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Making Freedom: A Proposal

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It is received wisdom among Objectivists (and many other freedom activists) that the way to deal with America's freedom deficit is, in essence, through persuasion. Persuade enough Americans to be Objectivists or near Objectivists or even libertarians and America will once again be a free country.

Putting aside the questionable proposition that America was ever a free country, I'm of the view that persuasion has no reasonable chance of changing enough minds to make a difference. Two things have led me to this conclusion. The first is the failure of Objectivists and others to change the direction of the country. The second is what I saw when I tried to persuade.

1943 could be regarded as a watershed year, the year "The Fountainhead" was published and, arguably, modern libertarianism got its start. 75 years later, the federal government spends 44% more per capita (after adjusting for inflation) than it did then. The scope of federal regulation has increased dramatically and federal rights violations are now pervasive. Libertarianism has barely a toehold in American politics and thought, and the creatures in Washington who call themselves libertarian corrupt the term. There are plenty of Ayn Rand fans, including some of those same creatures, but few people have truly adopted her ideas. There's little point in even calling oneself an Objectivist -- most people haven't a clue what it means and the rest mostly have it wrong.

In short, the modern attempt at persuading people to support freedom has been an abject failure.

The conventional wisdom is to blame the messenger, to suppose that the American public would be all for freedom if only its proponents were better at explaining it. I have to call BS on this notion; the quantity and quality of libertarian and Objectivist propaganda, not to mention that reality is on the side of that propaganda, make it impossible to believe that merely improving either quantity or quality would make a difference.

Besides, my personal experience with promoting liberty is completely at odds with that explanation.

Ask an American if they want the government off their backs and you're likely to get a Hell Yes in response. They're all for freedom and being able to live their lives unmolested by the government. Dig deeper, though, and you'll find that most Americans really want "freedom for me, but not for thee". The government should get off the little guy's back but closely regulate business. Or, the government should get out of the businessman's way, but regulate private behavior. However divergent the particulars, the typical American is like every other one in that he sees the government as the means of imposing his will on others. You see the same phenomenon when it comes to government spending. One group says the government should support social programs, the other business, but both are united in the view that the government should take money from those who have it and give it to some preferred group.

In short, liberal, conservative, or "independent", most Americans see the government as a means of serving private ends, rather than public necessities.  Those are grudgingly served.  Ask any judge or cop.

This didn't spring up overnight. I trace it back to 1824, when the Supreme Court decided that the courts were not to take into account the intentions of the Founders when interpreting the Constitution to determine the extent of government powers. With no principles to limit the federal government's power, it was only a matter of time before those powers became effectively unlimited. Progressivism, around the beginning of the 20th Century, demanded and got the extension of those powers, and events since then have turned the government into Leviathan.

The effect of the New Deal was to cement into the American psyche the idea that the government was the cure to all ills. Government was no longer to be limited, solving only particular, public problems, it was to solve all problems, public and private. Compulsory education, by precept and example, reinforced this notion. Entitlements went from being the province of those who wielded power to something everyone expected -- and then needed.

Freedom and government power are incompatible. A person who believes in freedom and government power must necessarily distort his thinking in order to embrace the contradiction. He must evade the fact that freedom includes the freedom to fail and the freedom to suffer and even die; he must evade the fact that every government action by its nature involves a restriction on others and, when not limited to the absolutely necessary, is necessarily an infringement of freedom.

But it doesn't stop there. Any person who accepts what he knows, deep down, to be evil, must necessarily condemn himself. And, to continue as he is, he must necessarily hide from himself both the evil and the condemnation. And all of this is aided and abetted by others around him, by the structures of society and, above all, by compulsory education. (Yes, I think it cemented America's downfall. But that's another topic.)

The result is a nation of people who literally cannot think rationally about liberty. To do so, they would have to go against everything they've been taught, from infancy (share your toys!) on. They would have to confront the ways that they have used, or contemplated using, the government immorally. They would have to confront the fact that they do not know how to live free.

And this is exactly what I discovered when I tried to persuade people of the rightness of freedom. The closer I got to the central necessity of freedom -- individual responsibility -- the further their counterarguments veered into the irrelevant and the just plain irrational.

Americans have, deep down, rejected the idea that a person can stand alone on his own two feet. Sure, they have heroes, but heroes are them, not us, they are not ordinary people living ordinary lives. Americans do not want freedom; it frightens them. Arguing for freedom is, to the typical American, like arguing for stepping off a cliff -- because they have forgotten their wings, they know that doing so can only end in disaster.

This is why persuasion has failed. As the saying goes, you can't reason a person out of what he wasn't reasoned into in the first place. Only two things are likely to change a mind so damaged: therapy and bitter experience. There aren't enough therapists to go around, so America -- and we -- will have to wait for bitter experience to teach it to value liberty.

Before deciding what to do instead, one really needs to sit back and look at one's goals. If you're really, truly committed to getting America on the road to liberty, I might suggest joining the government and working for its expansion. Well, not really. Such a course of action might hasten the day that Americans get tired of their unfreedom, but it would be profoundly corrosive to you. Another approach would be to become a revolutionary and try to bring down the government, but it's waaaay to soon for that to be effective, and it's a good way to get pointlessly dead.

It becomes easier if one's goal is not to save America, but instead to live as free a life as possible. In that case, the idea would be to form a community somewhere that is free at least within its borders. That particular idea has been looked at from many directions and I won't rehash all the things that didn't or can't work.

One thing that might work is living on the oceans. You'd have a large floating object where people could live and carry out a reasonable life. This has been looked into, but the only real project I know of is the one by The Seasteading Institute. But they're suffering this political nonsense that makes even libertarianism look reasonable, and they've wimped out on the population and the independence that a viable free community would need. Still, another project for seagoing life, one more philosophically sound and large enough to be worthwhile, is a possibility.

