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Guest Post: Law And The State
The next in a continuing series (most recently: Money and the State).
Law and the State
Submitted by Free Radical
The more corrupt the State, the more numerous the laws. – Cornelius Tacitus
It has been said, albeit in jest, that the five most important words in the United States Constitution are “Congress shall make no law...”i It is all but impossible for Congress not to make law, however, for Congress is the legislative – the lawmaking – branch of government. As obvious as this is on its face, what is not obvious, but nonetheless true, is that legislated law is inherently in conflict with the very reason that Congress was created: namely, to represent the people. Why? Because
… the more numerous the people are whom one tries to “represent” through the legislative process and the more numerous the matters in which one tries to represent them, the less the word “representation” has a meaning referable to the actual will of actual people other than that of the persons named as their “representatives.” ii
Since the matters to be dealt with are limitless, so is the legislation required to resolve them, which is why
… a legal system centered on legislation resembles … a centralized economy in which all the relevant decisions are made by a handful of directors, whose knowledge of the whole situation is fatally limited and whose respect, if any, for the people’s wishes is subject to that limitation.iii
A cursory examination of the numbers, from a historical perspective, drives the point home:
The Constitution was framed for 3 million people in thirteen sovereign states. When the first Congress met in 1790, there was one representative for every 30,000 [people]. Since only property-holding white males could vote, [this comes to] around 5,000 voting citizens per [representative]. By 1920, the U.S. population was 90 million, and Congress capped representation in the house at 435, where it remains today. Now, however [2002, when this article was published], there are 287 million Americans, yielding a ratio of one representative for every 655,000. If we apply this ratio to 1790, there would have been only five members in the House of Representatives. Or, to put it another way, if the ratio of the framers existed today, there would be around 9,000 members in the House. iv
Clearly, the notion that but those with what are now commonly known as “special interests” – i.e., those with the money to pay for the requisite access – are represented in any meaningful way in the U.S. today is ludicrous:
All special-interest groups seeking a share of federal largesse work diligently, day in and day out, to urge the government to abandon or ignore constitutional limits and award them subsidies. In contrast, the general public is widely dispersed and rarely ever well organized politically.v
And insofar as special interests are at odds with those of the people as a whole – i.e., insofar as they merely reflect the fact that the state is “the fictitious entity by which everyone seeks to live at the expense of everyone else” – it is equally clear that what is represented in the end, is the interests of the state itself, since the state has no other means of living at all:
It is unfortunately none too well understood that, just as the State has no money of its own, so it has no power of its own. All the power it has is what society gives it, plus what it confiscates from time to time on one pretext or another; there is no other source from which State power can be drawn. Therefore, every assumption of State power, whether by gift or seizure, leaves society with so much less power; there is never, nor can be, any strengthening of State power without a corresponding and roughly equivalent depletion of social power.vi
This being so, the growth of state power demonstrates beyond all doubt the trend away from representation and toward centralization. At the time of its founding, the combined civil and military employment of the United States’ then-federal government was perhaps 2,500 peoplevii, or roughly one federal worker for every 1,600 citizens, while its now-central government employs some 14.6 million people, or more than one central worker for every 21 of the nation’s present population. Amounting to a growth rate of nearly 7,600%, it is little wonder, then, that Americans’ tax burden has grown even more. For while the average U.S. citizen paid a paltry $20 a year in federal taxes at the time of the nation’s founding, today the average citizen pays over $10,000 a year in inflation-adjusted terms, amounting to a growth rate of fully 50,000%.
And little wonder, as well, that the legal apparatus that propels the process is equally out of control. After all, the laws on the books in the United States have long been beyond counting, and Congress has no interest in capping them for the simple reason that by doing so it would put its members out of their jobs. What Congress does instead – with the full support of the other two branches of government – is to secure the jobs of its members through the passage of one positivist law after another, ad infinitum.
And thus do we confront a fundamental difference between negative and positivist law: While negative law is inherently parsimonious, positivist law is inherently profligate, the latter endlessly violating what the former naturally embraces, doing so with predictable results. For legal positivism not only creates new laws but, in the process, new “rights.” And as distinct from the few and very real rights upon which civil society is based – i.e., as distinct from the non-intervention of the negative golden rule – positivist rights are inherently interventionist in that, as grants of privilege, they impose obligations on some for the benefit of others. Be it food, housing, healthcare, employment, education, retirement, or some other “entitlement,” others – namely, taxpayers – are forced to pay for them, meaning that individuals’ legitimate rights are ipso facto violated.
