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A pro-liberty approach to lawmaking

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A pro-liberty approach to lawmaking Empty A pro-liberty approach to lawmaking

Post  Anti Federalist on Sun Jan 26, 2014 2:05 pm

A pro-liberty approach to lawmaking


The candid truth is that a great many — if not most — existing laws and proposed pieces of legislation are incompatible with a free society.

How can we know if a law promotes liberty or enhances the power of the state? What standard must a law meet to satisfy the freedom-oriented crowd? Indeed, advocates of a free society should be the last, most apprehensive individuals to convince that a new law is justified. As such, the following point should be emphasized:

With any piece of legislation, always begin with a default position of “no.”

To weed out the unnecessary, unsustainable, unconstitutional, unjust, unreadable laws, I propose that ALL of the following statements should be true of a proposal before a pro-liberty individual considers endorsing it:

1. The proposal is authorized by the constitution.

A government must never be allowed to become lawless and without limitations. It is imperative that all government activities be authorized by its governing document: the constitution. The government should be restrained from doing anything unless a specific authorizing statement exists in the constitution granting that power. To gain a new power, an intensive process must be followed to amend the constitution.

The dangers of a government with no boundaries on power should be obvious. The constitution is designed to keep government powers limited to a numerable list of actions that have been granted to it by the proper channels.

It should be noted that it is not necessary to endorse each piece of legislation that is constitutional. A law can be both constitutional and oppressive. But when a law falls outside the constitution, it should be opposed every time, without hesitation. Allowing the government to decide its own limitations is an invitation for authoritarianism. No matter how benevolent the proposal, the government should never be allowed to act without following the proper procedure, every time. The consequence of straying from the constitution — even for agreeable reasons — is the establishment of a lawless and unhinged government.

2. The proposal respects personal liberties.

A freedom-based society exalts the individual rights of life, liberty, and property. Life and liberty need little explanation. However, the right to own private property is the origin of a great many derivative rights, such as the private ownership of firearms, privacy, freedom from unwarranted searches, freedom from government quartering, freedom to possess controversial literature, freedom to possess plants and substances, the freedom to treat your body how you please, and the freedom to freely exchange owned goods.

Things that are privately owned – land, buildings, and self – remain controlled at the owner’s discretion and outside the jurisdiction of government. Property ownership ensures that the owner does not have to ask permission to utilize the property in a manner that suits them. Modifying, consuming, utilizing, and transferring ownership of that property are all activities that fall outside the purview of government. A government that respects private property does not dictate what the owner may personally grow, build, consume, ingest, inhale, manufacture, buy, sell, or possess on their own property.

When laws do exist in a free society, they are based on violations of the Non-Aggression Principle (NAP). Free people maintain a wide latitude of liberty to act as they please, so long as their actions do not constitute an initiation of force on their neighbors. Such violations could be categorized as acts of violence (assault, rape, murder), property crimes (theft, trespassing, vandalism), contract violations, and fraud.

Curtailments of liberty are usually created under the guise of creating security, comfort, and order. Proponents of these measures will try to hide or downplay the damaging effects of their ideas on civil liberties. Some have rationalized the scuttling of individual rights as necessary for the benefit of the collective. Others literally view individual freedoms and choices as threatening. We should not fall for these deceptions.

Sacrificing liberty is always a mistake. If one claims to be a supporter of a freedom-based society, no legislation will be considered if it restricts personal choice to act within the boundaries of non-aggression.

3. The proposal is affordable.

Government’s lofty promises to contemporary audiences often place liabilities on future generations. Politicians then resort to confiscating wealth, borrowing money at interest, inflating the currency, or other destructive measures to address the financial dilemma which it created.

Not only should promises from politicians be viewed with a high degree of skepticism, it is imperative that government be forced to stay within a budget to prevent long term generational theft. No proposal should be supported unless it has a clear and immediate source of funding. Spiraling levels of debt are absolutely unacceptable.

4. The proposal is necessary.

When authoritarians intend to seize a new power, they often manufacture a crisis in order to convince the public that the government must act to thwart a disaster. The alleged problem is hyped up and a solution is presented that will empower the government. These crises should be intensely analyzed to see if the premises are indeed correct, and if the solution is truly rational or necessary.

More often than not, the alleged problem could be dealt with – usually more effectively – using voluntary means that do not involve expanding the government or giving it more authority. A freedom-based solution should always be preferred over mandated government force. Be very skeptical of whether government solutions are actually necessary.

5. The proposal’s benefits outweigh its consequences.

Assuming that the proposal passes the other tests, its benefits should be weighed against its consequences. Sometimes well-intentioned ideas create bigger problems than they fix. The public often falls for “feel-good” ideas that do nothing except throw away money.

Does the policy actually accomplish what lawmakers say it will accomplish? This should be intensely scrutinized, as politicians do not have a good track record of making realistic promises. Does the policy ignore the root cause of the problem? Will this same problem persist, despite this legislation?

Does the initiative make the problematic situation better or worse? Will there be additional consequences that are not being advertised by its political champions? Will it create black markets, economic bubbles, or cause market disturbances? Will the law that promises safety actually make people less safe?

6. The proposal does not exempt certain groups or play favorites.

In its proper form, government should exist as an impartial referee, settling disputes between parties and dealing with violations of individual rights. Laws should be applied evenly and not dependent upon demographic divisions.