That said, my own proposal also involves a floating object, but 24 kilometers up. I've given it some thought and I've seen no show stoppers, but it's still a rough idea, one I hope to flesh out if I can get enough people interested in talking about it.

My proposal would support up to 10,000 people (in families) living in an enclosed habitat with 100 square meters per person, for living space, food production, recreation, and so on. With that many people, the city (well, town might be more accurate) would have a real economy, capable of diversity and a little economic slack. Also plenty of people with whom to have a social life. The government would be designed from the ground up, grounded in Objectivist principles.

Floating that high and moving with the wind, the city wouldn't be under any government's jurisdiction and wouldn't even be over any country for very long. The city would do its best to maintain friendly relationships with other countries and would be economically integreted with the rest of the world. However, it would also be able to self-sustain for long periods, to avoid being blackmailed into giving up its freedom.

I completely expect a host of "No way, can't be done" for a whole bunch of reasons -- it's what I got when I, ahem, floated the idea to some people I used to know. I've gone much deeper into this than I've written, but before I say more, I'd like to see what others have to say.

BTW, I'm not wedded to this particular idea. If it proves impracticable, there's always the seagoing approach, and a few less likely possibilities. But I'm serious about getting out of America; unlike most of us, I have -- courtesy of the federal government -- no life to lose and every reason to want to be elsewhere.
 

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3 hours ago, DonAthos said:

LOL, while you were working on this, I was working on this. :)

I will try to respond to this soon(ish), but it's interesting to me to have these two perspectives emerge at about the same time!

Part of my reason for being here was to present this idea, sooner or later.  But the discussion over in the "Fun" discussion made it the right time to bring it up.  So I took a few days off from posting so that I could write.... I'm guessing that that discussion similarly motivated you, so it wasn't really coincidence.
 

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1 hour ago, CartsBeforeHorses said:

Sounds great, where will the money come from?

My SWAG is that a project like this could run a billion.  Divide that by 10,000 people and it's 100,000 per person.  The price of a cheap house these days.  More realistically, I'd want many families, not just individuals -- societies need children -- so it'd be more like 200,000 per family.  Still around the price of a house.  People buy houses.

 

 

 

So one goal of the project would be to make it so appealing, from a freedom standpoint as well as a quality of life standpoint, that people will want to buy in. Get enough pre-construction buy-in and financing becomes a possibility.

 

The immediate problem isn't financing, it's getting enough people, with the right mix of skills, to flesh out the idea.  For example, I know enough basic physics to do some order of magnitude estimates that say that this should be possible, but it would take someone with an engineering background to say whether the idea is really workable.
 

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6 minutes ago, Invictus2017 said:

So one goal of the project would be to make it so appealing, from a freedom standpoint as well as a quality of life standpoint, that people will want to buy in.

I personally would only move to such a place if I absolutely had to, if society down on earth devolved to the point where it was unlivable.

Why? Well I have family and friends down here. Doctors I visit down here. Places I like to go, such as Garden of the Gods that are gorgeous natural wonders. I have a car I like to drive. I have a professional career. Living up in the air would be a tremendous change and I'd have to give up all of that.

For what? What are the benefits? Can you list out all of the benefits of living in a place like that, which don't presently exist in the United States?

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8 minutes ago, CartsBeforeHorses said:

Why? Well I have family and friends down here. Doctors I visit down here. Places I like to go, such as Garden of the Gods that are gorgeous natural wonders. I have a car I like to drive. I have a professional career. Living up in the air would be a tremendous change and I'd have to give up all of that.

I did say that the city would not be isolated.  You'd be able to book transport to any country that would have you.  That said, you certainly would be giving things up, just as any emigrant gives things up.
 

9 minutes ago, CartsBeforeHorses said:

For what? What are the benefits? Can you list out all of the benefits of living in a place like that, which don't presently exist in the United States?

You get to keep half your income? No government telling you what you can and cannot do in your profession?  No TSA probing your intimate parts? If you are an atmospheric scientist, this might be a wonderful place to be. There are other professions that might want such a perch, too.

 

But seriously, it'd be up to you to decide whether the benefits outweigh the costs, and that only after there's enough of the project design that you could sensibly make the necessary evaluations.  
 

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3 minutes ago, Invictus2017 said:

I did say that the city would not be isolated.  You'd be able to book transport to any country that would have you.  That said, you certainly would be giving things up, just as any emigrant gives things up.

I just don't know if the things that I would be giving up outweigh the things that I would gain.

3 minutes ago, Invictus2017 said:

You get to keep half your income? No government telling you what you can and cannot do in your profession?  No TSA probing your intimate parts?

I'd get to keep half my income, but I'd easily spend a lot of money getting there in the first place. Plus money to go back down to earth to visit. Plus the cost of living in the sky would be tremendously large. You'd have to pay much higher transportation costs for goods that could not be produced there. I just don't know if this outweighs the taxes, I don't think it does.

Accounting is a self-regulated profession for the most part. The removal of government regulations would not make my job substantially any better.

The TSA would still get its chance at the times that I'd want to go back to America.

The benefits you list are real, don't get me wrong, but to me I'm not sold on joining this project just yet. Of course if you're right, then America is going to fall sometime within my lifetime. At that point something like this becomes more attractive to someone like me.

3 minutes ago, Invictus2017 said:

But seriously, it'd be up to you to decide whether the benefits outweigh the costs, and that only after there's enough of the project design that you could sensibly make the necessary evaluations.

Well from what I've heard so far it sounds like a good idea. But to market it, you'll have to find people who are a lot sicker of their home countries than I am.

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16 minutes ago, CartsBeforeHorses said:

I just don't know if the things that I would be giving up outweigh the things that I would gain.

Of course not.  But everyone's different.  Some people would jump at the chance to get away from their relatives. :)

18 minutes ago, CartsBeforeHorses said:

I'd get to keep half my income, but I'd easily spend a lot of money getting there in the first place.