Moreover, because ignorantia juris non excusat – “ignorance of the law is no excuse” – it is inevitable that as the legal apparatus expands, certainty of the law – which “is probably the most important requirement for the economic activities of society”viii – becomes impossible. And thus is the social enterprise set adrift upon a sea of uncertainty, its compass useless amid the perfect storm of legal positivism; thus does the legislative process result not in law but in lawlessness; and thus is society subjected to the nullification of the complex by the of the institutionalization of the complicated. For even though the words are generally considered to be synonymous, a subtle but vitally important distinction can be made between the complex and the complicated vis-à-vis the unintended consequences of the one versus those of the other.
We are all familiar, of course, with Adam Smith’s famous passage in The Wealth of Nations regarding the invisible hand, whereby the individual, in pursuit of his own interests, “frequently promotes that of the society more effectually than when he really intends to promote it,” doing so in recognition of the fact that “It is not from the benevolence of the butcher, the brewer or the baker, that we expect our dinner, but from their regard to their own self interest.” Thus do we “address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages.”
And simply put, this is how the market functions – i.e., as an endeavor in which individuals cooperate in recognition one another’s self-interest – the result of which, with the introduction of money, is complexity on a scale that would be unattainable – indeed, unimaginable – on the level of subsistence or barter. And we have but to consider an age-old board game to understand this. For its simple and certain rules, which virtually anyone can comprehend, provide for a permutation of moves in an all but infinite variety, the elegance of which has attracted humanity’s finest minds since the game’s invention, more recently pitting high-powered computers against them. In other words, what makes chess so elegant is precisely what makes the market so elegant, their respective rules being so few, certain, and understandable that each is all but unlimited in the complexity it can generate, said complexity adding commensurately to the enjoyment of life.
Not so for, say, the U.S. tax code, which was only a few pages long at the time of its introduction in 1913 but is now nearly seven times the length of the Bible, requiring some 7.6 billion work-hours of tax compliance each year at a cost that is projected to rise from over a quarter trillion dollars today to nearly half a trillion dollars by 2015. So incomprehensible that not even one of the world’s most renowned geniuses could understand it, the U.S. tax code constitutes drudgery on a stupendous scale, detracting in like proportion from the quality of life and doing so solely to transfer power from society to the state.
Thus do we arrive at the vital distinction between the rule of law and its ruin: Society, being ruled by law that is common to it, is inherently complex and accordingly unlimited in the amount of order it can generate, while the state, being law unto itself, is inherently complicated and accordingly unlimited in the amount of disorder it can generate.
And in light of the rampant disorder with which we are now confronted, it is clear that in positivizing society’s money and its law, the state has not only toppled The Twin Pillars of Civilization; it has shattered the foundation upon which they stand.
For it has destroyed the freedom that is society’s sine qua non and thus imperiled society’s very existence.
But how has the state done so? And why has it done so? Why, in fact , does the state even exist? We address these all-important questions in my next submission: “The Nature and Origin of the State.”
i The United States Constitution, Amendment 1: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
ii Bruno Leoni, Freedom and the Law, Liberty Press, 1961, p. 19.
iii Ibid., pp. 6 and 7.
iv Donald W. Livingston, “Dismantling Leviathan,” Harper’s magazine, May, 2002, p. 14.
v Thomas J. DiLorenzo, Lincoln Unmasked: What You’re Not Supposed to Know About Honest Abe, Three Rivers Press (Crown Publishing Group, Random House, New York), 2006, p. 72.
vi Albert Jay Nock, Our Enemy the State, Libertarian Review Foundation, 1989 (1935), Chapter 5, “Social Power vs. State Power,” p. 5.
vii Records only go back to 1816, at which time, according to TABLE Ea894–903 of Historical Statistics of the United States, there were a total of 4,837 federal employees, rising to 399,381 in 1916 and reflecting a growth rate over 8,200%. Working backwards to 1790, then, 2,500 federal employees at that time is a very generous estimate and could well have been significantly lower.
viii Ibid., Leoni, p. 70.
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We need a reboot. It's the only way to save the country.
The reboot button has been pushed and TPTB are scrambling to influence the outcome to benefit their interests.