Justice should be blind with respect to things such as race, sex, religion, age, wealth, or official title. Laws should not provide exemptions or special treatment to police officers, politicians, minorities, or other so-called “protected” classes. No one should receive any more protection or representation than his neighbor under a fair legal system. Similarly, no group should be punished more fiercely than another.

A freedom-compatible government would not exist to prop up certain corporations — or groups of people — at the expense of others. Governments notoriously play favorites in business and offer unearned benefits to certain demographics in order to reward donors, influence votes, encourage dependency, and preserve power. Such social engineering is unjust and wrong.

Every effort should be made to maintain an unbiased playing field, free from partiality in government.

7. The proposal was created on the most local level of government possible.

A police state thrives on concentrated, top-down authority. There has been a long history of efforts to gather power at the federal level in the United States, despite a noble effort by the nation’s founders to prevent a centralized national government. But before the ink on the constitution had even dried, authoritarians were already subverting the safeguards and pushing for more government power.

As designed, the American federal government was to have very limited power over domestic issues. Its primary objectives were focused on diplomacy, national defense, raising armies and a navy, currency, foreign trade, borders, postal services, immigration, and international issues. The states maintained the authority to define criminal behavior and were left to deal with a wide range of other domestic issues. The design divided power among many states, avoiding the problems associated with an overbearing national government.

States had the latitude to experiment with how to create the best balance of laws. Citizens had more of a voice in local governments, and resultant laws would be more in tune with the represented populations to a degree that could never be attained by a distant national government. If a policy worked well in one state, other states were free to copy it, but were under no obligation to all live under the same centralized, one-size-fits-all laws. In the event of a state becoming oppressive, citizens had a last resort of emigrating to another state that would be more respecting of individual rights.

The design was only as effective as the people’s willingness and ability to uphold it, which has proven disappointing. As power has amassed under the federal government, fewer and fewer options remain for citizens wishing to avoid the crushing policies of Washington, D.C.

As such, to stop the advance of a police state, all attempts to centralize power at the national level should be resisted. Policies should only be considered at the most local level of government possible. As the U.S. Congress pushes various ideas to micromanage the country, ask why the policies couldn’t be accomplished at the state level. Dividing power in this way is not only advisable to prevent tyranny, the 10th Amendment demands it.

8. The proposed punishment fits the crime.

Authoritarian systems are rife with laws used to punish or imprison people for acting within their own rights. These nanny/police states ignore the Non-Aggression Principle and regulate all manners of non-violent, victimless crimes, mostly inspired in the name of safety and order. Statists dictate what a person may do on their own private property and with their own bodies. Prohibitions on arbitrary items – tools, plants, substances, firearms, blades, objects – exist to control and disarm the public.

A freedom-based society does not punish people who do not initiate force or victimize others. Society is not served by imprisoning non-violent people who have not attempted to victimize anyone. Freedom advocates should abide by the axiom, “No victim, no crime.”

Before supporting a given policy, one should ask whether the law so essential to society that the individual would use it to punish a violator that they care about, such as a child, parent, or spouse. Many people cannot recognize injustice unless it happens to their own loved ones, and this test would necessarily limit the number of government interventions in the lives of private citizens.

When a crime does have a victim, it is important to avoid unreasonable punishments in the pursuance of justice. Some ill-conceived ideas, such as mandatory sentencing provisions, make it possible for a petty shoplifting conviction to be turned into a life sentence in prison under the right conditions. These miscarriages of justice must be guarded against and removed from codified law.

A final consideration should be on whether imprisonment is the only rational consequence that a society can pursue after a person breaks the law. Restitution may make more sense than imprisonment in many cases. Perhaps a thief could learn from his mistake by restoring his victim several times over, versus sitting in a cage with hardened criminals for a period of years. This possibility should be explored.

9. The proposal is easily read and commonly understood.

People cannot be free when the laws which they are expected to obey are innumerable and written in language that is not commonly understood. There are currently so many federal laws on the books that teams of law professors have led unsuccessful attempts to count them all. Besides the daunting number of laws, government uses complicated legalese to make it impossible to understand the statutes without professional legal advice, making it expensive to understand the law. Even then, laws are so complex that there is no guarantee that a law is being accurately understood, or that the relevant “case law” has been applied. This convoluted web of legal jargon makes it easy for the government to control the public, and selectively punish those who speak out. As retired law professor John Baker put it, “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime. That is not an exaggeration.”

Hence, no law can be acceptable to a free society unless it is easy to read and written in a language that is clear, concise, and commonly understood. Laws that are hundreds (or thousands) of pages long containing vague and complicated language should be opposed immediately on principle. There should be no reason that any literate person should have a problem understanding the exact nature of the laws he is expected to follow.

10. The proposal is compatible with a free and voluntary society.

An ideal society is based on peace, freedom, and voluntarism. This is accomplished through adherence to property rights, fair laws, and free markets. At all stages of lawmaking, and in every aspect of government, people should be scrutinizing whether each government policy is compatible with a free and voluntary society.

Is the policy compulsory? Is it backed by government force? Is there a possibility that non-violent, harmless people will be punished for not complying? Does it take property from one party and hand it away unjustly to another? Are detractors pointing out valid infringements of personal liberties?
Anti Federalist
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