But, if I'm right, about the same amount of money as moving across the country.  People do that all the time, given a more attractive destination.
 


 

22 minutes ago, CartsBeforeHorses said:

Plus money to go back down to earth to visit. Plus the cost of living in the sky would be tremendously large. You'd have to pay much higher transportation costs for goods that could not be produced there.

I think you overestimate the costs.  Most of the cost of living in the sky would be construction costs.  As for transport, you'd use the same technology to move people as holds the city up, which should be a lot cheaper than a jet.  Much less fuel, for one thing.


 

26 minutes ago, CartsBeforeHorses said:

Well from what I've heard so far it sounds like a good idea. But to market it, you'll have to find people who are a lot sicker of their home countries than I am.

Or find some competitive advantage.  A place to do genetic research unfettered by government regulations, perhaps?

 

The bottom line is that this project won't do for everyone.  Or even a lot of people.  But all it needs to do is find enough of the right people.....
 

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The most important idea underlying the original post is this:

The government would be designed from the ground up, grounded in Objectivist principles.

I’ll name this The Central Political Goal, because it is important enough to have a name. There is an obvious connection between that desideratum, and the position that

the Supreme Court decided that the courts were not to take into account the intentions of the Founders when interpreting the Constitution to determine the extent of government powers. With no principles to limit the federal government's power, it was only a matter of time before those powers became effectively unlimited.

The floating-community proposal appears to be aimed at another goal: “to live as free a life as possible”. From the Objectivist perspective, the Ultimate Goal is to exist qua man. The goal of living as free a life as possible is necessary to reach the Ultimate Goal, and the aforementioned Central Political Goal is the method by which we might be able to live as free a life as possible.

The reason why we don’t live as free a life as possible is not that we don’t have a floating city, gulch or asteroid somewhere safe from external interference: it is that we cannot objectively and convincingly articulate the nature of the Central Political Goal. Although we can say “we want to live as freely as possible, where government respects the rights of individuals”, we are not so good at saying what exactly that means. Very specifically, we cannot flesh out the notion of “objective law”. If we cannot do that amongst ourselves, we cannot reasonably hope to persuade others to embrace our general world view.

The premise (if anyone actually holds it) that the US Constitution is exactly the foundational document that would be written by a set of Objectivist Framers is untenable. There are myriad flaws which could easily be repaired. If we cannot now identify the flaws and say exactly what that foundational document should say, and what the specific laws and government institutions should be, I don’t see how we can expect the general public to move in our direction.

The notion (which is not the sole intellectual property of Objectivism) that a nation should be governed by law and not men requires that we say exactly what is forbidden, and what the consequences are of doing a forbidden act. Objective law is founded on exact statements of the forbidden, not subjective conjectures about the mental states of a group of earlier minds – the “intentions” of the Framers. Referring to Gibbons v. Ogden (I assume that is the relevant 1824 ruling), the court was absolutely correct that the Constitution does not contain any clause resembling a rule requiring strict construction. This is a mistake which should be remedied: how exactly should it be remedied? In what way is the Commerce Clause, as worded, not a license for the federal government to completely run interstate and international business? What was the intent of the Commerce Clause? How do we objectively establish that intent? How do we objectively codify that intent so that rights are protected? If we can’t answer these questions, we cannot expect to persuade others to adopt our viewpoint. It is not sufficient to adamantly insist on the end goal, we also have reveal the actual path.

By way of sales pitch, Tara Smith has moved the enterprise in the right general direction, but as she herself recognizes in her objective law book, her work is only the very start of fleshing out the notion of an Objectivist theory of law. Politics is about the very short term, and an objective philosophy of law is about the very long term. Attention needs to be shifted from the politics of the week, to a philosophy of law befitting the nature of man as rational animal. Probably not everybody need to engage in this shift, but many more people do.

I only address the political aspects of the problem and proposal. If you want causal explanations for political problems, you have to start with epistemology. How did we get to the current political situation? It’s because people decided to do things (voting, primarily) that had this consequence. Why did people decide to do those things? Because they have sub-optimal reasoning processes – a broken epistemology. How do we fix the problem? Fix the epistemology.

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1 hour ago, DavidOdden said:

The floating-community proposal appears to be aimed at another goal: “to live as free a life as possible”. From the Objectivist perspective, the Ultimate Goal is to exist qua man. The goal of living as free a life as possible is necessary to reach the Ultimate Goal, and the aforementioned Central Political Goal is the method by which we might be able to live as free a life as possible.

I wouldn't put it quite so formally, but yes.

1 hour ago, DavidOdden said:

The reason why we don’t live as free a life as possible is not that we don’t have a floating city, gulch or asteroid somewhere safe from external interference: it is that we cannot objectively and convincingly articulate the nature of the Central Political Goal. Although we can say “we want to live as freely as possible, where government respects the rights of individuals”, we are not so good at saying what exactly that means. Very specifically, we cannot flesh out the notion of “objective law”. If we cannot do that amongst ourselves, we cannot reasonably hope to persuade others to embrace our general world view.

Actually, both the place and the political structure are necessary.  But clearly, the place is useless without the structure, so the structure must be defined as part of the project.  And, I agree (if I take your meaning) that, so far, Objectivists have shed more heat than light on the topic of how to put together a free society.

1 hour ago, DavidOdden said:

The premise (if anyone actually holds it) that the US Constitution is exactly the foundational document that would be written by a set of Objectivist Framers is untenable.

Given the Objectivist failure to flesh out its politics, the notion that the Constitution, even a Constitution v 2.0, or any other document for that matter, is the proper foundational document is untenable..  We need to settle down and deal with these issues, not just talk around them.  Then, and only then, can we write the foundational document.
 

1 hour ago, DavidOdden said:

Objective law is founded on exact statements of the forbidden, not subjective conjectures about the mental states of a group of earlier minds – the “intentions” of the Framers.

