It is important to note that Professor Moore distinguishes between rehabilitation for the criminal’s sake and for our sake, as a society. If society is determining what is best for the criminal himself, that involves just the sort of legal paternalism which we have discussed and rejected earlier in this chapter. By contrast, only rehabilitation for the sake of society is proper, and squares with the entire purpose of the criminal law. And in any event, if helping individuals to become self-sufficient members of society for their own sake is our goal, why is it that we would choose to spend scarce resources on rehabilitating car thieves instead of autistic children? Those who argue for this justification of punishment must argue why criminals are somehow more deserving of our help than the disenfranchised.
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Finally, incarceration of one who gives up his own natural rights serves the natural rights of all by keeping aggressors off the streets, where they can continue to inflict future harm. By contrast, unless it is convincing that they will continue to do harm, there can be no justification for criminalization. If I am required to compensate my neighbor for the lost value of his bush, I will almost certainly not allow it to happen again, and there can be no justification for incapacitating me or my dog, Gina.
Thus, unless at least one of these requirements is met, there cannot be a moral justification for government punishing an individual for wrongdoing, and thus, there is no concurrent justification for criminalization. It is absolutely essential to the ideal of limited government, and the pursuit of freedom, to limit the criminal law to only what is necessary to safeguard our liberties, and that means only prosecuting those who intentionally cause real harm by violating another’s natural rights without his consent and without moral justification.
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Conclusion
In sum, although the ostensible purpose of the criminal law might be to protect us from harm, too much prosecution is a far greater evil than too much crime. “Why?” you might ask. If you fear crime, then you are free to help yourself by locking your doors and buying a gun. Every sound adult human possesses the natural right to self-defense and all the intelligence and strength needed to exercise that right. If, by contrast, you fear unlawful prosecution, there is no feasible way to resist the coercive power of the state. How long will it be until the state’s long, powerful arm eventually reaches you? How long was it until an unstoppable tide of federal government evicted Native Americans from their homelands? How long was it until the government could command how much wheat you grow in your backyard? It is dangerous to be right when the government is wrong.
No, my reader, the government cannot be constrained, and liberty preserved, by pistols and door locks alone. It is only with laws that we can ensure enduring freedom and the enforceability of natural rights. The Founders recognized this inescapable truth. Certainly, they fought a long and bloody war to escape tyranny. But what did they leave us when the war had been fought, the battles won, and the enemy had retreated from our shores? They left us with a Constitution—a set of laws binding the government based upon the Natural Law—and a hope that it would be honored in perpetuity.
Sadly, since the day of its ratification that Constitution has been battered and worn down to its very bones—a mere skeleton of the liberty our Founders promised us. But, my reader, all the injustice in the world can never destroy the hope of restoring freedom, just as all the darkness in the world can never extinguish the flame in our hearts.
The Founders’ dream lives in each and every human being, as does the power to turn it into a reality. Although it is dangerous to be right when the government is wrong, that danger is imperceptible when compared to the danger of languishing for the remainder of our lives in the physical and spiritual chains of tyrants.
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Chapter 15
Ignoring Stupidity:
The Right to Reject the State
Since the government derives its powers from the consent of the governed, the final, and capstone natural right, is the right not to consent to any government. When the state has assaulted freedom and offered no accountability, are we simply to relinquish any and all interest in the matter as a lost cause? No, my reader, we must do just as the colonists did in 1776: Alter or abolish the government and institute a new system of laws which allows us to pursue our natural yearnings.
If the government itself came about in America by seceding from Great Britain, if the government itself exists only because free persons have freely given some of their natural freedoms to it, if the sole moral underpinning of the government in America is the free consent of the governed, what becomes of the government when that consent is withdrawn?
This is not the lesson or the argument of the Civil War, though lessons there are. This is the concept of a social compact. Since the federal government came about by the states freely ceding limited powers to it, why can’t they take those powers back? Since a dozen counties in western Virginia left that state and formed a new one during the Civil War, what is to prevent that from happening elsewhere in America today? And if I can no longer consent to the government that lies, cheats, steals, and kills in my name, why can I simply not withhold my consent and ignore it?
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The Positive Moral Duty to Disobey Stupidity
How did Thomas Paine and Thomas Jefferson view the right to disobey the government? Paine recognized dangers of a system which resulted in more and more British elites benefitting from the British government, and being given land in America. This would lead to a situation where there would be a growing population in the colonies, and the rest of the continent, and this population would be much less likely to seek independence, and much more likely to take up arms to resist an independence movement. This would severely hamper the prospects of uniting the entire population for the common goal of gaining independence, as well as introduce America to many more enemies of the independence movement, and it is why he called for imminent action.
