Category Archives: Law

“We must obey God rather than men”: Lutheran-Calvinist theories of resistance


“We must obey God rather than men”: Lutheran-Calvinist theories of resistance
By Keir Martland 

The theology of Luther, Calvin, and other sixteenth-century Protestants is similar in some respects to that of S. Augustine, and arguably in the case of Calvin, based on a misunderstanding or misrepresentation of Augustine’s doctrine of predestination, with Harro Hopfl describing the latter as Luther and Calvin’s “favourite Patristic theologian.” Whatever the provenance of it, there is in the writings of Luther and Calvin a strong emphasis on the fallen nature of man. Now, earlier Christian thinkers with such a view of the impaired, flawed, even wretched nature of man, tended to also hold such a view of society as a whole. When thinkers such as Augustine or later ‘Political Augustinians’ applied themselves to political matters, because of their view of man and society, they gave no ‘naturalistic’ interpretation of government, authority, and power, no account of it independent of the source of all goodness, God, since man and society were, on this account, incapable of any virtue apart from Christian virtue. Their treatments of politics, then, left little room for theories of resistance or even for theories of ownership and political authority independent of the Church; rather, such thinkers tended to view all dominion as belonging ultimately to the Church and they expected at least passive obedience from the Christian to the established secular – delegated – and spiritual authorities. Yet there developed in the sixteenth-century a Lutheran-Calvinist resistance theory, or theories. It is, on the face of it, hard to see how the resistance theory as found in Theodore Beza or the Vindiciae contra Tyrannos developed from the writings of Luther and Calvin. Read more

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Whodunit? Who “Meddled” With Our Democracy? (Part 2)


©2018 By ILANA MERCER

Not a day goes by when the liberal media don’t telegraph to the world that a “Trumpocracy” is destroying American democracy. Conspicuous by its absence is a pesky fact: Ours was never a country conceived as a democracy.

To arrive at a democracy, we Americans destroyed a republic.

One of the ways in which the republic was destroyed was through the slow sundering of the 10th Amendment to the Constitution. The 10th was meant to guarantee constitutional devolution of power.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The de facto demise of the 10th has resulted in “constitutional” consolidation.

Fair enough, but is that enough? A perceptive Townhall.com reader was having none of it.

In response to “Whodunit? Who ‘Meddled’ With Our American Democracy” (Part 1), the reader upbraided this writer:

“Anyone who quotes the 10th Amendment, but not the 14th Amendment that supplanted it cannot be taken seriously.”

In other words, to advance the erosion of the 10th in explaining who did our republic in, without mentioning the 14th: this was an omission on the writer’s part.

The reader is admirably correct about Incorporation-Doctrine centralization. 

Not even conservative constitutional originalists are willing to concede that the 14th Amendment and the attendant Incorporation Doctrine have obliterated the Constitution’s federal scheme, as expressed in the once-impregnable 10th Amendment.

What does this mean?

You know the drill but are always surprised anew by it. Voters pass a law under which a plurality wishes to live in a locality. Along comes a U.S. district judge and voids the law, citing a violation of the 14th’s Equal Protection Clause.

For example: Voters elect to prohibit local government from sanctioning gay marriage. A U.S. district judge voids voter-approved law for violating the 14th’s Equal Protection Clause.

These periodical contretemps around gay marriage, or the legal duty of private property owners to cater these events, are perfectly proper judicial activism. It flows from the 14th Amendment.

If the Bill of Rights was intended to place strict limits on federal power and protect individual and locality from the national government—the 14th Amendment effectively defeated that purpose by placing the power to enforce the Bill of Rights in federal hands, where it was never intended to be.

Put differently, matters previously subject to state jurisdiction have been pulled into the orbit of a judiciary. Yet not even conservative constitutional originalists are willing to cop to this constitutional fait accompli.

The gist of it: Jeffersonian constitutional thought is no longer in the Constitution; its revival unlikely.

A Court System Centralized

For another example of the endemic usurpation of The People, rendering the original Constitutional scheme obsolete, take the work of the generic jury. With his description of the relationship between jury and people, American scholar of liberty Lysander Spooner conjures evocative imagery.

A jury is akin to the “body of the people.” Trial by jury is the closest thing to a trial by the whole country. Yet courts in the nation’s centralized court system, the Supreme Court included, are in the business of harmonizing law across the nation, rather than allowing communities to live under laws they author, as guaranteed by the 10th Amendment to the Constitution.