Well, in an ideal world, the Framers would have left us with a detailed explanation of what their intent was.  In the real world, we have to make to do with their published debates.  That's not ideal, to say the least.  It's also irrelevant to my immediate purposes, as I would expect to be writing a new foundational document from the ground up.  The Constitution would probably serve mostly as a bad example.....
 

1 hour ago, DavidOdden said:

Referring to Gibbons v. Ogden (I assume that is the relevant 1824 ruling), the court was absolutely correct that the Constitution does not contain any clause resembling a rule requiring strict construction.

Yes, Gibbons.  Indeed, the Constitution really says nothing about how it should be interpreted.  Even so, I fault the Supreme Court for abdicating all principled analysis. Where the Founders failed to provide the proper principles, the courts could have gone back to first principles -- individual rights, limited government -- to derive them.  The Court's decision essentially left the interpretation of the Constitution to the political branches, and that was guaranteed to result in disaster.
 

1 hour ago, DavidOdden said:

This is a mistake which should be remedied: how exactly should it be remedied?

The obvious solution for any proposed constitution would be for it to explicitly state what body of principles are to be used to interpret it.

1 hour ago, DavidOdden said:

In what way is the Commerce Clause, as worded, not a license for the federal government to completely run interstate and international business? What was the intent of the Commerce Clause? How do we objectively establish that intent? How do we objectively codify that intent so that rights are protected? If we can’t answer these questions, we cannot expect to persuade others to adopt our viewpoint. It is not sufficient to adamantly insist on the end goal, we also have reveal the actual path.

Actually, one would have to ask first:  Do we need something like a Commerce Clause and, if so, why?  Then, and only then -- and assuming there's a Yes in there -- would it be worthwhile to answer the questions you pose. 
 

1 hour ago, DavidOdden said:

Attention needs to be shifted from the politics of the week, to a philosophy of law befitting the nature of man as rational animal. Probably not everybody need to engage in this shift, but many more people do.

I've been very carefully staying out of the Trump discussion. :)

And, yes, we definitely do need to think about the legal system.  There are all sorts of problems with the American system that need fixing, and that need to be carefully avoided in any Objectivist political system.  E.g., there must be nothing like a guilty plea, and prosecutorial "discretion" must be sharply limited.  (Why?  As the Founders knew, a judicial system that does not involve the public will go awry. Both of these things remove the public from the legal process. Also prosecutorial discretion as implemented is entirely subjective.)

1 hour ago, DavidOdden said:

Fix the epistemology.

Indeed.

To my mind, a critical part of the project is a rewriting from the ground up of Objectivism, in a clear, non-polemic, and well organized way. There will always be points of unclarity and dispute, but those need to be outside the mainline reasoning.  This rewriting needs to cover everything except Esthetics, because all of the other parts are critical to putting together a proper government.

 

(I'd love to set up a wiki somewhere, structured something like Kelley's "The Logical Structure of Objectivism", but in greater detail and with clearer reasoning.  The idea would be one proposition per page.  The contents would, of course, reference official Objectivism, but the main text would be written primarily for precision and clarity.  Any thoughts as to where to host such a thing?)

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Let’s go back to your initial premise, that persuasion has no reasonable chance of changing enough minds to make a difference. You say this because you find that “the quantity and quality of libertarian and Objectivist propaganda… make it impossible to believe that merely improving either quantity or quality would make a difference”. I particularly disagree with that assumption that the quality of “propaganda” is sufficient. I claim that it is not deep enough, and not sufficiently disseminated. So, rather than trying to develop a gulch that we can retreat to, we should focus on fleshing out the argument for Objectivism.

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Given the Objectivist failure to flesh out its politics, the notion that the Constitution, even a Constitution v 2.0, or any other document for that matter, is the proper foundational document is untenable..  We need to settle down and deal with these issues, not just talk around them.  Then, and only then, can we write the foundational document.

I don’t think I understand what you’re saying. In particular, how do we “settle down and deal with these issues, not just talk around them”. Which issues do we need to first deal with, and how do you deal with an issue without talking about it? If you are stating that nobody has yet written the proper foundational document for a rights-respecting government, I agree, and that is my very point. If you’re saying that it can’t be done ever, I entirely disagree, and if you’re saying that it requires writing some other pre-governmental document, I don’t see a reason to believe that, but feel free to persuade me, or explain the nature of that document.

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Actually, one would have to ask first:  Do we need something like a Commerce Clause and, if so, why?

I do not know of any specific discussion of this issue in Objectivism: this is an example of the lacuna in discussion. There are two main issues regarding such a clause. The first is the much broader premise that there should even exist “states”. Since man’s right do not vary as a function of geographical location. State government (even worse, “state’s rights”) is redundant at best, and dangerously arbitrary in actual fact. The exact nature of that thing like the Commerce Clause depends on whether “among the several States” even means anything. I argue that there should be no states, so the clause would not be limited to relations between states.

A proper Commerce Clause empowers the government to establish a system for resolving legal disputes in a regular (law-like) fashion: when I do business with you and we fundamentally disagree – you violate your obligation to me, and won’t make me whole – I have to take you to court. I can’t do that, in a system of limited government, unless the government has the power to hear and decide such cases (and to enforce its decisions). A clause empowering the government to do this is mandatory, when a government is only allowed to do that which is allowed to it. The existing Commerce Clause is what it is because of the premise that each state should set up rules for its citizens, and nationally-uniform rule exist only for relations between states.

That notion of “making conform to rules” is, or was, the primary meaning of “regulating” commerce – having a single system of law. Unfortunately, the secondary meaning “restrict” has overshadowed the meaning “regularize”. The contemporary problem is that Narragansett’s Clause was not later made part of the Constitution: “Congress shall make no law abridging the freedom of production and trade”. Without that clause, the Commerce Clause can be interpreted as allowing the government to restrict business; with it (and, with some better wording of the Commerce Clause) it can be limited to stating that the government has the authority to decide civil disputes, and to say how it will do so.