Tyler,
I pulled this despotism film from wepollocks channel thought you and the ZH community might take a run at this and give your impressions of the current "State" of things.
http://video.google.com/videoplay?docid=102585813125825400#
At your service regarding a reboot. It is a constitutional amendment process. It has been outlined here:
http://strikelawyer.wordpress.com/2011/01/15/amending-the-constitution-t...
http://strikelawyer.wordpress.com/2011/01/15/us-constitution-28th-amendm...
http://strikelawyer.wordpress.com/2011/01/15/28th-amendment-first-and-se...
http://strikelawyer.wordpress.com/2011/01/16/28th-amendment-section-3/
This will eviscerate the financial industry ( a Good Thing); allow the citizenry to economically breathe again, and restore monetary sanity.
Not easy, though.
Good Stuff. Thanks
You're welcome. Spread it around as much as you can. I'd like to get some feedback.
I think you are to be commended for your efforts, Jerry, but the bosses no longer care about the Constitution or obeying it. That horse has left the barn - the State is not going to be reformed.
From their standpoint, why should they care? They influence or control every large public voice, they have all the big weapons, and they print money on demand, which buys anything.
The America you seek is dead and will not be coming back. (I'm sorry.) However, it can be replaced with something similar or better... once the current abomination is gone.
In many ways that is what the amendment does: it makes a new country, for all intents and purposes. Or maybe a return to the country that existed before 1913, nearly 100 years ago. Yet this is what the constitution was for, precisely to permit a peaceful transition to a new and better regime when the existing government has wrecked things. It would be very unfortunate, in my view, if we didn't at least make an effort to use the mechanism we have rather than allow things to socially deteriorate to the level that will occur if we don't try. It really could be done. The beauty of it is that the overlords do not have to climb aboard until it looks inevitable. I can't see them turning their weapons on a peaceful but insistent populace that is merely employing the legal mechanism that is rightfully theirs.
And again, what are the alternatives? The disorderly collapse of governments is not usually a pretty picture for anyone, them included.
whatever, home-skillet. there aint gonna be no constitutional amendment.....seriously.....you think we can "legislate" out of this?
it aint about being "easy"...reboot,per se, means a different approach than what's been tried. "making your voice heard".....writing your congress-douche.......voting.....these are not re-boot programs, these are BAU programs and are ineffectual.
Actually, this is almost entirely a matter of law. The problem is debt. Debt is created through law, enforced through law and it can be abolished through law.
So as a matter of fact, yes. You can legislate your way out of this, but our elected "legitlators" will never do it by themselves. They can't stop a constitutional amendment if enough of the rabble are behind it, however.
And it is far from easy to do this. It will take a lot of work and faith and dedication.
And...it's the only peaceful way.
Yep
UNSUSTAINABLE !.......STRUCTURABLE !!
Wake me up when the ratio is 1 useless, lazy, fat, stupid, corrupt asshole Fed puke/1 poor tax paying (temporarily) citizen. Till then, just keep giving your money to JPM and the Nazis.
Excellent, thank you.
Twin Pillars - Gold and the Golden Rule if I read your other post right.
Our leaders have debased both; debased the money supply, rescinded the rule of law, rewarded malfeasance, greed and selfishness, while encouraging usury and theft of the future of generations.
Equivocation and Sophistry rule the land; a mad penchant for inaction, delay, obfuscation, circular reasoning - whatever it takes to keep the fantasy plates spinning on the sticks and prevent them from falling to reality.
Nice summary eb, I am committing that to memory...
Zerohedge loads superfast on firefox 4 beta
Now we can start wasting our time much more quickly!
There is always a good idea, then everyone gets together, someone takes charge, and then you pay up.
Time for peeps to wtfu...or at least it's getting close. Hopefully before the new american idol starts in a few days. I say (in movie parlance) "Release the Kracken...!"
We have lost our INNER SOVEREIGNTY ..... We no longer are a law unto ourselves so now we need someone to rule us.We should stand up to authority but we are afraid.
Yes!
And it is the job of the state's "priests" (school teachers, televised talking heads and newspapers) to make sure you stay that way.
Where do I apply for one of those $200K/yr Federal Porn Critic jobs?
SEC
Rebooting the republic is well underway.
46 republics (states) are seated with interim republican governments.
Delaware, Rhode Island, New Hampshire, Maryland will hopefully be seated in the next few days in accordance with the 5th Amendment of the Constitution of the united states of America circa. 1860.
Join us?
http://republicoftheunitedstates.org
Liberty and justice for all.
You don't require a return to sound money???