Paine was very well aware that he and his fellow residents of the New World had a positive moral duty to act quickly to disobey the unjust laws of the British government, for if they let any more time pass, the unjust system could have bred an opposing force that was too strong for the colonists to defeat. Thus, he knew that one of the greatest, if not ultimate, dangers to liberty was infringements upon this right.
What did Thomas Jefferson have to say in the Declaration of Independence about government exercising unjust powers?
[W]henever any Form of Government becomes destructive of these Ends [the protection of our natural rights], it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.1
In other words, once a government strays from its just powers, it is the right of the people to remove the government, by altering or abolishing it; or in the colonists’ case, to fight a war for independence, and implement a new and just government. When government becomes the enemy of rights, it can be tossed out. Rights are permanent, inherent features of all humans; governments are devices that can come and go according to the wishes of those who cede power to them. Our natural rights cannot be changed or abolished, but governments can.
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Jefferson went to the heart of Paine’s argument calling for imminent action by the colonists:
Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed.2
Jefferson here is paternal: Do not get upset by immaterial and momentary problems that can be solved peacefully. However, since mankind is prone to suffering, we must constantly stay on guard and make sure the shackles of tyranny do not chain us down. Jefferson understood that this document preached
a political ideology that would cause rebellions in many other places in the world. Since he wished to maintain good diplomatic ties with other European nations, he pointed out that revolutions should not be started for trivial reasons, but only when governments become despotic or tyrannical. At the same time he issued a warning against complacency, because as he explained, “Eternal vigilance is the price of liberty.”3
But, when should you start to get upset?
When a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.4
Here, Jefferson is saying, when a government engages in behavior designed to obscure or deliberately ignore your rights, and when the government becomes the important item which turns you, the individual, into an unimportant item, and that its function is not to serve you but to master you, you not only have a right to get rid of the government, but you have a positive moral duty to get rid of it; put differently, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”5
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I Had a Dream Today, That My Brothers and Sisters Overthrew the Government
Just as it was Thomas Paine’s positive moral duty to organize mass disobedience of unjust laws by spreading the message of independence, individual liberty, and natural rights, and thus to expose the unjust actions of the British government, it is our duty to spread this same message, and expose the unjust actions of the current American government. Most importantly, we must engage in peaceful civil disobedience of those unjust laws. Just think of the world we would be living in today if the American colonists did not fight for independence and disobey the British laws, or if Rosa Parks did not think she had a duty to violate the unjust law which made it illegal for her to sit in the front of the bus, or if Dr. Martin Luther King Jr. did not find it his duty to fight injustice.
Not surprisingly, the right to ignore or disobey an unjust government has been articulated by many powerful American thinkers throughout our history, each responding to a different moment in a long train of abuses. Consider the examples of Henry David Thoreau and Dr. King. As explained by Thoreau, this positive moral duty of civil disobedience to unjust laws comes from the reasoning that if no action is taken by an individual to disobey and change an unjust law or legal system, the individual in turn practically becomes a supporter, an enabler of the unjust law or legal system, and anyone who supports an unjust law or legal system is acting in violation of the morality set forth by the Natural Law.
Dr. King clearly understood the necessity of acting upon the positive moral duty of civil disobedience, and he stated this reason in his “Letter from Birmingham Jail,” where he wrote, “I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere.” No longer shall Americans sit idly by at home and accept the status quo while injustice surrounds us. It is time to start peacefully fighting the injustice that takes place in our state legislatures as well as in Washington, D.C.
You Say You Want a Revolution
The entire collapse of human liberty we have seen in this book is precisely what happens when unjust laws are enforced by states and obeyed by persons in those states for too long. Since not enough members of society exercise their positive moral duty of civil disobedience, they have allowed this immoral and unjust system of legalized wealth redistribution and theft to go on for so long and grow so large that it has gained so many allies whose dependence on the system for survival has forced them to oppose and resist any true change. This is the precise scenario Paine warned the colonists about in regards to the war for independence, why he urged imminent disobedience to unjust laws.
It is the duty of moral persons to study the ideas espoused by classical liberal philosophers such as John Locke, Thomas Jefferson, and Thomas Paine. We must learn the lessons taught in Common Sense, demanded in the Declaration of Independence, and promised in the Bill of Rights, and we must stop obeying the unjust laws with which the government enslaves. It is time for us to elect new members of Congress who will codify these classical liberal ideals into law, and create a Declaration of Individual Liberty. No longer shall we sit idly by while the shackles of tyranny hold us down. We must stand up and fight, fight for our right to be free.
