The oath of enlistment in the United States military as well as the officer’s oath includes the phrase “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” 10 U.S.C. § 502 and 5 U.S.C. § 3331.

It seems appropriate that military members swear to support and defend the Constitution of the United States rather than simply swearing to support and defend the United States simpliciter. This is significant. It means that military members are more than just neutral tools of the political party in power. This oath places an affirmative responsibility on military members to read and understand the Constitution, to recognize the source and limits of the authority they have, and to uphold the specific system of government that the Constitution sets forth.

But empowering military members in this way creates problems. Among a list of general orders, George Washington once wrote, “It is required and expected that exact discipline be observed, and due Subordination prevail thro’ the whole Army, as a Failure in these most essential points must necessarily produce extreme Hazard, Disorder and Confusion; and end in shameful disappointment and disgrace.” George Washington, George Washington: A Collection (W.B. Allen ed. 1988). General Washington is also famously quoted as saying, “Discipline is the soul of an army. It makes small numbers formidable; procures success to the weak, and esteem to all.” The military oath of enlistment recognizes the importance of obedience, subordination, and discipline by including the phrase, “I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.” 10 U.S.C. § 502.

Inevitably, there will be occasions when the military members’ responsibility to support and defend the Constitution will conflict with the orders they receive. This conflict puts military members in a difficult situation. Which part of their oath should they uphold? How do they evaluate and resolve the conflict? How can they know whether the order is really unconstitutional?

For military members, failure or refusal to obey a lawful order is a criminal offense. The Manual for Courts Martial (MCM) explains that the maximum peacetime penalty for willfully disobeying a superior commissioned officer is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years. The maximum wartime penalty is death. MCM ¶14.e(2)-(3). Not only that, but “An order requiring the performance of a military duty may be inferred to be lawful and it is disobeyed at the peril of the subordinate. … [T]he dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.” MCM ¶14.c(2)(a). In other words, to avoid the penalty stated above, the military member has the burden of proving that the order he or she disobeyed was unlawful. That’s no small task, even for trained lawyers, and many of our military members are 18 to 22 year-old kids with only a high school diploma.

So, what’s the answer? Clearly we can’t permit military members to refuse orders based on their private interpretation of the Constitution. But what is the threshold? When is an order unconstitutional enough that military members can safely disobey it? The easy solution is to say to military members, if you believe strongly enough in your position, then make your stand and face the consequences. But I don’t find that very satisfying. Any ideas?

Some examples you might react to in your comments are listed below.

Private First Class Bradley Manning—the soldier who gave classified information to wikileaks. Below is an excerpt of his explanation for why he violated orders about the use of classified information:

i think the thing that got me the most… that made me rethink the world more than anything was watching 15 detainees taken by the Iraqi Federal Police… for printing “anti-Iraqi literature”… the iraqi federal police wouldn’t cooperate with US forces, so i was instructed to investigate the matter, find out who the “bad guys” were, and how significant this was for the FPs… it turned out, they had printed a scholarly critique against PM Maliki… i had an interpreter read it for me… and when i found out that it was a benign political critique titled “Where did the money go?” and following the corruption trail within the PM’s cabinet… i immediately took that information and *ran* to the officer to explain what was going on… he didn’t want to hear any of it… he told me to shut up and explain how we could assist the FPs in finding *MORE* detainees … everything started slipping after that… i saw things differently i had always questioned the things worked, and investigated to find the truth… but that was a point where i was a *part* of something… i was actively involved in something that i was completely against…

Lieutenant Colonel Terry Lakin, a decorated active-duty Army flight surgeon who refused to deploy for a second time to Afghanistan because he believed that his order to deploy was illegal. In a video statement he said,

I will disobey my orders to deploy because I, and I believe all service-men and women, and the American people, deserve the truth about President Obama’s constitutional eligibility to the office of the presidency, and the commander-in-chief. If he is ineligible, then my orders, and indeed all orders, are illegal because all orders have their origin with the commander-in-chief as handed down through the chain of command.

Finally, the post-Katrina gun grab in New Orleans, where National Guard troops were ordered to confiscate lawfully-owned firearms from law-abiding citizens.