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Indeed, the Constitution really says nothing about how it should be interpreted.  Even so, I fault the Supreme Court for abdicating all principled analysis.

 

And there is very little by way of Objectivist discussion of how the Constitution should be written so as to guide future interpretation. This is where we need to deepen the "propaganda".

I’m also slightly puzzled at the claim that SCOTUS has abdicated all principled analysis, since virtually all SCOTUS decisions have been principled, though many times the wrong principles have been given priority. Gibbons v. Ogden, which you identified as the point to which you trace back the view of “government as a means of serving private ends”, is one example of a reasonably good and principled decision, so perhaps you are referring generally to other decisions since then.

Gibbons v. Ogden was decided correctly in terms of which side won (state government as a means of serving private ends is not proper, and is prohibited in certain instances). The most important principle upheld by the court is that the function of the court is to interpret the law in its full context: it is the duty of Congress to state what those laws are. When it comes to the matter of restricting commerce between states, such as interstate navigation, “The power to regulate commerce, so far as it extends, is exclusively vested in Congress, and no part of it can be exercised by a State”. Therefore, the statutory (coercive) monopoly granted to Ogden was improper, and the permissive free-trade license to engage in a competitive shipping business granted by the federal government was proper (though whould not have required an act of Congress).

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There are all sorts of problems with the American system that need fixing, and that need to be carefully avoided in any Objectivist political system.  E.g., there must be nothing like a guilty plea, and prosecutorial "discretion" must be sharply limited.  (Why?  As the Founders knew, a judicial system that does not involve the public will go awry. Both of these things remove the public from the legal process. Also prosecutorial discretion as implemented is entirely subjective.)

I do not understand why you think that with an Objectivist government, a person accused of a crime cannot admit to his guilt. Are you saying that even when a person is guilty and know it, the government should still have to mount a full-blown proof of guilt? Would that mean that a person’s admission of guilt is inadmissible?
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in an ideal world, the Framers would have left us with a detailed explanation of what their intent was.



I don’t understand why we should care about the intent of the Framers, or of anyone else. Indeed, and following Scalia’s (and Smith’s) essential points, intent is irrelevant: objective statement is what matters.

If you actually are sacrificing value by existing in society and your only salvation is to develop a gulch or an outer-space gulch inhabited by like-minded people, then that is what you should do, if you’ve really thought that out. I would like to see what legal system you propose for your gulch. I am not willing to buy a pig in a poke, so I need to know how copyright law would work in your regime (IP is important to me). I’d also like to be sure that those people are like-minded.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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21 hours ago, DavidOdden said:

Let’s go back to your initial premise, that persuasion has no reasonable chance of changing enough minds to make a difference. You say this because you find that “the quantity and quality of libertarian and Objectivist propaganda… make it impossible to believe that merely improving either quantity or quality would make a difference”. I particularly disagree with that assumption that the quality of “propaganda” is sufficient.

(I'm going to respond to your message piecemeal, to keep the size of my responses down, and to try to avoid having to deal with unrelated items in one message.)

("Propaganda" is often used pejoratively, but it is not necessarily a pejorative term; I mean it in a neutral sense, to refer to any material used to advance a cause.)

It's an observation, not an assumption.  Be that as it may, I will agree that there is much Objectivist propaganda of questionable quality, and that this has done a lot of harm.  But there's plenty of high quality material, and it hasn't been persuasive.

Also, that was only part of my reason; I also drew on my personal experience of trying to persuade.  I found that the nature of my arguments really didn't matter, as the people were unable to reason accurately about certain key concepts.

21 hours ago, DavidOdden said:

I claim that it is not deep enough, and not sufficiently disseminated. So, rather than trying to develop a gulch that we can retreat to, we should focus on fleshing out the argument for Objectivism.

 I do not propose a "retreat" for Objectivists, I propose a place where Objectivists can gather to live an appropriate life. The city I envision would remain involved with the world.

Also, building the city would improve the argument for Objectivism in two ways.  First, the city cannot be built unless a lot of that fleshing out is done.  The project -- even if unsuccessful -- would focus Objectivist attention on the practical aspects of the philosophy and the underlying support for those aspects.  Second, a functioning city would, in itself, be a powerful argument for Objectivism.

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22 hours ago, DavidOdden said:

I don’t think I understand what you’re saying. In particular, how do we “settle down and deal with these issues, not just talk around them”. Which issues do we need to first deal with, and how do you deal with an issue without talking about it?

The discussions about the structure of an Objectivist society have been general, largely because there has been no concrete society to hang the discussion on.  The issues that need addressing are concretes, and their support.  E.g., What should go in a Constitution and why?  Also, are there social structures that should exist aside from the government? A fire department? A noncoercive social safety net?

Right now, the stock answer is "We'll deal with these issues when they become relevant."  Building the city would make them relevant.

22 hours ago, DavidOdden said:

If you are stating that nobody has yet written the proper foundational document for a rights-respecting government, I agree, and that is my very point.

I am saying this, and also that, as part of the project, we have to write it.

22 hours ago, DavidOdden said:

if you’re saying that it requires writing some other pre-governmental document, I don’t see a reason to believe that, but feel free to persuade me, or explain the nature of that document.

There needs to be a body of work that expresses the proper method of interpreting the Constitution, either as part of the Constitution or incorporated by reference in the Constitution.

22 hours ago, DavidOdden said:
Quote

Actually, one would have to ask first:  Do we need something like a Commerce Clause and, if so, why?

I do not know of any specific discussion of this issue in Objectivism: this is an example of the lacuna in discussion.

As your later discussion indicates, we do not need anything like the existing, or for that matter, the originally intended Commerce clause, we need a proper statement of the nature and structure of the courts.

