. You're equating the state with government, and you're trying to get me to, if I agree that we need some kind of regular procedure of justice, then I agree that we need the state. Well, that's a non-sequitur. So this is sort of a dishonest tactic taken by status sometimes, or men are conceiving. So let's look at what is a coherent definition of what the state is. And I think Hans German Hoppe's definition is very good. He said basically, like I said before, it's the power to compel all disputes be brought to that person. And crucially, even conflicts with the dispute resolution person himself has to be brought before him. So basically the state is the ultimate judge. And as Hoppe said, that does imply the power to tax to determine the price that you're going to charge for this service. So that's what the state is. The state is an agency that has the compulsory jurisdiction over a given area. And he can decide even disputes with himself and people. And predictably, of course, this will lead to decisions in favor of the state's legitimacy and authority. And the state will win in conflicts between itself and its citizens because they're hearing themselves before the state's courts. Okay? And the second slide here on page three elaborates on what I've mentioned already, that the power to have monopoly jurisdiction over a territory implies the power to tax. Okay? So as I mentioned before, menarchists, which are people that believe in a minimal state. These are libertarians who are not anarchists. They believe we need some government or some state, as they call it, or some government, sometimes they'll say. But then they will equivocate on the use of the word government, just like I've mentioned already. Okay? So this is an example where you have to be very careful of the word of equivocations when people use words in different senses. They'll get you to agree in one sense of the word. For example, as a simple example, some regular political person might say, do you agree that there should be justice? Do you agree that people should be fair? And as a general matter, sure, I can agree people should be fair. And then they'll say, well, do you think it's fair to pay someone $4 an hour for a $10 an hour job? So they sneak in this concept of political fairness to try to get you to where you have no way to disagree with it, because you've already said, well, I agree with fairness, but that was when it was defined in general terms. So be very careful of equivocations. We're going to see later on in this course that that is a problem that arises constantly. Okay? Turning to slide five now. Here's another thing you hear a lot. You hear talk among libertarians and even conservatives and classical liberals and even some hardcore libertarians that we are in favor of limited government. Now, if you take this term literally, well, first of all, all government is limited. No government is unlimited. Even a totalitarian regime has some limits. So they don't quite mean what they say when they say we're in favor of limited government, because no government is really unlimited. All governments have natural limits. Even kings in the monarchical times, even in Soviet Russia, even in red China, there are limits to what the leaders can do. They're limited by the people and the structure of the government itself. They're limited by the possibility of revolution, et cetera. So all government is limited. No government can be completely unlimited. And in fact, if you are aware of Mises' argument in the socialism debate, in the 1920s, Mises sparked an argument by putting forth an argument that socialism is impossible. And what he meant by that was if you had complete government control and no private property markets whatsoever, then it would be impossible to calculate. And the entire economic system would break down and we would all starve to death. Now, some people have said, well, in Soviet Russia, they had some productivity. They competed with the U.S. for a good 50 years, so they had some economic output. Mises would argue that, well, that's because they weren't completely socialist. They were socialist to some extent, but not completely. And in fact, they copied the prices of the West and they copied what the West was doing, what the warm capital systems were doing. So even under the most totalitarian regime, they're not completely totalitarian but not completely unlimited. To the extent that people survived and there was some economic prosperity, they had some degree of the division of labor and market action. So the idea is that no government is unlimited and all government is limited to some degree. So when we say we're in favor of limited government, that's like saying we're in favor of property rights. I mean, there's lots of property rights. As I mentioned in the last lecture, there are property rights in any political system. It's just a question of who they are assigned to. So the question is, if you're in favor of limited government, the question is not that it's limited. The question is what limits are you in favor of, right? So when we say we're in favor of limited government, what we really mean is strictly limited or a lot of limits so that the government's powers are very narrow compared to some ideal or some traditional conception. Now what's interesting about this model is that this is usually used to describe the United States or the American system as defined by the Constitution. But the American system is not representative at all because it's unique in the entire world because it is, number one, the world's most powerful state. And yet it's also unlike all the other states that it's in competition with, at least technically on paper, according to the Constitution, the state is not a normal state. It doesn't have complete powers that normal states have. Normal states are thought to have under international law sovereignty, and that is the ability to legislate or to act in general to protect whatever the government thinks they need to protect. So in other words, normal states, you have roughly 180, 200 states in the world. Every one of them, except for the United States that I'm aware of, has what's called plenary or complete police power or legislative power. And in fact, the United States, individual states are held to have that as well, except to the extent they've given up some of their jurisdiction to the federal government. So the federal government of the United States only has enumerated powers in the Constitution. So for example, most states in the world, almost no one would say that they don't have the right to outlaw murder. That's the law saying murder is illegal. It's a crime. But the United States government cannot do this, actually. They can't make murder a statutory crime. At least they couldn't do it constitutionally. Because there is no enumerated power in the Constitution to permit the federal government to do that. So we hear you have the contradiction of the world's most powerful government or the most powerful state, even though it is one of not plenary powers, one of limited powers, one of enumerated