Conclusion
Why is it dangerous to be right when the government is wrong? While I have been writing this book, the United States experienced a bitter and divisive congressional election, an unchecked assault on privacy and bodily integrity at the Security areas of major airports, and the death of Osama bin Laden.
The congressional elections resulted generally in numerical victories for Republicans. In the House of Representatives, control shifted from Big Government Democrats to Big Government Republicans. In the Senate, the Republicans acquired enough seats to enable them to filibuster virtually any proposal put forward by the White House or by congressional Democrats.
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During the campaign in the fall of 2010, Republican candidates for federal office ran, almost to a person, vowing to shrink the government, slow federal spending, impede the march toward socialism, and restore individual liberty. These would be many of the same Republicans who, when they ran the Congress and took direction from President George W. Bush just a few years ago, authorized unlawful and unconstitutional wars, directly assaulted personal freedoms via the so-called Patriot Act (the most offensive legislative attack on constitutionally guaranteed freedoms since the Alien and Sedition Acts in 1798), federalized education, bailed out banks they liked and rejected the entreaties of those they disliked, and ran up trillions in debt. I have argued, however, that divided government can lead to transparency, debate, and exposure. We shall see. The same folks who have endured the government administered pornographic photographs and sexual groping at our airports spasmodically rejoiced at the killing of Osama bin Laden. While the emotional and patriotic sides of me rejoice that this monster is dead, the moral and legal sides of me are compelled to warn that this business of the President deciding to kill people is very dangerous. Put aside that governmental assassination is a violation of the Constitution, that all killing except in self-defense is immoral, the President cannot order any killing absent a declaration of war from Congress. If the President can kill a popularly perceived monster, can he kill one not yet known or feared? When will the killing stop?
During my writing of this book, we have also seen the advent of the Tea Party—a grassroots movement reminiscent of the Goldwater movement in the early 1960s—which heralds sound money, personal freedom, reduced taxes, and a general return to respect for the Constitution. It is, of course, easier for Republicans to advance these ideas when a liberal Democrat—or even a socialist—occupies the White House, than it is when one of their own does. It remains to be seen if we shall experience an enhancement of human freedom via a reduction in the behavior of government.
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Do we have a two-party system in America today? I think not. We have one Big Government Party. It has a Republican wing that prefers war, deficits, assaults on civil liberties, and corporate welfare; and a Democratic wing that prefers war, taxes, assaults on commercial liberties, and individual welfare. Neither wing is devoted to the Constitution, and members of both wings openly mock it. Will the Tea Party Republicans be devoured by the Big Government Republicans? I hope not; but I fear so.
My fear is based on the truism that in America, people go into government in order to utilize its powers to tell others how to live their lives. Very few persons—Congressman Ron Paul and Senator Rand Paul are the exceptions here—go into government in order to shrink and to restrain the government.
It is dangerous to be right when the government is wrong because government in America today is not logic or reason, it is not fidelity to the Constitution, and it is not compliance with
the Rule of Law: Rather, it is force. Government today steals liberty and property in the name of safety. It restricts your ability to express yourself, to defend yourself, to be yourself; and it uses fear to keep the people submissive. Government rejects its moral and legal obligations, insulates itself from litigation, breaks it own laws, makes its own rules, declares worthless paper to be money, and then devalues even that. Government will not hesitate to use force upon those who challenge it. Government has made it unlawful to resist its uses of force even when those uses are patently and unconditionally wrong.
But Americans have accepted danger before. And there are stirrings in the land that enough is enough. Wise folks are buying guns and gold. States are blatantly telling the federal government that they simply cannot and shall not obey federal commands that they cannot afford or are not grounded in the Constitution. Even many police have taken public oaths to disobey the orders of their superiors when those orders violate constitutional guarantees. And many thinking Americans—though apparently not the flying public—have seen through the false promises of safety.
The government’s sole moral obligation is to preserve freedom. And freedom is the unfettered ability to choose to follow your own conscience and free will, not that of someone in the government. If the government keeps us safe but not free, the government will have become tyrannical and it will be as illegitimate as was the government of King George III in 1776. And it will be time for it to go.
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It has been almost 240 years since last we dispatched tyranny from America. Is the spirit that animated the Founders in 1776 still alive? Are there those among us who unambiguously declare that liberty trumps safety? Is life so sweet and peace so dear that we would prefer to live as slaves rather than risk perishing for freedom?
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