More people are employed by H&R Block 450K than by the active army 420K. Some folks call H&R Block private enterprise...
Thus is Free Radical's assessment of the ratio of "now-central" employees grossly understated (as I'm sure he'd be the first to admit), as the "tax servicing" industry is no more free enterprise than is the "military-industrial complex," the "health-industrial complex," or any other extension of our thoroughly fascistic government.
Including and especially the legal-industrial complex otherwise known as Congress.
The state can kiss my ass.
That was just federal. Now someone has to come up with a number for the states and the towns. Yep, getting closer to unity.
with any luck at all, i would think Bennie and the boyz at the big banks can get that $10K per citizen per year up to 20K over the next year.....and if they can eliminate the social spending, get Bennie to funnel even more cash over to the holding tanks at the banks......
then, all they have to do is figure out how to convert it all to silver/gold, and transport out of the country before the citizenry takes up the pitchforks....
should be easy as the media is still completely under their thumb.
++..
The only thing that bothers me more about what they are doing is how easy it is for them to do.. The people actually ask for it..
me thinks, we are officially fucked. but thank god, we have rock and roll and the blues.
my condolences to the US of fucking A. R.I.P. america is toast†
but there are alternatives, other side of H O P ey
Predatory jurisprudence (from the US Supreme Court) and predatory legislation (from the US Congress) are the culprits.
Once 100% corruption levels have been attained, all arugment becomes specious.
I sort of liked this blog post until he quoted Adam Smith's invisible hand crap -- too tedious, tiresome and arbitrary.
"I sort of liked this blog post until he quoted Adam Smith's invisible hand crap -- too tedious, tiresome and arbitrary."
Chill, friend, it's just another term for the spontaneous order that FR cites elsewhere and that is central to the social enterprise:
http://www.zerohedge.com/article/guest-post-natural-law-civil-society
The state hates spontaneity and can kiss my ass.
Did anyone adjust that for inflation? Everything else gets adjusted, why not this?
A failure in this smacks of sensationalism. All else in the article is just groovy.
Thank you Monsieur Radical for a pleasant afternoon read.
But but but . . . we get to much More from our sacred government nowadays! Why, they're offering free genital fondling at the airports now! THAT's nothing our Founding Fathers could have dreamed of, I'll bet.
tax the big heavily, tax the small guy lightly.
healthy and diverse and robust, bitchez.
Well said, small guy. We'll talk again when you're big.
No wait, you never will be, since you obviously have no understanding of the entrepreneurial instinct and thus of that which powers human advance.
Work hard only to have everything taken from you simply because you're "big"?
Take that, Steve Jobs, and get back to the garage you came from.
Aside from the fact that Steve Jobs can kiss my arse, at what point is 'big' too big? At what point does wealth become obscene?
I've worked for myself since the 80's.
......and thus of that which powers human advance.........entrepreneurial instinct is a factor in human advance? you must be a capitalist. obviously you have no understanding of the human spirit and how it relates to your landbase and community,or an understanding of the rise of class division/elitism with the advent of agriculture in the lands that we bomb regularly now
How 'about the government just stop spending money it will never have.
Since when was a higher credit limit the solution to insolvency?
As long as they can get away with it.
penalize the big fish, encourage and grow the little fish.
make the too big to fail fail, help the little guy run riot.
an ecosystem you can believe in, ladies.
penalize the big fish, encourage and grow the little fish.
Yeah, sure, but first you've got to set up a fish government to justly redistribute the fish food. And then the fish leaders decide that since they are the big fish it would be stupid to go against their own interests. So the big government fish eat the confiscated fish food all by themselves and follow that up by eating all the little fish.
That's the guaranteed end of all such fish wishes.
This will not end well.... I am afraid!!
Congressman, Howard Buffet, (Warren's father) 1948: "Before 1933, whenever people became disturbed over Federal spending they could go the the banks, and redeem their paper currency in gold, and wait for common sense to return to Washington."
Anonymous: A gold standard is an important leg of freedom because it prevents unlimited expansion of money and government. The current scramble for the survival of the fiat monetary system is breaking down civil society by making it's benefactors resort to lawlessness, which is politely being called "Regulatory capture" and "Too big to fail." (BV blog, 2010)
Chinese President, Hu Jintao: "The current international currency system is the product of the past." (WSJ January 16, 2011)
Nicely referenced, FR.
The sounds of an approaching smashup of the American economy seem to grow louder every week. It reminds me of a description this past week on the National Public Radio program, Car Talk, featuring the Tappet Brothers Click and Clack.