My tentative opinion is that military members’ responsibility to judge the lawfulness of an order has something to do with the nature of the constitutional question as well as the scope of the military member’s responsibility. But I don’t have any useful generalizations yet. I welcome your comments.

The world is full of people with strange ideas. But despite society’s present obsession with diversity in race, socioeconomic background, gender, and sexual orientation in schools and workplaces—all of which are, at best, merely superficial signs of diversity—the modern state will not tolerate diversity in more fundamental areas, such as values. This is particularly evident in decisions concerning one’s life or the life of one’s children. In my previous post I wrote about laws which force parents to administer a medical test to their infant children. Advocates of these laws insist that the child’s life and health are of paramount value, and other considerations—including parental rights, moral beliefs, and individual liberty—must yield.

Our culture and history are full of stories about individuals who chose to value something more than life. Here are a few examples; I’m sure you can think of many more. Patrick Henry famously exclaimed, “give me liberty or give me death.” Christians, Jews, and Muslims all honor Abraham for valuing obedience to God more than his son’s life. Romantics treasure the story of Romeo and Juliette for valuing love over life. Even the academics have Socrates who insisted that “the unexamined life is not worth living.” Plato, Apology. When these individuals are safely pinched into stories and songs, society honors them as heroes, patriots, prophets, and so on. But when society deals with such diverse people in real life, it is much more inclined to label them as lunatics, fanatics, or simply ignorant, and to try to force them to conform their ideas and behavior to that of the majority.

Squelching diversity of values is one prerequisite for any utilitarian or economic analysis of the law. For example, in the recent healthcare debate, the contested issue became cost. Pundits and politicians focused on whether socialized health insurance would cost more or less than the current system. The President and his allies argued strenuously that they would control costs by appointing independent commissions and cutting spending in other programs. Opponents argued that this was not true. There was little said about anything else. Other values, such as property rights and freedom to choose the type and amount of healthcare, took second seat. This is a familiar maneuver: assume without discussion that one value takes priority over all others and then discuss the best way to promote that value. The deception here is that deciding which value to prioritize is often the most important and controversial issue at stake. It merits careful discussion and debate. Liberty, life, love, obedience, spirituality, individuality, human dignity, property; which should take priority, and who should decide? Anyone who values human equality must admit that this is an individual decision.

Liberty is the only value that the state can adopt and promote that will permit each individual to order her values as she chooses. Robert Nozick recognized this simple truth in his work Anarchy, State, and Utopia.

[P]eople are different. They differ in temperament, interests, intellectual ability, aspirations, natural bent, spiritual quests, and the kind of life they wish to lead. They diverge in values they have and have different weightings for the values they share. (They wish to live in different climates—some in mountains, plains, deserts, seashores, cities, towns.) There is no reason to think that there is one community which will serve as ideal for all people and much reason to think there is not. … Utopian authors, each very confident of the virtues of his own vision of its singular correctness, have differed among themselves (no less than the people listed above differ) in the institutions and kinds of life they present for emulation. … The conclusion to draw is that there will not be one kind of community existing and one kind of life led in utopia. Utopia will consist of utopias, of many different and divergent communities in which people lead different kinds of lives under different institutions. Some kinds of communities will be more attractive to most than others; communities will wax and wane. People will leave some for others or spend their whole lives in one. Utopia is a framework for utopias, a place where people are at liberty to join together voluntarily to pursue and attempt to realize their own vision of the good life in the ideal community but where no one can impose his own utopian vision upon others.

310-312 (1977). Despite its plain appeal, statists on both the left and the right resist real freedom because it would mean giving up the power they have usurped. Republicans want to control moral behavior and foreign affairs, while Democrats wish to usurp individual property rights and control citizens’ day-to-day living conditions. Both parties openly and subtly try to control the thoughts and speech of citizens through public education, campaign finance laws, and penalizing unpopular behavior.

Undoubtedly there is a fixed right and wrong. Truth is not relative. But if history and ethics have taught us anything, it is that people cannot be driven to the truth by threats and force. The use of force to suppress an idea—whether right or wrong—will only strengthen its power in the mind of its followers and spark curiosity in undecided onlookers. Conversely, the use of force to promote an idea will ultimately weaken it because it is a tacit admission that the idea cannot stand on its own merits. Teach, persuade, and reason, but don’t threaten or force people to support ideas or programs that you think are right—whether through coerced taxation or police enforcement or otherwise.

