Tuesday, April 18, 2006

A Distinction Between Freedom and 'Due Process'

Stuart K. Hayashi

The following is a slighlty revised version of an article of mine that originally appeared in the Tuesday, April 18, 2006 edition of Hawaii Reporter. This also appears on my real, better blog -- The Fiftieth Star. So check it out right now!

"Government is not reason; it is not eloquence. Government is force ... "
--Apocryphally attributed to George Washington

Political freedom is security against spoliation. Dictionary.Com defines spoliation as "the act of...plundering."

More precisely, "spoliation" means the initiation -- that is, the starting -- of physical force against non-consenting parties' person or property. That includes larceny, kidnapping, and unintended property damage.

If you survived a stickup because you handed the muggers your wallet, the robbery still counts as violence, as you would've been killed if you didn't cooperate.

Contract violation (such as fraud) is also spoliation, as it's theft for me to contractually promise to pay you for something, and then take it without paying.

To secure our liberty from the rule of cutthroats, we entrust government to exercise retaliatory violence. The more someone resists our laws, the more violence the State responds with.

Suppose Murray never pays the compounding fines for his jaywalking offense. The city eventually sends armed men to apprehend him. Murray runs from them, so they mace him. If he fights back ferociously, he may need to be roughed up . . . or even shot.

Laws are ultimately enforced at gunpoint.

Cops are right to employ such force against spoliators -- pickpockets, rapists, swindlers, murderers, and abductors, all of whom start violence. But when it passes laws forbidding peaceful behaviors, the government itself spoliates innocent individuals.

Here critics scoff, replying that citizens implicitly consent to anything democratically-elected legislators decree. I disagree, for Ancient Athens was doubtlessly wrong to democratically vote on executing Socrates for his rhetoric.

Of course, U.S. authorities cannot detain or bludgeon civilians arbitrarily. America, unlike Third-World dictatorships, has "due process of law," which places numerous procedural barriers in front of officials before they can kill a lawbreaker without being penalized for it.

However, just because America's Founders set up "due process" to rein in frivolous prosecution, that doesn't mean that "due process" equals freedom. That confuses means with ends. If you lock jewels inside a chest, you wouldn't say the chest is itself a jewel; the chest's purpose is to protect jewels.

Now imagine some democratically-elected lawmakers enacting legislation to incarcerate someone for three years if she houses a cat. Angela illegally keeps one anyway, harming nobody. Neighbors see the pet and snap pictures of her with it.

Eventually, detectives grow suspicious. After they show "probable cause," a jurist awards them a warrant to search her residence, where they find the animal. They read Angela her "Miranda rights" and book her. She gets her phone call in custody. Because she cannot afford an attorney, the state provides her one.

Angela only gets convicted after prosecutors demonstrate beyond any reasonable doubt to impartial jurors that she kept a cat, calling her neighbors as witnesses, displaying their photographs, and exhibiting the evidence taken from her premises. Angela appeals her sentence, but it's consistently upheld since judges find it obvious that she in fact did the crime.

Throughout this entire scenario, Angela received "due process." Investigators could only search her estate because they secured a warrant after establishing "probable cause." Angela got her requisite phone call, reading of "Miranda rights," jury trial, counsel, and appeals, and the onus was upon the prosecution to irrefutably prove her lawbreaking.

Yet the State still violated Angela's rights, because it threatened violence upon her for actions that didn't hurt anyone else's body or private belongings. Her guards would've manhandled her if she tried to flee the courtroom.

Though the above case is imaginary, real-life democratic governments with "due process" really can -- and often do -- promise to imprison people as punishment for peaceful-but-illegal behaviors, with even greater force reserved for those who attempt to escape their captivity. Such measures amount to government-enforced kidnapping.

Government kidnaps those who privately smoke recreational marijuana in their own homes, for example.

Likewise, you cannot legally hire a willing adult who offers to work for you for hourly compensation below the mandated minimum wage. If you're caught doing that and don't pay the fines for it, you can expect government to abduct you over it.

"Due process" won't save you from the slammer if you openly disobey a wicked law that never should've existed. America had long-established "due process" in the 1940s, but that wouldn't have prevented police from locking you up if you, in fact, flouted racial segregation laws back then.

True freedom requires that laws only prohibit spoliation -- not peaceful, mutually consensual activities among legally-competent adults, whether they are personal or commercial in nature.

Related articles by Stuart K. Hayashi

* "The Invisible Gun" (FreelyThinking.Com Version, Mad Prophet Version, Jacques Tucker's Website Version)

* "The Grown-Up Bullies of Democracy"

* "What Capitalism Is and Is Not"

* "Freedom Before Democracy"

* "The Properness of Property" (Pt. 1, Pt. 2)

* "The Myth of the Social Contract" (link goes to the first of several installments)

* "Conservative Author Michelle Malkin Defends FDR's Policy of Mass Kidnapping"

* The Costs and Benefits of the Corporation"

* " 'Animal Rights' Are Human Wrongs"

* "Positive Reform Through Good Philosophy"

* " 'Death With Dignity' Must Live Again"

* Campaign Finance Follies"

Recommended links:

* "Escalating Crimes" by Ken Schoolland (shorter audio version here)

* News articles about a corrections officer shooting an inmate trying to escape. I don't believe the corrections officer in any way acted improperly by shooting; I post these links in case there are those who are still skeptical of my point that laws are ultimately enforced at gunpoint: Honolulu Star-Bulletin Version, Honolulu Advertiser Version

* Read about John Singer of Utah, who was shot dead by the government for not sending his kids to government school or private school

* Information on Californian millionaire Donald Scott being shot dead by federal agents even after obeying their orders: One, Two, Three

* Thomas Jefferson stressed that, even if jurors knew that a defendant had in fact broken a law, the jurors would have a right to acquit the defendant if they believed that the law itself was wrong. In recent decades, however, U.S. judges have betrayed Jefferson's legacy by telling jurors that they have no legal authority to use their position to nullify laws they disapprove of: One, Two, Three

* "Why Rent Control Is Immoral" by Michael S. Berliner, Ph.D.

* "What Trustbusters and Marxists Have in Common: Equating Economic and Political Power" by Richard M. Salsman, CFA

* "Production vs. Force" by Robert W. Tracinski

* Jeff Landauer and Joseph Rowlands on individual rights

* The late Kerry Pearson ("Lux Lucre") did this flash animation of Ken Schoolland's "The Philosophy of Liberty"

* "Campaign Finance Limits vs. Free Speech" by Andrew Lewis

* "The U.N.'s Distortion of Rights" by Robert W. Tracinski

* United Nations Declaration on Rights Destroys Individual Rights" by Glenn Woiceshyn

* John Locke's Second Treatise on Government (a very long book online)

* Online version of Frederic Bastiat's pamphlet, The Law (note: in the treatise's original French, Bastiat used the term "spoliation" just the way I do, but the English translator changed the word to "plunder")

*"State-Sponsored Terrorists" by Noel Malcolm