The caller (a Pennsylvania college student) brightly defined his car problem to be solved as an increasingly loud noise like an airplane, perhaps coming in the vicinity of the left front wheel; louder with increasing speed and louder as time goes on.
After responding that he was not connected to the Penn football team, the Brothers suggested he was going to need a helmet, anyway.
The problem he was describing was the continuing failure of the wheel bearings in the front wheel as they continued to be destroyed one by one, or even two by two. Before long, the wheel will stop turning, said one brother.
“What?” exclaimed the student.
Said the Brothers: It won’t turn anymore, which means that the left front wheel either comes off or stops turning while the right wheel propels the car around in a circle into oncoming traffic and an approaching semi.
“Wow!” said the student.
The moral here is that the bearings in this economy are heating up and failing one by one or two by two. And when the system eventually freezes up, you’d better have a helmet.
This is an outstanding series of articles on Austrian economic thought.
Note: Credit for the "invisible hand" should go to Richard Cantillon who first described it in An Essay on Economic Theory (1734).
Perhaps it is time some of the states went their own way. There are entire regions of the country that wallow unapologetically in big government and socialism (yes, yes I know the US is a facist state - socialism is a cornerstone of facism), whereas other regions would prefer big government take a flying leap. I don't think it is possible to remedy the corruption in D.C. - it is SOP now.
The shear size of the federal government as it is now lends itself to corruption - to the average big government supporter, bought and paid for voter and likely entitlement recipient, Trillions of dollars is an unfathomable number, a virtual infinity.
The solution I think is becoming clearer; not fixing it, but divorcing from it.
But if we divorce, who will take care of the twins; Benny and Barack?
They should be returned to Hell asap to get what they deserve after completing a successful mission of dividing the country...
F^(k the twins. They're not my idiot bastard children. They think the state is good enough for everyone else, it should be good enough for them.
"The solution I think is becoming clearer; not fixing it, but divorcing from it."
YES! I might say "escaping it," but then again, I can get a bit dramatic at times. :)
Good one.
No, the purpose of government is not to "represent" the people. The stated purpose of government is to protect and defend individual human rights. Period.
Nobody alive today signed the Declaration of Independence or Constitution. We are not parties to that agreement or "contract". The government of the USSA literally does not exist. It is, like all organizations, a "fictitious entity".
I do not consent to be governed. Why the hell would I, or anyone else, agree to be enslaved by a herd of megalomaniac sociopath predators who claim to "lead this fiction" today. Do they also lead other fictions, like SantaClaus and the ToothFairy?
Every human who works for "the government" is part of the MOB. Period. Today, it is impossible to claim there is any legitimacy whatsoever for "government". None. Zip, zero, nada. Any such claim is a blatant farce, on its face, to anyone not totally blinded by the birth-to-death brainwashing of the government sponsored mainstream media (and plenty of other outlets too).
People should stop talking about "government" - either call it "the mob", or "the thugs", or some other semi-appropriate term. Talk about Stockholm Syndrome! Give me a break! They were pikers! Today, to defend anyone "in government", or any action taken "on behalf of government" is defending your rapist. Today, that is both metaphorically and literally true --- just board an airplane to confirm.
Why do people continue with the "nice talk" and continue the pretence of legitimacy? Give me a break. They are predators, pure and simple.
Yes, predators... though maybe not "simple." They have a large class of people employed to make them seem necessary and noble... to make us feel that without them we'd die.
I suspect you're probably correct.
However I simply cannot imagine my brain malfunctioning so completely as to have such insane thoughts --- like, "I'd die without the predators and the parasites they employee and/or encourage (with food stamps and other goodies)". Amazing how utterly and totally insane and dishonest (with themselves) humans can become.
"Why do people continue with the "nice talk" and continue the pretence of legitimacy?"
For the most part, because the checks are still coming. But when they stop and/or have zero after zero added . . .
But no, there will be martial law first, enacted after the subject has been changed with a trumped up war in the ME (or rather, the "Final Solution" to what's already been started).
Then we'll see.
Because "the checks are still coming"? Yeah, that explains it for maybe 15% or 20% of the population who collect foodstamps or other government handouts. But how do you explain the 70% who must send them the checks? Which probably includes 98% of the people in this forum.
Woops, I forgot about "government workers". Yeah, that ups the percentages significantly, but doesn't invalidate the point.