powers, unlike all the other governments of the world. In any case, the point here is that when you talk about governments or states as a libertarian, when you say you're in favor of limited government, you have to specify what you mean. And we don't have to necessarily mean it has to be the United States model of being enumerated where the state doesn't even have the power to outlaw crime. What we mean is the overall state in charge of a given jurisdiction only has the power to outlaw aggression as defined by libertarianism. So that's what limited means. But it's not apparent from the surface that that's what it means from the word limited government. So keep that in mind that when people say, I'm in favor of the limited government, they're really not saying very much necessarily because all governments are limited. And by the way, one thing I can mention here is that we libertarian, because the movement has been so America-centered, we have focused on the American-centric idea of the original American scheme, which is based upon a written constitution. So we've come to think of a constitution as some written document that limits what the government can do and says what its powers are and what its limits are. But the problem with this is, number one, a written constitution is just like a statute. It's just something that some bureaucrats sat down in a room and wrote. Could be right, could be wrong. And in fact, parts of the original American constitution are clearly un-libertarian, like the patent and copyright clause, like the validation of slavery by counting the votes of slaves as three-fifths of that of a white person, the power set up banks, the post office clause, any number of clauses in the constitution, the power to tax, the power to conscript, the power to seize property for public purposes, etc. Okay, so you have to stop giving so much credence to this idea of some written documents being a limit. And second of all, this has been a paper limit that has not limited the government very much at all, in any case. The English constitution, which may be a little bit not intuitive to those used to the American model, the English constitution is not written. It's just a series of institutions that have worked to limit the power of the British government. So a constitution doesn't need to be written. Okay, let's go on to slide five. By the way, any questions at this point? Tom asks, don't some left libertarians like Chomsky, well, I don't think he's a left libertarian. But anyway, don't they believe that property is only private and is being occupied or improved? Yes, some left libertarians, especially mutualists, do believe something like that. I'm not sure the relevance to the current discussion, but I think we did talk about this last time. The mutualist idea, as I understand it, and to be honest, I have trouble wrapping my libertarian Rothbardian head around it. Well, there's two parts. You say if it's occupied or improved, okay? Now, improved, I sort of agree with, because the idea of lock-in Rothbardian homesteading is that you have to somehow transform the property so that you put up border lines that serve as notice to people that you've now owned this property, you've appropriated it from the wilderness. So if it's totally unimproved, no one's really done anything with it. And I think they have in mind here all the vast wilderness in the United States. And I think there's like 25%, 30% of the United States territory, which is already vast, is effectively claimed by the United States government under the various park services, et cetera. So if we had a libertarian revolution tomorrow, I would say a large bulk of what is called federal lands now is actually unowned because it's not improved. It's not homesteaded, and it will be subject to homesteading right away. Now, but the other part is being occupied. Now, the mutualists and some libertarians, what they say is there's two things. Number one, you can't have absentee or distant ownership, okay? I mean, that's their main claim. Now, I agree that if you abandon a piece of land and you don't work to keep people's squatters off of it and you don't make a claim to it, you don't keep it up, then you could argue that you have abandoned it. Or if you have never done anything to improve it, that you never did appropriate or homestead it in the first place. But the occupation claim I think is more controversial because the argument there is that if – let's take an example. I homestead a piece of land. I kill it. I put up fences. I transform it. I improve it. I build a large building on it. And eventually I decide to sell it to someone or rent it to someone. So let's say I make it into a hotel. I'm running a hotel. Now, where does it matter where I'm living, where I control it from? I might not want to live in the hotel, but I allow people to live in my hotel, which is my house or my property. And I extract rent. I say, listen, you can stay there if you pay rent. Now, all the tenants of this building are just living in my property with my permission. They're paying rent. I might have a manager on the premises. As I understand the mutualist view, then the tenants could just take over the land because I'm distant and I'm not there. I don't think that's libertarian. I don't see why I lose property. It's not abandoned. It's not unknown. The claim of ownership is not unclear. The border is not unclear. The relationship between me and my contractual tenants is not unclear. So in that case, I would say that the landlord should stay the owner. Likewise, let's say I build a factory and I'm making widgets there. And I sell it or I hire a manager to manage it for me. I have a lot of employees making airplanes or whatever. And I move to another state and I collect my profits from this. Well, why should I lose my property rights in my factory? Just because I'm not present. I would say it's not abandoned because I have a contractual relationship with the employees and the manager to keep it occupied on my behalf. So to me, it's all about private contract. The only way you can overcome the landlord-tenant relationship or the employer-employee relationship is to just abrogate freedom of contract and say contract doesn't matter. And that's where I think libertarians disagree with the mutualists. Okay. So let's see what someone else asked here. So let's say, what would I say Chomsky is? I think we've actually discussed Chomsky in this room. I think he's sort of an anarcho-socialist. And as I've said earlier, I don't think socialists are genuine anarchists, so I think he's a confused socialist. Lee Cate says, in the 1950s, United Fruit owned vast lands in Guatemala that weren't used by them. If they bought it from prior despots that ran Guatemalan government, would they still have the property right claim? I think that's a harder claim to maintain. I think that if your only claim is just some piece of paper from a previous government that actually has never even homesteaded the lands or didn't take the title from previous homesteaders, that someone else could have a better claim to that. Or