States’ Rights All But Obliterated 

Like juries, states had been entrusted with the power to beat back the federal government and void unconstitutional federal laws.

States’ rights are “an essential Americanism,” wrote Old Rightist Frank Chodorov. The Founding Fathers as well as the opponents of the Constitution, the Anti-Federalists, agreed on the principle of divided authority as a safeguard to the rights of the individual. 

Duly, Thomas Jefferson and James Madison perfected a certain doctrine in the Virginia and Kentucky Resolutions of 1798. “The Virginia Resolutions,” explains historian Thomas E. Woods, Jr., “spoke of the states’ rights to ‘interpose’ between the federal government and the people of the states; the Kentucky Resolutions used the term nullification—the states, they said, could nullify federal laws that they believed to be unconstitutional.”

“Jefferson,” emphasized Woods, “considered states’ rights a much more important and effective safeguard of people’s liberties than the ‘checks and balances’ among the three branches of the federal government.”

And for good reason. While judicial review was intended to curb Congress and restrain the Executive, in reality, the judicial, legislative and executive unholy federal trinity has simply colluded, over time, in an alliance that has helped abolish the 10th Amendment.

Founding Faith Expunged  

And how well has First Amendment jurisprudence served constitutionalists?

Establishment-clause cases are a confusing and capricious legal penumbra. Sometimes displays of the Hebraic Decalogue or manger scene are taken to constitute the establishment of a state religion. Other times not.

This body of law forever teeters on conflating the injunction against the establishment of a state religion with an injunction against the expression of faith—especially discriminating against the founding faith in taxpayer-supported spaces.

The end result has been the expulsion of religion from the public square and the suppression therein of freedom of religion.

On the topic of religious freedom, Jefferson was prolific, too. The Virginia Statute for Religious Freedom was a crowning achievement for which he wished to be remembered, along with the Declaration of Independence and the founding of the University of Virginia.

Jefferson interpreted “Congress shall make no law respecting the establishment of religion, or prohibiting the exercise thereof”—as confirms by David N. Meyer, author of Jefferson’s Constitutional Thought—to guarantee both “an absolute free exercise of religion and an absolute prohibition of an establishment of religion.”

Yet somehow, the kind of constitutional thought that carries legal sway today prohibits expressions of faith or displays of a civilizing moral code in government-controlled spheres. Given my libertarian view of government’s immoral modus operandi, I find this amusingly apropos. Still, this is not what Jefferson had in mind for early Americans.

Indeed, why would anyone, bar Nancy Pelosi and her party, object to “thou shall not kill” or “thou shall not commit adultery, steal or covet?” The Ten Commandments can hardly be perceived as an instrument for state proselytization.

Nevertheless, the law often takes displays of the Decalogue or the nativity scene on tax-payer funded property as an establishment of a state religion.

“I consider the government of the U.S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercise,” Jefferson expatiated.

He then gets to the soul of the subject: “This results not only from the provision that no law shall be made respecting the establishment, or free exercise of religion but also from the Tenth Amendment, which reserves to the states [or to the people] the powers not delegated to the U.S.”

So, dear reader, if there’s one thing we know for sure, it’s that the Russians didn’t deep-six our republic of private property rights and radical decentralization; we did.

***

Ilana Mercer has been writing a weekly, paleolibertarian column since 1999. She is the author of “Into the Cannibal’s Pot: Lessons for America From Post-Apartheid South Africa (2011) & “The Trump Revolution: The Donald’s Creative Destruction Deconstructed (June, 2016). She’s on Twitter, Facebook, Gab & YouTube

Nullification Is Justice’s Jaws of Life


By ILANA MERCER 

Planning for a show-down, a column of 1,500 Central Americans, largely from Honduras, has been beating a path to the Mexican-American border.

Some report that the column has been halted; others dispute that. Interviewed by Reuters in Mexico, a sojourning mother of seven—what are the chances none is an MS13 gangster?—signaled her intention to proceed to the US, if only to teach President Trump a lesson.

Yes, “Make America Great Again” to you, too, Colindres Ortega.

Organizers and participants in this farce aim, very plainly, to publicly demonstrate that the US doesn’t have borders. Led by anti-American agitators, the procession catalyzed the urgency of action to stop an ongoing invasion. 