Ultimately, we each get to pick our own heroes and lunatics, and we’ll probably disagree a lot. But that should remain an individual judgment, not a judgment of the state.

During the summer of 2007 I lived in southern Arizona, about twelve miles from the U.S.–Mexico border. Needless to say, illegal aliens were everywhere. The border patrol regularly caught large groups of them, dangerously dehydrated, wandering lost through the searing desert. It was more common to see illegal aliens being loaded into the back of Border Patrol vans than to see police issuing speeding tickets. The problem is so bad there that the federal government has posted signs on many rural roads that read “Warning, Smuggling and/or illegal entry is common in this area due to the proximity of the international border. Please be aware of your surroundings at all times and do not travel alone in remote areas,” and “Travel Caution: Smuggling and Illegal Immigration may be Encountered in this Area.”

While it is unlikely that “the majority of [illegal aliens] are becoming drug mules,” it is a mistake to minimize the problem. Although most of the illegal aliens probably enter the United States in search of higher wages and government handouts, illegal entry into the United States—especially along the southern border—fosters lawlessness and threatens individual security and property rights. The difficult question is what to do about it.

After decades of frustration over the federal government’s failure to address the problem, Arizona passed SB 1070. Section 1 of the bill states,

The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.

Notice that SB 1070 is an effort by Arizona to enforce “federal immigration laws.” It does not create new legal standards and requirements for immigration. Notwithstanding this, the federal government sued Arizona in federal court, seeking to have the law declared unconstitutional.

It its lawsuit, the federal government complains that SB 1070 violates the Supremacy Clause, found in Article VI, Clause 2 of the United States Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

But claiming that SB 1070 violates the Supremacy Clause seems like a stretch to me. The federal government created a set of laws governing immigration and then adopted a policy of not enforcing those laws. SB 1070 doesn’t conflict with federal law; it conflicts with the federal policy of non-enforcement. A policy conflict doesn’t violate the Supremacy Clause. In fact, Arizona’s actions are probably more constitutional than those of our present and recent presidents. Under Article II Section 3, the President is bound “to take Care that the Laws be faithfully executed.” No honest, thoughtful American can believe that the immigration laws have been faithfully executed.

This doesn’t answer the question, however, of what role the states ought to have in regulating immigration. In other words, just because Arizona hasn’t violated Constitutional restraints by passing its law doesn’t mean that SB 1070 was good policy or that states should have a role in immigration. The drafters of the Constitution included an amendment process for good reason.

Rational critics of the Arizona law—I mean the ones that aren’t out parroting slogans about hate and racism—have offered a number of practical reasons why SB 1070 is a bad idea. See here (Reason Magazine), here (Cato Institute), and here (Cato once again). But good government and legitimate laws must be founded on just principles; mere economic analysis or consequentialist arguments are not enough. So, the initial question is what justifies restricting immigration? What justification exists for regulating movement across national boundaries? I believe that the justification derives from the fundamental individual right of property ownership.

Consider the following startlingly simple argument:

There can be no human right to immigrate, for on whose property does someone else have the right to trample? In short, if “Primus” wishes to migrate now from some other country to the United States, we cannot say that he has the absolute right to immigrate to this land area; for what of those property owners who don’t want him on their property? On the other hand, there may be, and undoubtedly are, other property owners who would jump at the chance to rent or sell property to Primus, and the current laws now invade their property rights by preventing them from doing so.

The libertarian society would resolve the entire “immigration question” within the matrix of absolute property rights. For people only have the right to move to those properties and lands where the owners desire to rent or sell to them. In the free society, they would, in first instance, have the right to travel only on those streets whose owners agree to have them there, and then to rent or buy housing from willing owners. Again, just as in the case of daily movement on streets, a diverse and varying pattern of access of migration would undoubtedly arise

Murray Rothbard, The Ethics of Liberty 119-20 (2nd ed. 1998). In other words, for Rothbard, immigration is simply an issue of private property rights.