22 hours ago, DavidOdden said:

And there is very little by way of Objectivist discussion of how the Constitution should be written so as to guide future interpretation. This is where we need to deepen the "propaganda".

Aside from calling it propaganda -- resolving this would be a practical necessity in my project -- I agree.

22 hours ago, DavidOdden said:

I’m also slightly puzzled at the claim that SCOTUS has abdicated all principled analysis, since virtually all SCOTUS decisions have been principled, though many times the wrong principles have been given priority.

An analysis that uses principles, but which rejects all foundational principles, is not a principled analysis. So when SCOTUS decided that (in essence) mere dictionary definitions sufficed to give meaning to the Constitution, nothing they did after was truly principled.

I note that also that you took objection to my view that the Founders' intent was relevant to interpreting the Constitution.  I would agree, as a general proposition, that the intentions of a constitution's writers should not be consulted when interpreting the constitution.  However, that's because I think (and I believe that you agree) that this interpretation should be with reference to a proper set of principles. 

But what should a court do when there is no such set of principles, the situation confronting the Supreme Court?  It can't make such a set of principles, for practical reasons if nothing else -- cases need to be decided reasonably quickly, not after years of debate.  Never mind that the Supreme Court was really not the right group to take on the task.

The closest thing to a set of interpretational principles  they had was the Founders' intentions.  What the Supreme Court should have done was to start with those intentions, as best they could be determined, and -- as each case demanded it -- state the principles they found in those intentions.  In the event that they got it wrong, there was the process of amendment, which could be used to override the Court.

22 hours ago, DavidOdden said:

Gibbons v. Ogden, which you identified as the point to which you trace back the view of “government as a means of serving private ends”, is one example of a reasonably good and principled decision, so perhaps you are referring generally to other decisions since then.

Gibbons v. Ogden was decided correctly in terms of which side won (state government as a means of serving private ends is not proper, and is prohibited in certain instances)

That's not quite what I said.  Gibbons had nothing to say about whether the government should serve private ends. Rather, by removing the Founder's intentions (as a substitute for explicit interpretative instructions) from the equation, Gibbons made it possible for later courts to ratify the view that the government should serve as a means of serving private ends.

I wouldn't call Gibbons a good decision.  There's the fact that it eliminated any means of limiting the size of the government.  But also, the substance of the decision was not as you described.  Rather, it was: Only the federal government has the authority to grant monopolies on the waterways; the states are forbidden to do so.  A good decision would have rejected the notion that any government had the authority to grant a monopoly.

 

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Just two questions:

1. What are the things I would be able to do or accomplish, in this new country, that I'm not able to now?

2. What are the things I wouldn't be able to do or accomplish, that I'm able to now?

Answer those, and then I'll decide if going along with your idea would make me more or less free.

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On 10/27/2017 at 8:39 PM, DavidOdden said:

The notion (which is not the sole intellectual property of Objectivism) that a nation should be governed by law and not men requires that we say exactly what is forbidden, and what the consequences are of doing a forbidden act.

I don't understand what you mean. Why are all those details a requirement? Why wouldn't a more abstract argument (describing individual rights) be sufficiently convincing? After all, it convinced you and me. Are we different from other people?

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8 hours ago, Nicky said:

Just two questions:

1. What are the things I would be able to do or accomplish, in this new country, that I'm not able to now?

2. What are the things I wouldn't be able to do or accomplish, that I'm able to now?

Answer those, and then I'll decide if going along with your idea would make me more or less free.

Your questions are far too broad, since I have no clue what you might want to do.

In any case, freedom isn't about what you are able to do or accomplish, it is about what you are forbidden, under threat of violence (or equivalent), to do.

It is my intention that the place be a decent place to live but it will unavoidably be a less rich place, in many respects.  It's unlikely to support a symphony orchestra, say.  If you want beef, you'll almost certainly have to import it.  There are a lot of Objectivists who think their standard of living outweighs the unfreedom they also suffer, and who would therefore not be interested in my project.  That's their choice, of course.
 

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On Saturday October 28, 2017 at 3:43 PM, DavidOdden said:

I do not understand why you think that with an Objectivist government, a person accused of a crime cannot admit to his guilt. Are you saying that even when a person is guilty and know it, the government should still have to mount a full-blown proof of guilt? Would that mean that a person’s admission of guilt is inadmissible?

The American Founders knew well that a judicial system that functioned outside the public's supervision would become abusive.  In today's America, safeguards built into the Constitution, the grand jury and a public trial, have been subverted.

 The prosecutor has near complete control over what material is submitted to a grand jury, and he has no obligation to submit exculpatory material.  As one judge famously put it, a good prosecutor can get a grand jury to indict a ham sandwich. The result is that grand juries generally serve as rubber stamps for prosecutorial decisions, rather than the shield against unjust prosecutions they are supposed to be.

The plea process happens entirely outside the public's eye.  By the time the public can have any knowledge of what is going on -- when the plea is offered to the judge -- everything has already been decided.  And even there, the public has no say over what happens.

As a rule, defendants cannot hire their own lawyers, since doing so is too expensive.  Instead, they get court appointed lawyers.  These court appointed lawyers -- paid for by the government -- have no interest in bringing in the public and are sometimes forbidden to do so.

 

The result is that the modern American prosecution is not really about seeing justice done, it is an essentially government controlled administrative process, done almost entirely outside the public's awareness, and with no input from the public wanted or allowed.  Defendants are routinely coerced into entering guilty pleas, even when the government does not have adequate evidence of guilt. Due process has become a shibboleth, without substance.

An Objectivist government must avoid the American mistakes.  Among the requirements of its judicial system must be that a defendant who wishes to plead guilty must do so by admitting the necessary facts to a jury, which may then convict him if it finds that his admissions prove a crime.