you could say it's just really unowned and that the first person to homestead it or parts of it would have a better claim than United Fruit. I don't remember the details, but I think arguably you could argue that, yes. Jackson says, possession seems a better way to allocate property rights. It prevents someone from owning property and perpetuity, and prevents one person or corporation from owning all the land, thereby turning the rest of us into tenants. Well, I would say that number one, we have to be careful not to develop legal principles based upon goals like that, because that's what law and economics facts do. That's what utilitarian and consequentials do. They say, what rules should we adopt to encourage the right kind of behavior? Number two, I think that the idea that everyone's going to be turning the tenant of some overlords that are private is similar to the fear that you would have giant monopolies arising in a free market without the government stopping them. And of course, there's a natural limit to this control. In the sense of land, like I said, the Rothbardian principle would say that you could abandon land, and if you have land and you don't really transform it, or maintain it. And you have such a vast tract of land that you claim, but it's so vast that you're not really controlling that people start squatting on it. Over time, you're going to lose your land. So there's a limit to how far you can extend yourself. Tony Cape, not to pull us into a tangent, but the anti-development homesteader that most says, oh, you're talking about unspoiled land. Let's not deal with that right now. That will be too much of a tangent at the present time. My basic answer would be take a look at Rothbard's article on pollution in the Cato Journal from years ago in the 1980s. I think there are just limits to how much you can homestead. And I don't think it's possible to homestead the entire continent of a pristine North America to keep it as pristine so you can wake up every morning and see a clean air state with no airplanes passing over, no development, just to think you're in a pristine environment. There's just no way to do it that I can think of. Okay. Tyron says, consider the Louisiana Purchase. Did Napoleon own it? Could he transfer a title? It depends. I don't think he owned it. But I think if the government blesses that it recognizes actual use by a private person, then if you had some revolution, then that should be recognized. That's my basic view. But the other stuff, no, I think you just ignore it. Okay, so let's go on. This is more on the confusion of what limited government means. This shows the danger of not realizing, as I said before, that limited government means the government is restricted to enforcing individual rights in accordance with the libertarian principle of non-aggression and property rights. That's what you have to mean by limited government, because here I have a quote by an objectivist who is a sort of old friend of mine who said that a small government, he said the objectivist, which is the type of libertarian, are not really for small government. Or they said if you're for limited government, it's in a certain context. What they say is, any government that you need to enforce or to defend individual rights is what we mean by limited government. That's what they mean by it. It's not what I mean by it. Or it's what I mean by it, but it's by different conception of individual rights. Because, as this guy said, I think this is Roger Donway, who's a David Kelley type of objectivist. He said, small government means a government that absorbs a small percentage of the GNP. Well, if a country's been invaded, the government might absorb 50% or more of the GNP to mount the defense, but it's still a limited government in the relevant sense. So you can see that if you're not careful with these metaphors and these kind of vague terms, they spin out of control. And you literally have here someone objectivist claim to be in favor of minimal government, saying that you could have a government spend or absorb, as he calls it. They gloss over how the government gets the money, which is my taxation, of course, but absorb 50% of the GNP and still be limited. Now, that's not what any libertarian, I know, would think of. It's limited. Okay, let's switch to another topic here, a little bit related, but slightly different topic. Many of you may know that Hans-Hermann Hoppe, who is a leading Misesi and Rothbardian economist and libertarian theorist, has come up with a lot of arguments that, number one, democracy is much more problematic than it is previously. They've been recognized by libertarians, and that monarchy is less relatively problematic. Now, Hoppe argues that he's an anarchist, so he thinks that it is impossible to have a limited government. That's the logic of government or the state, no matter what size, no matter what configuration, whether it's monarchy, whether it's democracy, whether it's even a monarchy. The logic is for the government's powers to creep and to grow, in order to become totalitarian. In a way, this is similar to Hayek's argument in the Roe de Cerf, where he said that any mixed economy is going to tend towards totalitarianism. Now, Hoppe is often accused of being a monarchist for making his argument, but he is not a monarchist, and I just want to set that straight. I'm going to have a quote here from him. Despite the comparatively favorable portrait presented of monarchy, I am not a monarchist, and this is not a defensive monarchy. So, what Hoppe's argument is is simply this, that a monarchy, in some systematic respects, has incentives to be more like what you could expect a private society to be than a democracy. His argument is that most libertarians have assumed that over history, it's what's called the WIG, W-H-I-G, theory of history. The idea that history always improves. This theory says that when we moved from monarchy to democracy, yes, democracy is not quite a libertarian paradise yet, but it's a step closer to it. In other words, that was progress. Moving from monarchy to democracy was progress. That's the conventional view, and as Hoppe argues, even Rothbard and Mises bought into this a little bit, or to some extent. So Hoppe's idea is that his purpose here is to argue that there are unappreciated problems with democracy, and there are unappreciated relative advantages to monarchy with respect to democracy. So his whole argument here is that compared to democracy, monarchy is actually better in a lot of ways. He gives lots of examples and lots of economic arguments why the monarch has an incentive to preserve the value of the country that he, in effect, owns, is overrored. So he has an incentive not to adopt policies that are very short run oriented or that would over time diminish the value of his country, his estate, basically. Whereas in democracy, you have short-sighted leaders who come in for four years at a time, two years, six years at a time, and they will waste the value of the country for current benefit to the harm of the future, which is what we see, of