For reasons I explained in a previous post (and my lengthy explanatory/rebuttal comments), I don’t accept the idea of absolute private property rights as proposed by Rothbard. This makes the immigration issue more complex, but it is more true to reality. We don’t live in a world of absolute property rights and probably never will.

Additionally, whether we like it or not, many of the systems, resources, and goods in the United States have been socialized. We play in public parks and drive on public roads; we send our children to public schools; and, as of recently, our healthcare system has become socialized as well. Our trash disposal, water, electricity, and gas systems are often government-owned, or at least closely controlled by government. Our telephone, cable, satellite and internet systems and infrastructure are licensed and regulated by government and subsidized through the use of eminent domain. Our financial system is overseen by government regulators, and even our currency depends upon government promises for its value. A system of open borders where landowners control immigration through anti-trespassing laws simply cannot function under these conditions.

Despite all of this, property rights principles still can and should guide immigration law, albeit in a slightly different way. As stated by Rothbard’s argument above, a human right to immigrate would imply the right to enter and or use some property. In the case of private property, the private landowner holds the right to exclude. In the case of government property, the property right belongs to the citizens of the country or state which owns the property. This means that the citizens—through their elected officials—have the right to exclude from government property those who do not satisfy the conditions for its legal use.

This brings us back to the initial question about the role of states in establishing and enforcing immigration law. Traditionally, immigration law has been dominated by the Federal Government, and there is some constitutional support for this: Article I Section 8 Clause 4 explicitly grants Congress the power “To establish an uniform Rule of Naturalization.” But if we justify immigration restrictions by appealing to a modified theory of property rights, the states have at least as much of a right to control illegal immigration as the federal government has. Most public roads are owned by states, counties, and cities. If a utility is government-owned, it is the state or local government that owns it. Police and fire departments are funded through state and local taxes. And public schools are paradigmatically state and local entities. Significantly, these state systems are the ones that are most heavily burdened by illegal immigration.

Given the magnitude of the states’ interest in immigration law, it seems highly unreasonable to insist, as the federal government does in its lawsuit challenging SB 1070, that “the Constitution vests the [the federal government] with exclusive and plenary authority to establish the nation’s immigration policy.” While it makes sense—for uniformity’s sake—to vest control of legal immigration in the federal government, there seems to be no real need to do so for illegal immigration. If a person violates federal law and enters the country illegally, the alien’s state of residence will bear most of the burden that that person causes. So rather than sue the states for trying to protect their taxpaying, law-abiding citizens, let’s let the states protect their interests.

Despite the Supreme Court’s recent ruling in Citizens United v. Federal Election Commission (see explanatory video here if needed), Congress seems poised to resume its underhanded and self-serving efforts to control political speech. Congress is now considering legislation, sponsored by Representative Chris Van Hollen of Maryland and Senator Charles Schumer of New York, that would further restrict political speech during election season. This latest legislative effort bears the auspicious title of “Democracy Is Strengthened by Casting Light On Spending in Elections Act,” which generates the acronym DISCLOSE for its short name. (H.R.5175, and S.3295 respectively).

Given the Supreme Court’s clear ruling in Citizens United which protected robust free speech rights, it may surprise you to learn that in many ways the DISCLOSE Act would restrict speech even more aggressively than the law which the Supreme Court recently struck down. For example, the old speech restrictions only applied to electioneering communications that were made within 60 days prior to a general election. The DISCLOSE Act would double that time period to 120 days. Features like this might give the impression, at first glance, that instead of accepting the Court’s scolding for violating the First Amendment, Congress, like a petulant child, is bent on contradiction and belligerence.

But the DISCLOSE Act isn’t just Congress’ reflexive gag to a bitter slice of humble pie. It is cunningly crafted legislation that would, if enacted, stifle challenging, political speech without falling into the same legal pitfalls as the McCain-Feingold Act. Since the Supreme Court rejected an outright ban on all corporations, the DISCLOSE Act pretends to take a more moderate approach. Instead of directly restricting the speech of all corporations and unions, the DISCLOSE Act would directly restrict the speech of only certain classes of corporations. These classes are government contractors if the value of the contract is at least $7 million; recipients of recent government bailout funds; and foreign-controlled domestic corporations. In all fairness, these restrictions are relatively reasonable—as government restrictions go. But the real teeth of the DISCLOSE Act are found—quite fittingly—in the new disclosure requirements. Consider the following.