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On Saturday October 28, 2017 at 3:43 PM, DavidOdden said:

If you actually are sacrificing value by existing in society and your only salvation is to develop a gulch or an outer-space gulch inhabited by like-minded people, then that is what you should do, if you’ve really thought that out. I would like to see what legal system you propose for your gulch. I am not willing to buy a pig in a poke, so I need to know how copyright law would work in your regime (IP is important to me).

I assume from this that you haven't read my introductory posts.  To make a long story short, I have been compelled to choose between unjust imprisonment or living as a fugitive.  I have chosen the latter. Rather more than the typical Objectivist, I have a need to live in a place where freedom -- and its requirement,  justice -- is practiced.  My situation also precludes me from the usual forms of productive work.  So, I have chosen this project as my career.

One point that I would hope is obvious: Constructing this society is not a one man job. My goal at the moment is to find people with enough interest that they can deal with the things I can't.  So, about IP.  Yes, it should be protected.  And, at some point, someone will have to fit that into the legal framework.  Might you be interested in doing it?

My current familiarity with the law is largely from an intensive examination of a system that doesn't work, the American legal system.  There are many things about that system that are worth carrying over -- things often preached more than practiced -- and many more things that are not.

One essential point is that no legal system can be written in stone.  Even more than when America was founded, the world changes.  What a legal system must have is procedures and legal principles that allow it to adapt while still seeing that justice is done.  In the American system, procedure has been elevated over substance and principle too often gets no more than lip service.  Any redesign must begin with the proposition that the goal is seeing that rights are protected and that all procedures and principles are means to that end.

Beyond that, I won't go -- I have way too many other things on my plate.  Also, it seems that others have been giving this serious thought and I need to find out what they are thinking.  Perhaps I can get some of them to work on implementing the legal system.

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On Saturday October 28, 2017 at 3:43 PM, DavidOdden said:

(IP is important to me). I’d also like to be sure that those people are like-minded.

Underlying that is an important point: All the fancy constitutions, laws, and legal procedures in the world won't mean a thing if the populace doesn't care about them.  If I populate my city with socialists, it soon would be socialist, no matter what I wanted.

In an imaginary world, the city would contain only Objectivists.  In the real world, there will be children, if nothing else, who won't be Objectivists and who might not grow up to be Objectivists.  Non-Objectivists might want to move in, and there's no legitimate way to stop them from doing so, if they can convince someone to rent or sell them property.  Objectivists who move in might well bring along friends and family who are not Objectivists.

Also, I've noticed that there are a lot of Objectivists who value security and material goods more than freedom.  (Or, maybe, who haven't faced how unfree they really are.)  I suspect that, until that changes, I'll have trouble filling my city with Objectivists. But there are undoubtedly many people who accept enough of the basics that they'd be good neighbors and even good citizens.

(And then there's the arguments over who exactly is an Objectivist....)

 

My current thought goes like this: Adults living in the city would either be residents or citizens.  Residents would be obligated to follow the law, and would not be allowed to be residents without agreeing to do so.  Citizens would have rights and obligations that residents don't have, relating to the governance of the city.  It therefore would be necessary that citizens demonstrate their understanding and acceptance of the essential principles in order to become and remain citizens.  It is they who would shape the society, through their participation in governance, and their actual acceptance of those principles would be the guarantee (as much as there can be one) that the city would protect rights.  Including IP rights.
 

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18 hours ago, Nicky said:

I don't understand what you mean. Why are all those details a requirement? Why wouldn't a more abstract argument (describing individual rights) be sufficiently convincing? After all, it convinced you and me. Are we different from other people?

(I partially don't understand your question, so I'll answer the broader question that you raise). I am basically restating Rand, in the Objective Law lecture. Copyright is an excellent example of why those details are a requirement. Rand lays out the basic philosophical justification for patents and copyrights, but does not say, for example, how long copyright should be held, nor what the penalties for infringement should be, nor whether works require registration in order to enjoy protection. The answers to these questions cannot be trivially derived from application of Objectivist principles, and some details must be fleshed out via a political process. The law has to be objectively stated, so that any man can know the consequences of his actions.

Assume that we rewrite copyright law in a fashion that seems to suit Objectivism, stating – somehow (that would itself be a fascinating project) – that when a man writes some work, it is his property, and no man can use it without his permission until he has been dead for 70 years. The penalty for violating this law is the lost revenue, plus $1,000.

Now suppose a politician gives a speech, which we find to be egregious, and we criticize his speech, quoting an actual sentence of his. Of course, under the law, we need his permission to quote him, so we get sued. There is clearly a flaw in the law that we crafted: we should have included sort quotes for the purpose of discussion. At the point of the trial, we can do one of two things. First, we can enforce the law; second, we can disregard the law, and let each judge, or juror, decide what the proper outcome is. The principles of Objectivism do not clearly say whether a law that is in error should be ignored, or must it be enforced.

At the highest level of political persuasion, we (as Objectivists) need answers to these questions, so that we can discuss the issues at all levels with others who will eventually determine the political shape of our nation. You probably will not ever engage your neighbor in a fine-pointed discussion of law and protection of rights. We have to be able to utterly persuade others that a system of government that objectively states and applies the law, where the law is created exclusively to control the use of force, is actually possible. Anytime the answer to a "How do you..." question is "We'll figure it out", that calls our program into question. If it isn't actually possible to say what the law will be in Objectivist utopia, it is unlikely that a large body of voters will embrace a pig in a poke. Even if we can get a majority of voters to irrationally vote for our pig in a poke (without fully understanding and believing the arguments for doing so), this does not solve the problem since the othre side can just as easily persuade voters to embrace their pig. We may be able to persuade others to adopt some vague philosophy embracing libertarianism and Objectivism, because many people see the two as being very similar at least in politics, but our goal (or at least mine) is not to change our government to some kind of Guy Fawkes libertarian regime.