Whether it arrives or not, the caravan is a positive bit of theatre. For one thing, the actors are quite correct. The US doesn’t have borders. For another, the caravan vividly exposes the antagonists in this ongoing tragedy: our overlords in DC. All of them.

To narrow the indictment a tad, note the extent to which the Democrats and their news media have avoided mentioning or covering the caravan. At a time when Democrats are fielding populists like Conor Lamb (who won in Pennsylvania) and former rodeo champion Billie Sutton (he hopes to govern South Dakota)—the mess on the border damns them like nothing else.

It’s these villains who’ve agreed to laws that permit anyone—other than white South Africans—to arrive at that border, do their Les Misérables act, claim to face a “credible fear” back home, get a court date, and bolt like so many rabbits, to be seen again only at the voting booth, the welfare office, the DMV and at DACA demonstrations. They’re the malcontents holding up signs that read “America is racist.”

What all the veiled allusions to “catch-and-release loopholes in American immigration law” imply is this: Ostensibly, there’s no way to turn interlopers away once they plonk themselves on the US border, demand a translator and spin some yarn.

So far, President Trump has “signed a proclamation ordering the deployment of the National Guard to the border with Mexico.” This changes nothing. It remains illegal to defend the border by turning these particular trespassers away.

Other than stare these brazen people down, what will the National Guard do? Change diapers, as they did during the 2014 rush on the border?

Flash back more recently to January of 2016, when candidate Trump began alluding to “President Obama’s irresponsible use of executive orders” having paved the way for him, Trump, to also use them freely if he won the presidential race.

“Amen,” I said at that time—provided Trump uses executive power to repeal lots of laws, not make them.

After all, we live under an administrative “Secret State.” Very many, maybe most, of the laws under which Americans labor need repealing. The only laws that should be naturally inviolable are those upholding life, liberty and property, for those are natural rights.

Candidate Trump had gone on to promisingly proclaim that, “The one thing good about executive orders [is that] the new president, if he comes in – boom, first day, first hour, first minute, you can rescind that.”

All of which speaks to a broader truth: There is nothing sacrosanct about every law imposed by an overweening national government and its unelected agencies. “At the federal level alone,” the number of laws totaled 160,000 pages,” in 2012. By broadcaster John Stossel’s estimation, “Government adds 80,000 pages of rules and regulations every year.” (How long is the Constitution?) According to the Heritage Foundation, “Congress continues to criminalize at an average rate of one new crime for every week of every year.”

America has become a nation of thousands-upon-thousands of arbitrary laws; whose effect is to criminalize naturally licit conduct. Rather than uphold individual rights, most positive law (namely statutory, man-made law) regulates or criminalizes the business of life.

Laws passed in violation of the natural rights of the people, and by altogether skirting the will of the people’s representatives, need to be nullified. Like the laws making it illegal to repel unwanted invaders, who intend to wage welfare on their hosts, and sometimes worse.

Executive orders, President Trump has issued galore. But relatively few pertain to stopping the invasion ongoing. Needed are executive orders that sunder laws dictating that invaders-cum-“refugees” are to be processed rather than expelled.

Let the president suspend the scam that is the United States Refugee Act. Subject to review, yada-yada-yada. Let the president untether the US government from the Trojan Horse and shake-down scheme that is the United Nations Convention relating to the Status of Refugees. Again, subject to blah-blah-blah.

In working on behalf of refugees worldwide, private American charities dwarf the US government. Private non-profits do what they do unobtrusively, ethically, with minimum overheads and personnel. They don’t rely on confiscatory taxes! Most importantly, charities disburse aid and empower refugees without entering into agreements and entanglements with supranational bureaucracies, a thing that serves to indenture and endanger Americans, stateside.

In this post-constitutional era, nullification of unjust laws through executive orders is what’s necessary. It’s inevitable that correctives to the corrosive, self-sustaining, intractable actions of the state take the shape of action and reaction, force and counterforce in the service of liberty.

In this unfortunate but inescapable scheme of things, nullification is justice’s Jaws of Life, properly considered a political power tool to pry the people free of bad laws.