The DISCLOSE Act expands the definition of “independent expenditure” to include, “an expenditure that, when taken as a whole, expressly advocates the election or defeat of a clearly identified candidate, or is the functional equivalent of express advocacy.” Sec. 201(a). This tack-on at the end about functional equivalence gives the Federal Election Commission broad discretion about what speech it can regulate, and it correspondingly creates uncertainty among potential speakers about what speech is safe from regulation.

The DISCLOSE Act imposes filing requirements on everyone who wishes to spend over a $10,000 on political speech to, “(1) file a report electronically within 24 hours; and (2) file a new report electronically each time the person makes or contracts to make independent expenditures in an aggregate amount equal to or greater than $10,000 (or $1,000, if less than 20 days before an election) with respect to the same election.” Sec. 201(b). These filing requirements apply irrespective of whether it is election season or not. $10,000 may seem like high threshold, but it doesn’t last long when you consider the cost of broadcasting on television and radio. The bottom line is that before you speak about politics in any significant way, you have to warn the federal government of your intentions.

The DISCLOSE Act “Requires corporations, labor organizations, tax-exempt charitable organizations, and political organizations other than political committees (covered organizations) to include specified additional information ….” Sec. 211(a)(5)(A). This information includes, among other things, the names of substantial donors. This disclosure requirement will discourage political speech, especially the speech of those who advocate political messages that don’t agree with their community’s acceptable mainstream. Think, for example, of what this would have done to the civil rights movement in the south. Many political and social issues debated in politics today similarly raise deep prejudice and anger, and publicly disclosing the names of those who support unpopular ideas causes more than minor discomfort.

The DISCLOSE Act requires any television or radio advertisement to include statements by substantial donors stating “‘I am XXXXXXX, and I approve this message.’, with the blank filled in with the name of the applicable individual.” Sec. 214(e). Organizational donors must similarly identify themselves. This, obviously, will waste expensive seconds that would otherwise have been available for the speakers to communicate their message.

This list of restrictions found in the DISCLOSE Act is by no means a comprehensive one, but I think it illustrates a subtle, underhanded strategy for restricting speech that seeks to undermine First Amendment rights while avoiding constitutional challenge. Instead of direct bans, this strategy seeks to increase the costs—both social and economic—for those who wish to exercise their First Amendment rights. It comes on the heels of loud public outcry about many of Congress’s policies, and it immediately precedes an election season in which most voters’ starting assumption will be that “incumbent” means “incompetent and corrupt.” Even if the DISCLOSE Act did nothing more than confuse and intimidate speakers about what was permissible and what was not—which it certainly will do if it is passed, that would be reason enough not to enact it. But this legislation would do far more damage than that.

As with most issues that appear in the national news, politicians and pundits have badly muddled the question of what to do with non-citizens captured by American soldiers and their allies. The recent debate about if and where to try Khalid Sheik Mohammed has provoked intense debate and strong feelings. For example, in response to President Obama’s plan to bring Khalid to New York for a trial in federal court, Congressman Pete Olson of Texas issued a press release which included the following statement: “This Administration needs to understand what the American people already know. Terrorists captured in foreign battle zones are not like us—they don’t deserve our sacred constitutional rights.” I also oppose measures to try “terrorists captured in foreign battle zones” in federal courts, but for very different reasons.

Congressman Olson is wrong about the U.S. Constitution; it certainly does protect terrorists. It protects everyone. Olson’s mistake is a common one for people who don’t understand the Constitution’s role. The Constitution was meant to restrain the power of the federal government, and its principles derive from self-evident, inalienable rights. These rights belong to all humans as humans. If the Constitution were strictly limited to U.S. citizens or residents, or even if it were limited to people who are not captured in foreign battle zones, it would be ineffective. If membership or non-membership in a category were a prerequisite for having “sacred constitutional rights,” the federal government could avoid constitutional restraints by simply categorizing individuals as unprotected. That process of categorization itself would be unrestrained, because if the government did not have to abide by the Constitution in its dealings with a category of individuals, then it could act however it chose toward them. Such individuals would have no right to a fair trial, no right to due process, no right to be free from torture or even summary execution. This is an absurd result.