We don't all have to engage everybody else at the highest intellectual levels, and it might suffice to persuade a majority of the masses to vote for candidates claiming to move us in the direction of secular Regan conservatism, if your concern is to undo some of the political erosion of our freedom. Just remember that there are 9 people who make massively important decisions about our rights, people who do think about very subtle principles. We don't just need to convince a generation of voters, we need to convince generations of intellectuals. To do that, we need to be able to both articulate the abstract principles, and identify the concretes (or, more concrete principles). In other words, I "call BS" on the claim that we've done everything we can do, apart from gulching. I'm identifying a major gap, and I'm calling for serious shovel work.

 

 

 

 

 

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3 hours ago, DavidOdden said:

We don't all have to engage everybody else at the highest intellectual levels, and it might suffice to persuade a majority of the masses to vote for candidates claiming to move us in the direction of secular Regan conservatism, if your concern is to undo some of the political erosion of our freedom. Just remember that there are 9 people who make massively important decisions about our rights, people who do think about very subtle principles. We don't just need to convince a generation of voters, we need to convince generations of intellectuals. To do that, we need to be able to both articulate the abstract principles, and identify the concretes (or, more concrete principles). In other words, I "call BS" on the claim that we've done everything we can do, apart from gulching. I'm identifying a major gap, and I'm calling for serious shovel work.

It's not just nine people though. The Supreme Court has a lot of man power and resources in their employment, beyond just the nine Justices. That's beyond the reach of any Oist organization. I just can't agree with setting the bar that high for Objectivist activists. What you seem to be suggesting is the equivalent of running a shadow government. Not the silly kind opposition parties tend to run in some European countries (which just consist of "shadow ministers" second guessing government decisions), but replicating the work of a full time legislature and court system.

And the work of a government is not linear. They don't just craft their laws one at a time, in a row, until they're finished. It's incremental and continuous: laws built on previous laws, case law built on those laws, case law built on case law, addressing more and more specific areas of need, resolving more and more obscure questions and disagreements, as they are raised by the citizenry, over the course of decades and even centuries. So even if the financial and intellectual resources existed to replicate the work of a government, and this shadow government would start building its laws and precedents on real cases, their work would incrementally grow more and more removed from real events (because Oist laws and case laws would be so different from existing laws, they would quickly run out of real life cases that are relevant to their alternative legislation), and lose its relevance. In other words, they would run out of the third category of resources, needed to build a justice system: the citizenry...real people, with real disagreements they seek resolution to.

So we will never have a magical hat to reach into, that can give us concrete answers to any question, objection, or purported contradiction a critic of Objectivist politics might raise. We will always have to hope that people have the vision to look past the fact that we don't have all the answers.

And we will always (well, until if/when there's an Objectivist government some place) have to settle for offering concretes that essentially go along the lines of us pointing out how a government act violates a high level principle. We will never be able to offer an alternative to a specific, low level law or precedent, that fits neatly (free of contradiction or blank spaces) into an alternative, hypothetical legal system.

 

P.S. I might be misunderstanding you. If you could explain the difference between your suggestion and my description of it above, I'd appreciate it (and I apologize if you already have, and I missed it).

 

Edited by Nicky

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12 hours ago, DavidOdden said:

The answers to these questions cannot be trivially derived from application of Objectivist principles, and some details must be fleshed out via a political process. The law has to be objectively stated, so that any man can know the consequences of his actions.

Expanding on this: 

In some cases, the answers cannot be derived from principles at all.  To give an example from another area, it is essential that people in a given geographical area drive on one side of the road.  But nothing in nature, to my knowledge, says that it should be the right side or the left side. The decision is entirely arbitrary.  But someone has to make it and enforce it.

In the case of copyright, for example, it is rather unlikely that any reasoned analysis will be able to say that a copyright duration of X years is better or worse than X+1 years.  But in order that copyright be properly enforced, an X must be picked, so that copyright holders and those who use copyrighted works know what to expect from their government and how to cooperate with one another in the creation and use of copyrighted material.

In an objective system of law, many things will be determined by principle and are therefore not subject to political (or judicial) change.  But many other things will have to be nailed down merely to make the law objective.  In such cases, a representative body or the judicial system can pick whatever answer suits them, within the limits imposed by principle.

 

Edited by Invictus2017
removing pesky blank lines

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12 hours ago, DavidOdden said:

There is clearly a flaw in the law that we crafted: we should have included sort quotes for the purpose of discussion. At the point of the trial, we can do one of two things. First, we can enforce the law; second, we can disregard the law, and let each judge, or juror, decide what the proper outcome is. The principles of Objectivism do not clearly say whether a law that is in error should be ignored, or must it be enforced.

Actually, there is a third alternative:  We can let prior decisions serve as precedent, as in the common law.  This has a certain flexibility, allowing the courts to deal with errors in the law on a case-by-case basis, while providing a more stable law than letting each judge or juror decide.  In a sense, this makes the legal process serve as a public debate over what the law should be.

There can be no fixed rule as to whether an erroneous law should be ignored or enforced; it depends on the particular law.  For example, a law that criminalizes behavior that has no victim should be ignored, and a person's conviction under such a law would be properly vacated in a later proceeding.  On the other hand, a law that slightly misproportions awards in civil cases might be enforced with respect to cases already decided and ignored in future cases.  A law that erroneously imposes mutual obligations between parties might either be enforced in toto, requiring all parties to abide by it, or not at all, dissolving all obligations -- and the choice might properly be up to the parties and not a matter of law at all (unless the parties cannot come to agreement).


 

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13 hours ago, DavidOdden said:

We have to be able to utterly persuade others that a system of government that objectively states and applies the law, where the law is created exclusively to control the use of force, is actually possible. Anytime the answer to a "How do you..." question is "We'll figure it out", that calls our program into question.

Damn right it does!

Whether one wants to set up a separate polity or persuade people in this one, one essential is a fleshed out legal system.  Creating one is a goal that people on both sides of that debate should cooperate on.
 

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