course, in the West. So this is an interesting thing. So when you hear Hans-Hermann Hoppe call it a monarchist, I mean, he's explicitly disavowed it, and he's not in favor of it. We'll get to this shortly, but this relates to Hoppe's views on immigration. Now, Hans-Hermann Hoppe has been a little bit notorious in the libertarian circles because he's had some comments about immigration. And what he's argued is, based upon this line of reasoning, like what he says is, if a monarchy is closer to an anarchy than democracy is, then the policies that a monarch would adopt, the immigration policies he would adopt, if they're different from those that a democracy would adopt, then those policies are probably closer to what would be enforced in a private society. And if, and to the extent we have a democracy, we'd probably be better if the rules they selected were closer to those the monarch would select than the policies, excuse me, that a democracy would select. So that's his basic argument. It's like a second or third best case that if you had a free society, there really wouldn't be no succinct as immigration. There wouldn't even be a concept. It would just be private owners extending invitations to whoever they want to come to their property. But when you have a state, you have to have some rules about who's coming into the public property because there's always public property in a state. And his only point is that the rules of immigration that a democracy would select are worse in many respects than those that a wise monarch would select. Tyrone asks, is it public property oxymoronic? I don't think it's oxymoronic because it's not a contradiction. Public property just means property owned by the state, really. Whatever is claimed by the state. So the roads are public property. Yeah, of course it's propaganda. It's not really public property. It's better to call it government property, which is why, for example, I never call public schools public schools. I always call them government schools when I talk to outsiders to emphasize that it's a school run by the government. The agency that controls thought, the agency that kills people, it's not a public school, it's a government school. So yeah, sure. It'd be better to call it government or state property than public property. Okay, let's go to slide eight. Here's another one. And remember earlier we talked about the equivocation some menarchists and conservatives engage in when they try to trap you by confusing – they're using two different senses of the word government. So they'll use it to mean whatever agencies have to do with justice and defense and law. And if you agree to that because they're against chaos and anarchy in that sense, then they'll say, well, then you can't disagree with the state because the government means the state. So they suddenly change the meaning of government or they sneak in an unproved assertion that government necessarily implies or means or requires the state. Well, you see something else like that, especially in America where, as I mentioned, the federal government, the central state and the U.S. is unique in that it has only enumerated powers according to the Constitution. So we have a federal system where power is supposed to be separated not only horizontally, that is, the tripartite division of powers, the executive branch, the legislative branch, and the judicial branch, but a vertical separation of powers between the central state and the states. And that's why the states are assumed to have plenary legislative powers. They can make laws against murder and rape and theft. And the federal government doesn't have those general legislative powers. They have other powers to legislate granted in the Constitution, but they're circumscribed and limited. So that's why the United States federal government is supposed to be unique. But what you hear is quite often you'll hear this distinction between the federal government and the states being blurred even by libertarians. And they do it by using the word, the phrase, the government. So they'll say, for example, the Constitution prohibits the government from infringing on free speech, or they'll say the Constitution prohibits the government from establishing a religion. Well, the problem is that's actually not true because when they say the government, they mean the entire Unitary American government, which is really a blend of the federal and the states. So they use this language. They use the Constitution's language in the Bill of Rights as a limitation on the states. So if you say, for example, it is not unconstitutional for Massachusetts to establish a state religion, then they will say, well, then you're crazy. The Constitution doesn't allow the government to do that. Well, they don't understand that the Constitution is what created the federal government. The Constitution is what gives the federal government its powers, and it only gives it limited powers. And the Bill of Rights only clarifies what powers were given them in the first place. Tyron Price quotes language from the First Amendment, Congress will make no law, and you're right about that. It was only – so here's a way, in my view, to look at this. The states were the original – the 13 original states were states under international law. They came together with a treaty or a compact called the Constitution, and they created the federal government, which has certain powers. This is a new agency, but it only has enumerated powers, only those according to its treaty, the Constitution. And the Bill of Rights just put extra limits on what the federal government could do to make it more clear. So there is no power in the Constitution for the federal government to outlaw murder, or to outlaw rape, or to outlaw marijuana, or to outlaw free speech. Now, the Bill of Rights has the First Amendment, for example, that says Congress shall make no law, respecting infringing on free speech, or respecting the establishment of a religion. Now, that's just for extra caution. Even without the First Amendment, the federal government still doesn't have an enumerated power in the Constitution to make such a law in the first place. So such a law would be unconstitutional for several reasons. Number one, a law against murder would be unconstitutional because there's no power enumerated for the federal government to do that. The state makes murder illegal. That's not unconstitutional because states are like regular states under international law and they have plenary or complete police power or legislative power. They can make any law they want unless there's a limit in their own Constitution. But the point is the Bill of Rights was added just as extra security to make sure that everyone understood this new federal government, this new central state that we're creating, only has certain enumerated, limited rights. Can't do anything it wants. Only certain enumerated rights. And we really mean it. That's what the Bill of Rights was. But what modern libertarian centralists have done, they want the federal courts to be able to reach into the states and to review