***

Ilana Mercer has been writing a weekly, paleolibertarian column since 1999. She is the author of “Into the Cannibal’s Pot: Lessons for America From Post-Apartheid South Africa (2011) & “The Trump Revolution: The Donald’s Creative Destruction Deconstructed” (June, 2016). She’s on Twitter, Facebook, Gab & YouTube

The Case for Natural Law


By Andy Duncan, Vice-Chairman of Mises UK

I’ve long been a natural law guy, in the sense that nature has endowed all of us (whether this is via a God, some Gods, or just plain old Darwinian evolution) with a basic set of behaviours we know to be good (e.g. do not steal other people’s property, do not murder other people, let other people be free so long as they’re not interfering with you directly, etc), often codified into early religions as ‘commandments’ of one sort or another, as human civilisation emerged from the Stone Age.

These ‘natural laws’ may purely be intra-tribal in that raw native state of a stone-age living human, and may not apply to extra-tribal people (such as those ugly Neanderthals on the other side of the mountain). However, the spread of society and civilisation is in my view the spread of these natural laws extra-tribally until all are governed by them. Whereas the destruction of society and civilisation is the opposite, particularly the actions of those people in the last 10,000 years often collectively known as ‘the state’, to steal other people’s stuff, murder other people, remove the freedoms of other people, etcetera, etcetera. I think this appeal of ‘natural law’, as codified by people such as St. Thomas Aquinas, has led to a particular appeal of Catholicism to many Austrians, via this link to Aquinas, and his own direct link back to Aristotle.

It fails to help, alas, that the current Pope is a communist. I would much prefer that Pope Benedict XVI was still the supreme Pontiff myself, but I still think that there is a natural affinity between Catholicism and Austrian Economics, and that it’s far from being a coincidence that Austrian Economics did finally arise in Austria, a Catholic country, even despite people such as Ludwig von Mises, Murray Rothbard, and Israel Kirzner (amongst others) being Jewish.

For Judaism seems to possess a strong basis in natural law itself, and of course via the Old Testament forms the basis of later Christianity and Catholicism.

However, I do think you can still believe in natural law without necessarily being religious. All sorts of higher-order animal societies (such as wolves, lions, and so on) are codified by certain behavioural patterns that all will generally obey, except in the most unusual circumstances. So, it is the ‘natural law’ of a pack of wolves to eat a human who strays too close, without breaking any ‘moral’ code of wolves. But if one wolf offers submission to another wolf at the end of a fight for male reproductive supremacy, then generally, the superior winning wolf will not kill the defeated and now submissive inferior wolf.

Even a pure believer in ‘The Selfish Gene’ can come to human natural law via simply the mechanism of genetic natural selection.

The problem for human society comes of course, when that group known as the state begins to impose fiat, positivist, or state laws, for their own loosely-connected group benefit, at the expense of all others under their military control. That is when aggression and hatred grows within and between different human groups. Whether we codify natural law into something such as the ‘NAP’ (non-aggression principle) or some other ‘libertarian’ philosophy, at the heart of our own march to a world of civilisation, peace, freedom, and property, should we accept that what we are trying to create is a natural law society? Or do we believe in game theory, the might of power, or some other human-societal-organising system?

(I have placed this article within Swithun Dobson’s new ‘Mises UK Forum’ and I would be interested to hear any of your thoughts on this within that forum. You can get a registered login on our new forum by visiting http://misesforum.com/.)

The Uniqueness of Western Law


By Richard Storey

“When accordingly it is inquired, whence is evil, it must first be inquired, what is evil, which is nothing else than corruption, either of the measure, or the form, or the order, that belong to nature.” (Augustine)

The study of Western Civilization has been all but eradicated.  This was no accident but, rather, an aggressive policy of leftist academe which has used exclusionary tactics to dominate and pervert the culture and purpose of our universities since the 1960s and 70s.[1]  But, for us students, driven underground, Western history is the greatest treasure trove of almost every faculty.  Not least of these is natural law.  Read more

On Discrimination


ON DISCRIMINATION
By Christian Robitaille

The following is a translation of a speech delivered in French on the 5th August 2017 at the occasion of the 2nd edition of the Montreal Free Market Seminar.

Today, I will talk about a phenomenon that is increasingly decried as unfair or evil by Canada’s and Québec’s mass media and by the most vocal leftists of our society. I will talk about discrimination. However, I will not talk about it in a conventional way, i.e., by decrying as unjust any form of discrimination whatsoever and by demanding that the State intervenes in order to reduce or eliminate it. Rather, I will take advantage of the fact that I am speaking in front of a civilised audience to talk about the true nature of discrimination and to show that it is, in and of itself, a useless concept insofar as one seeks to find in it the ultimate criterion of injustice. Read more

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