But recognizing that terrorists have constitutional rights does not inevitably lead to the conclusion that those rights may or must be adjudicated by federal courts. Although the Constitution is meant to restrain the federal government in all of its interactions, regardless of who it is dealing with, the form of those restraints varies. The important question is not whether terrorists are entitled to constitutional rights, but rather which branch of government is responsible for protecting those rights and the method by which they must be protected. In short, it is an issue of separation of powers and procedural due process.

For Americans today, courts are the natural first choice for protecting constitutional rights. But it was not always so, and the Constitution clearly did not entrust courts with the power to determine those rights in every circumstance. Take, for example, the writ of habeas corpus. The writ of habeas corpus is the legal procedure by which a litigant may compel the government to release a person who the government doesn’t have good cause to imprison. Obviously this is an extraordinarily important procedure, but the Constitution explicitly grants to Congress the power to suspend the writ of habeas corpus “when in cases of Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2. Consider also that the Constitution entrusts to Congress and the President the power to employ military force to destroy the lives or property of foreign nations: “The Congress shall have power … To declare war.” Art. I, §8, cl. 11; and “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States” Art. II, §2, cl. 1. No court is involved even though the rights of those individuals in enemy countries are drastically curtailed by the federal government.

The Founding Fathers recognized a simple truth that many politicians and pundits cannot seem to grasp: judicial adjudication of constitutional rights is neither possible nor even desirable in every circumstance. The task of dealing with individuals captured by the military on foreign battlefields is one of these circumstances. A federal court trial is not appropriate here for at least two reasons: competence and jurisdiction.

Federal courts are not competent to adjudicate the rights of individuals captured on foreign battlefields. This is not because judges are not smart enough or because of flaws in the trial process. Federal courts are not competent for this task simply because the processes and goals of a criminal trial are not compatible with the exigencies and aims of war. The military is not equipped to handle evidence, find witnesses, or investigate crime; it is equipped to achieve victory by bringing death and destruction to our enemies. The purpose of capture and imprisonment in a military context is not to punish wrongdoing or rehabilitate wrongdoers; it is to neutralize threats. Consequently, the federal courts’ complex rules of evidence and procedure that help ensure fairness in regular criminal trials only cause confusion and mistakes when applied in the context of military prisoners. But even more serious than the lack of competence is the problem of jurisdiction.

For a federal court to have authority to decide a case brought before it, it must have jurisdiction over the individuals involved in the case. Generally, a court has jurisdiction over individuals who are within the territory of the nation to which the court belongs. This makes intuitive sense. For example, prostitution is legal in the Netherlands but it is illegal in the United States. Nevertheless, a United States court clearly has no authority to hear cases about people who prostitute themselves in the Netherlands—even though it violates United States law—because it is outside of the jurisdiction of United States courts. Granted this is easier to accept than the terrorist cases because there are not United States troops occupying the Netherlands, and prostitution in the Netherlands doesn’t directly threaten United States’ national security. But the concept is the same. United States courts don’t have jurisdiction over individuals who commit crimes outside of the United States. Any other policy aggrandizes the United States federal courts as arbiters of justice for the whole world, or at least however far United States military power can reach. This is insufferable arrogance.

The jurisdiction of federal courts is also limited by the fact that warfare and national security are the province of Congress and the President. By constitutional design, courts were not given authority over foreign affairs—especially where there is a need for secrecy, rapid response, or coordinated effort. Justice Scalia effectively argued this position in his fiery dissent from the court’s opinion in Boumediene v. Bush.

What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

Boumediene v. Bush, 553 U.S. 723 (2008) (Scalia J. Dissenting). So although it seems like the Supreme Court is protecting individual rights by hearing cases about military detention, it is, in effect, a power grab by the Court. It allows the Court to finally extend its reach into the field of foreign affairs—which for so long has been beyond its power.