state laws that they don't like and that we don't like, that I don't like, and to overturn them based upon the Constitution. But the whole point of the Constitution was to limit the feds, to keep them from being too powerful, to keep them from being tyrannical. So to take the Bill of Rights, which was meant as a limit on state power, and to turn it into a grant of state power to the feds, that is, you're granting them the power to regulate the states now, flips the whole thing on its head. The whole point was to limit federal power. But now it's been turned into a grant of power to oversee the actions of the states. And we see this in the abortion case, Roe v. Wade. We see it in the homosexual case from 10, 15 years ago, the Lawrence v. Texas case, where the federal government, the federal court say, you know, a given state law violates a given provision of the Bill of Rights. Which makes no sense, because the Bill of Rights was meant to limit the feds. Now, Tony Cape says the 14th Amendment has been interpreted to incorporate superseded state laws. So what happened was, until the 14th Amendment, so the Bill of Rights, let me just, for those who are not versed in this history, or who aren't Americans, excuse me, the Constitution was ratified in 1789. On that day, the federal government was limited. They had no powers for those that were enumerated. And they had no power to, let's say, restrict free speech, because there was no power. But two years later, 1791, the Bill of Rights, which is the first 10 amendments, was passed, was ratified. And they provided extra precautions. But they were still limits on what the federal government could do. And they were understood this way. For example, in 1791, on the year that the Bill of Rights was enacted, several states, two or three or four states, including Massachusetts, had a state religion. It's called congregationalism. It's a Protestant religion. So there actually was, there actually was, there were state religions in the states in 1791 that would nowadays, no way they would be upheld by the First Amendment. And that was because the First Amendment was universally understood not to apply to the states, nor were the rest of the Bill of Rights. I mean, how could the Ninth Amendment apply to the states? The Ninth Amendment basically implies that the government is one of enumerated and limited powers, but states are not enumerated in limited powers. They have plenary police power, which the Supreme Court has recognized and which international law recognizes. The Tenth Amendment makes no sense whatsoever to apply to the states. The Tenth Amendment implies federalism. Well, that limits the federal government, not the states. The First Amendment says Congress will make no law. Well, the states don't have Congress. They have their own legislatures. So the Bill of Rights was never understood to apply to the states. It was a limit on the federal government until after the Civil War, 18, I want to say, 68, 71, when the, I think, 68. Yeah, it was started, but I think the Fourteenth Amendment was ratified in 1868, if I'm not mistaken. So the Fourteenth Amendment was ratified. And the Fourteenth Amendment, well, number one, it was unconstitutionally ratified. You study the history of this. Look for some articles by Gene Healy, H-E-A-L-Y, on newrockwell.com. The Fourteenth Amendment was ratified, well, actually it was never ratified. What happened was they had a minimal number of ratifications, but when one of the states that had ratified saw the coercion the federal government was applying to the conquered southern states, the CSA states, that state, I think it was Maryland. It withdrew its ratification. And Congress refused to allow them to withdraw their ratification and just passed a law saying, we hereby recognize that the Fourteenth Amendment has now been ratified. So basically the Congress just declared it to be enforced even though it wasn't legally ratified. In any case, the Fourteenth Amendment did impose, assuming it was ratified properly, and now that's de facto law. The Fourteenth Amendment did impose some obligations on the states. It said states, it basically has three parts to it. Number one, it says states have to give due process rights to people. Number two, it has to provide equal protection of the laws, which means it can't discriminate between black and white. And number three, it has to protect the privileges and immunities of the citizens of the United States. Now, due process just means you have to have an actual trial or a procedure. You can't just take away some of the rights willy-nilly. Equal protection meant discrimination, but that wasn't that broad apparently because we needed two more amendments later to give blacks and women the right to vote, right? So obviously the equal protection clause didn't mean too much because it still permitted the governments to prevent blacks and women from voting. So it didn't really provide equal protection. It didn't really mean to. And finally, libertarians argue that the privileges and immunities of citizens of the United States should be read broadly to read into it most of the fundamental rights of the Bill of Rights. The problem with this is that the word rights is not used. Number one, another problem is if you look at the legislative history of the Civil Rights Act of 1865, I believe, that this amendment was modeled on, it really meant a narrow set of rights like the right to travel between states, the right to have contracts enforced. It did not mean the Bill of Rights. Otherwise, why wouldn't it have just said rights or the Bill of Rights? Another thing is if the privileges and immunities clause of the Bill of Rights, I'm sorry, the 14th Amendment really was meant to incorporate the fundamental rights of the Bill of Rights, well, wouldn't that have included due process, which was in the Fifth Amendment already? In other words, people that argue for incorporation say that the 14th Amendment's privileges and immunities clause was supposed to incorporate the fundamental rights in the First Amendment, the Second Amendment, the Third, all the way to the Eighth, I guess, because the ninth and tenth make no sense when applied to the state. So let's say we're talking about the First Eight Amendments. But what about the Fifth? The Fifth Amendment says there are due process rights. So the privileges and immunities clause in the 14th Amendment would have automatically included a due process right if it was an incorporation, incorporation, this type of vision. Well, if that's the case, why did the 14th Amendment specify due process next to the privileges and immunities clause? I mean, it makes no sense. This is a little bit of a legalistic argument, but the point is it's ridiculous, in my view, to believe that the privileges and immunities clause really was meant and was understood around the country at the time by the ratifiers and the people voting at the time to incorporate the entire Bill of Rights. It's theological. It makes no sense. What about these award rights? What about the new process clause? What about the word Congress and the First Amendment? What about the Ninth and Tenth Amendments? In fact, what about the original First and Second Amendments? The original Bill of Rights had 12 amendments. The first two were never passed originally, so the Third Amendment on pre-speech became the First Amendment. The First and Second Amendments, I forgot what the Second had to do with, but the First one had to do with not raising the salary of congressmen during a session. And that, unlike later proposed amendments to the Constitution, which had a period of time where they could be ratified, had no closure for the period of time for ratification. Because this is early on in the process and the raptures of the Constitution weren't as sophisticated back then. So they said, look, as soon as three-fourths of the states ratified this, it becomes part of the Constitution. Well, about 15 years ago, the final state finally ratified that First Amendment, which became the 27th Amendment. Now, if that had been ratified originally, then the very first amendment to the Constitution would have been one about congressional salaries. Now, if the incorporation view is correct, then the 14th Amendment would either somehow incorporate the natural right to not have your state legislators have their salaries raised while in session, even though the original provision applied to Congress, or you'd have to say, well, that's not a fundamental right. So now the 14th Amendment's P&I Clause applies to not the First Amendment, not the original Second Amendment, but the third, fourth, fifth, sixth, seventh, eighth, ninth, and tenth amendments, but not the 11th and not the 12th Amendment. I mean, it's obviously a completely incoherent theory. Okay. By the way, I highly recommend for anyone interested in this topic at all to look at this great book by James T. Patrick called The Sovereign States and also Felix Morley's Freedom in Federalism. These are two great books on the original American federal scheme. And of course, Tom Wood's book on nullification is very good on this as well. Okay. It's 15 past the hour. And again, I'm sorry for starting late. Why don't we take just a quick five-minute break and resume, and I will be happy to go over as long as I can in the remaining time. Okay. Let's get back on this. All right. Everyone here, any questions at this point? Otherwise, we'll go to the next slide. Test, test, test. There's a microphone on. Thanks, Brian. Okay. Slide nine. Oh, I've already talked about all this. Slide 10, I've talked about. Okay. Let's turn to a different topic now. We've already touched on this earlier because these things tend to be entangled, and it came up already. But let me just talk about it in general. No. This is sort of my view on this. I don't think it's incompatible with Rothbard and Hoppe and even Mises. How I think about it. I think about the issue of restitution versus retribution or punishment. Which one is the right way to go? I think that the general category is aggression that is initiated for us and force that's in response to that initiated force, which I call responsive force. Force that's in response to aggression, I call responsive force. And libertarians are opposed to aggression, the initiation of force. We're not opposed on a rights level to forceful responses to aggression or to initiated force. And so responsive force can include defensive force, restitution, forces to get restitution, to incapacitate or stop a dangerous person, to deter them from committing further crimes, or even to rehabilitate them. Okay. So how you characterize the responsive force that you're using depends upon your motive. That is the motive or purpose of the victim. But that's just characterizing it. That's not justifying it. So my mind as a libertarian, as long as the force is proportionate in response to initiated force is justified, then what you want to do with it is up to you. Okay. Now that's a theoretical matter. That doesn't mean that there's no difference between them. It's still the case that punishment, for example, is much more costly and risky and less productive as a type of responsive force than other types of responsive force. And therefore we can expect, as I've mentioned before, in a free society, restitution to be the dominant mode of justice, maybe even ostracism. We don't know ostracism. So there are lots of reasons for this, which I've gone over before. I won't belabor them at this point in time. But it's important to recognize that, in a way, the most fundamental right is the right to retaliate. Okay. So let's say someone is victimized in a severe aggressive way. They're the victim of a big beating, assault and battery. This victim is entitled by the logic of what the aggressor has done. They're entitled to respond in kind to the aggressor. They're entitled to respond in kind during the commission of the crime. In fact, they're entitled to use lethal force during the crime, right? You could kill someone if you need to to defend yourself from even a fairly mild battery. But after the fact, if someone has administered a severe beating to you, then they really can't complain if you catch them and administer a beating to them to punish them, if that's what you want to do. But you could use this right to punish for other purposes. You could use it to teach them a lesson. You could use it to exchange or to negotiate some payment of money, which you can call restitution or ransom. You could use it as a threat to make them undergo counseling or enter into some institution that will make them rehabilitate it. I mean, there's lots of ways you can use this right to punish, but the point is it provides an anchor, a proportionality anchor for the level of restitution itself, which is why I mentioned the millionaire example earlier. Okay, Jesse says, what about a bystander? Can a witness be justified in defending a victim unable to request aid without prior arrangement? Well, that's a good question because your last two or three words gets at the heart of the matter. Where are you located? Usually, in a free society, you'd be located on some piece of property that's owned by someone. Now, either it's your property or it's the aggressor's property or it's the victim's property or it's maybe some public facility, but not public in today's sense, but public in that it's, let's say, you know, it's in the gallery. It's in a mall or it's on a street owned by a street company. Almost everywhere you could imagine these encounters taking place, it's on someone's property, and the owner has some ability to set down default presumptions and rules about what's going to happen there, who's entitled to act if they see what appears to be a crime happening, et cetera. So the first question is, what are the rules of the property owner the relevant property owner? And presumably, if it's still on a public street or the victim's property, then the rule would be a third party is entitled to rescue someone who is apparently the victim of a violent crime because it's too late to rescue them later, so time is of the essence, right? Now, if it happens to be on the aggressor's property, well, either the aggressor has reasonable property rules like this or they don't. If they do, then again, the same presumption applies. If they do, if they don't have reasonable rules, well, then in a way you took the risk by entering onto the property of such a person's property. It could be like entering into Walter Block's mythical murder park, for example, where you're entering into a theater where everyone can shoot each other and hunt each other in a sport. That's nothing more than an extreme burden of a football game or a boxing rink, right, where people are consenting to violence against each other, so it's not murder there either. So I would say that's the first question is whose rules apply, and that would be the rules of the property owner. But if you ask a default question, we assume we don't know who the owner is or maybe it's done on some unknown property or maybe the property owner wants to use the default rules of the territory. My view and I think the typical libertarian view is that a third party can take in the reasonable context of what they're seeing and act accordingly. So if you are a victim but you're participating in a desirable battle with someone and you make yourself look like you're really the aggressor so that other people seeing this event are led to believe that you are the aggressor, then you're sort of inviting their interference and you shouldn't do that. That's the basic thing. Now Jan Scapa, Jan Scapa asks, if someone threatens you that he will kill you, what is a response which is justifiable? I think I have some slides on this later which we'll get to later and I've got some blog posts about this, but my general view is that libertarianism prohibits the initiation of force against someone's property or body. But that includes threats. Now why does it include threats? It includes threats because by the logic of interpersonal interaction and by the logic of the way that norms are justified, if person A is threatening person B, what is he really doing to B? He's doing one of two things. And this is defined in the civil law. That is the law of the continental countries like France, Germany, Spain, and then Louisiana and America and Quebec and Canada and Mexico, et cetera, in Switzerland, Greece, Italy. That's really assault. And assault means one of two things. Number one, it means attempting to commit a battery. A battery is the physical beating of someone. So it's attempting to commit a battery. Or it's putting someone in reasonable fear of receiving a battery. Okay? So a threat is usually one of those two things. So like if I swing and act like you, I try to cut your head off, that's called assault. And if I swing and act like you, and I really am not trying to hurt you, but I make you think that I am, that's also assault because you're in reasonable fear of receiving a battery. In either case, the victim is entitled by the logic of norms to do the same thing to the aggressor or to the threatener that was done to him. Now what was done to the victim? What was done was that he had a chance of receiving a battery. In other words, someone tried to commit a crime or he was put in fear of receiving one. So if you're entitled to do that back to the aggressor, then that really means you have the right to actually commit aggression on him because this is an institutional setting. This is a planned retaliation. This is a recognized retaliation. The only way that you really have the right to attempt to hurt someone is if you have the right to carry it through. And the only way that you have the right to really put someone in fear of receiving a battery is if they believe it. And the only way they can believe it in an institutional setting is if you have the right to carry it through. So this is why, in my opinion, threats are a species of aggression. So that's a general understanding and justification, in my view, of why a threat is a type of aggression. It's a type of aggression because the response by force is not aggression. So what the force is responding to has to be aggression, which is a threat. So then the question is, what type of threat counts as aggression? And I think it has to be the type of threat that's either a serious, causally efficacious attempt to commit the battery, or it's a serious way of causally putting the victim in fear of receiving the battery. So that's why I believe that even stalking of certain types approaches the line and can be classified as a type of threat. And so, for example, some lady dates a guy once or twice, and he turns out to be a weirdo, and he starts calling her repeatedly, leaving strange, ominous, threatening messages, making her afraid to step out of her house. At that point in time, I believe that guy has basically opened himself up to physical retaliation. If this female victim of his stalking were to get a tough uncle to beat the hell out of this guy, or even to eliminate this guy, I'm not so sure that that is ought to be considered a crime because he's basically put her in fear of receiving the battery, and she's defending herself. So I think that it has to rise to a certain level, has to be immediate, has to be serious, has to be causally efficacious, can't be an idle boast, but at a certain point you do cross a line where if you wipe this guy out and defend yourself, then civilized society is not going to provide any serious sanction to you for doing that. Before I go on, let me ask if Annie's around. Please alert me when I have to get off because I think you might have another class coming in 27 minutes, so we probably have to clear out over too long. So let's keep going until I get a warning. Brian says, Brian Mooney, does increasing risk of harm to others like drunk driving equate a threat? Again, these questions at first seem difficult, but if you just ask whose rules are applying? Because in a private society there wouldn't be public roads, right? There would be private roads. So A and B both enter this road knowing what the rules of the road are, and that's where the word, you know, these questions, the rules of the road kind of comes from. So the question is what's a market rule? What's the rule that would be adopted? Some libertarians have argued that drunk driving per se is not a crime, and I tend to agree because it's such an artificial state criteria, but I could imagine that private road owners wanting to attract customers would have reasonable rules of the road. They would say there are speed limits or regulations on how you drive, you drive on the right side of the road, on the left side or whatever. We have certain stop sign and yield sign conventions and caution light and red light conventions, et cetera. And we also have rules about impairment, you know, texting, drinking while driving, drinking while stoned, on drugs, whatever, because I'm not going to want to get on a road, well, I'd rather not get on a road where anything goes as permitted. I'd rather get on the competing road where they have reasonable rules. So the question, first of all, is what are the rules set by the owner? And I think that can basically handle all the problems. Private property rights solve these issues. Lee Cape asks, who would protect children from child abuse, neglect, et cetera? Well, okay, let me just be honest. Who protects them right now? I mean, if you're walking in the mall, who protects you from being jostled too roughly by strangers? Or if you're driving in a parking lot or being bashed in by someone else just being malicious? I mean, most people want to abide by social norms and they want to avoid big conflict like this. Most parents won't protect their children. So the same thing that protects children now, despite an ineffective state and an ineffective child protection service agency, will protect them in a free society. Just the natural community relations, the vigilance of relatives and friends, et cetera. But you could imagine a crucial situation where two people, they leave society, they go to a desert island, no one around, and they have a child and they just enslave it and abuse it forever. There's just no law. I mean, injustice is possible. But I believe that a variety of social artifacts, insurance costs, social norms, social shunning, ostracism, social stigma, would arise. And in extreme cases, you would have relatives or even friends of the family coming in to violently rescue the child. And they would probably be vindicated and recognized by society as the new parents of the child, and they get severe enough. So I think just you could ask the same question about who's going to give money, who's going to give food to poor people in a free society. Well, people that care about other people and they don't want them to starve. You wouldn't have much starvation or poverty, but to the extent you did, people would have a lot of resources to deal with it. And people are kind, and they would have charitable organizations that would deal with this. And if child abuse was a significant problem, you could see different charitable groups arising, maybe vigilante type groups arising as their mission in life to vindicate the rights of unrepresented children. They would solicit funds or use their own funds. They would use the legal system or ostracism or actual raids and rescues to save children that are being abused. So I don't think it would be any worse, certainly be much better. Lee says, could parents ever lose a child? Who would decide if the parents are horrible and the kids are neglecting them? Yeah, I think parents could lose a child. Sure. If you have a severe enough case of abuse, then certainly they could lose a child. I mean, let's take an extreme example. Let's say you have two parents that are totally neglecting their child. They're abusing the child, et cetera. It arises to the level where the child wants to leave, and everyone in society recognizes that this is something that is far beyond what the parent is supposed to be doing, so that the child is not presumed anymore to be consenting to these people being his representatives. Right? Then if a relative stepped in and said, I'm taking this child, then society would say, look, these seconds that are volunteer parents are better than the first by far. And we would support their rights to protect the child and to act on the child's behalf because it's more reasonable to presume that the child would want these loving parents to guard the child than the original abusive parents. Sure, I think that could happen. Tony Cape asks, libertarian standard on the subject of legal standing. Can any concerned eight individual hire the agency? I mean, I think the more you ask these kind of questions, the more we're getting out to the question of predicting exactly how the legal contours of a free society would look like. So you get a more and more spotty ground because really it's far different from what we have now. I think you would have a hierarchy of presumptive representatives, just like you have right now, a hierarchy of presumptive heirs. If someone dies in test state without a will, then we presume that your state goes to your spouse and then to your children. And if you don't have children, then it's your parents. You don't have parents, then it's your siblings. You don't have siblings, then it's your uncles and aunts. You don't have them, then it's your cousins. If you don't have them, then it's your distant cousins. And at a certain point, it's called a sheet. It goes to the state. Now, in a private law society, you wouldn't have the state as a residual claimant, but you'd have – just at some point – look, if you're totally – you don't know anyone or you're totally out of heirs, then your property's abandoned and anyone can homestead it. So it's the same idea with legal standing for these kinds of things. I think that you'd have a presumption of representatives of the child. It'd be the parents first until they do something that demonstrates that they're not the presumed guardians of the child anymore. They will be, I don't know, maybe a sister or brother, maybe an uncle, maybe a grandparent, maybe a neighbor, maybe a close friend, maybe a church group that they're associated with, maybe the PDA that they signed up to, the private defense agency, would have rules about these kinds of things. Alex Busman, does this give an incentive to eliminate heirs? You can clarify, but I'm not sure this is referring to, but I believe that any type of rule that would give such an incentive would tend to be disfavored for obvious reasons. And I don't think the rules I've sort of dashed off here give an incentive to eliminate heirs. It's not realistic. I mean, almost everyone you know, especially people of means or that people care about, are part of a network of family and kin relations. It's not really realistic to eliminate them all, so I'm not sure about that question. Victor Nunez, what about crimes that are based on arbitrary parameters like pedophilia? Because that's based upon the 18-year age. What would define this arbitrary age in a world of private rules? My view is that a lot of those rules would tend to be more context-based, less numerical. I mean, I tend to think people would be considered adults a lot earlier and even earlier still in certain cases. If a 12-year-old really wants to leave and shows he's a sound mind and really knows what he's doing and has a bad enough situation or wants to get the hell out, he can manumit himself. I can imagine situations like that. Could there be arbitrary rules, maybe, because you would have the influence of the regional agreements from private-disciplined PDAs? So maybe 18 or 21 would arise. I tend to think that if numerical rules arose, there would be presumptions and not hard-to-fast rules. And number two, there would be lower than what we have now because we'd be less paternalistic than we are now. Tom asked if Samali, throwing a ball from left field here, if Samali is anarchist, shouldn't it flourish more than the surrounding states? How do anarchists reconcile these two things? Well, the type of anarchism we libertarians favor is a system of strong private property rights. So I don't know if Samali is anarchist in that sense.