For all of these reasons, bringing individuals into United States courts to adjudicate the extent of their constitutional rights is a bad idea. It is a bad idea because federal courts are not competent to handle such cases; it is a bad idea because it aggrandizes the jurisdiction of United States courts beyond their territorial limits; and it is a bad idea because it permits the Court to seize power from Congress and the President, once again, under the guise of protecting individual rights.

So although I reject Congressman Olson’s shocking claim—that terrorists don’t have sacred constitutional rights—we reach the same result. Bringing individuals captured on foreign battlefields into the United States for trial in United States courts is the wrong way to vindicate those rights.

Libertarians oppose government regulations. This is arguably their defining characteristic. It is also the reason that many Americans reject libertarian political philosophy as unworkable, utopian, or just plain foolhardy. Other political philosophies on both the left and the right embrace government regulation to some degree; they simply disagree about what and how to regulate.

Personally, I feel uneasy about libertarianism’s blanket rejection of government regulation, and for some time I have tried to reconcile this uneasiness with concepts that are critically important to me like self-ownership and individual equality. I have struggled to explain my uneasiness because I believe that no government action can be justified by mere efficiency, expediency, or convenience. I’m not sure I’ve found a good solution, but here’s what I’ve come up with.

Drawing on principles of human equality and individual rights, libertarianism easily seizes the high ground in any discussion of political principles. But there is, I think, a tendency among libertarians—as well as fiscal conservatives, constitutionalists, and anarcho-capitalists—to overstate the reach of these rights-based arguments against government regulation.

Rights-based arguments against government regulation usually run as follows: I have a right to do X; this regulation restricts me from doing X; and since this regulation violates my right, it should be struck down or repealed. This is a persuasive argument, but it is frequently misapplied. The problem, unsurprisingly, is in determining whether the regulated action truly is an individual right.

Generally, individual rights fall into the three categories that were recognized in the Declaration of Independence: Life, Liberty, and Property (Pursuit of Happiness). These rights are phrased broadly, but it is important to recognize that an individual’s rights are always limited by the rights of others. For example, an individual’s right to life evaporates when he attacks someone else: his right to life yields to his victim’s right to life—expressed as the right of self-defense.

It is easy to accept that no individual has the right to intentionally harm innocent others. This is a clear limit to individual rights, and it is fundamental to criminal law. But government regulations go much further. Government regulations often limit actions which are not meant to cause harm, but which create a risk of unintentional harm. Regulations of this kind cause controversy because they restrict actions which may never actually harm anyone. Libertarians seize on this fact and reject these regulations as a violation of individual rights. On its face, this is potent criticism.

True human equality means that individual liberty cannot be restricted unless it is being exercised in a way that violates others’ rights. Actions which don’t in fact harm anyone don’t seem to violate anyone’s rights, so there doesn’t seem to be any principled justification for government regulation. In general, this is an excellent argument, but it fails in the context of unreasonable risk of irreparable harm.

Individuals have a right to be free from unreasonable risk created by others’ behavior. This is heresy to libertarian philosophy, but I think it is right nonetheless. Individuals have a right not to be exposed to unreasonable risk created by others’ behavior. When individuals choose their home, job, transportation method, recreation, and lifestyle, they simultaneously choose to subject themselves to a certain risk level. They accept that risk level because they believe that it is worth it. If that risk level increases because someone in the community chooses to engage in unreasonably risky behavior, then that person has violated the rights of the other members of the community. Differentiating between unreasonable risk and reasonable risk (risk that is just an unavoidable part of life) is difficult, but community standards provide a benchmark.

Unreasonable risk by itself is not enough to justify regulation, however. Regulation is appropriate only when there is unreasonable risk of irreparable harm. Irreparable harm is harm that cannot be undone by the payment of money, such as death and serious bodily injury. If the harm can be undone by payment of money, then the appropriate remedy is a lawsuit rather than regulation. The reason for this is that regulations are necessarily imprecise. Regulations are general rules that cover a whole class of individuals or activities, so, inevitably, some individuals will be included in the class and subjected to the regulation who should not be. If harm can be undone by the payment of money, the individual who was harmed can be put in approximately the same position as he would have been in had the harm never occurred. So the imprecision of regulation is unjustified.

There are easy cases and hard cases, of course, but I think the principles are clear. Consider the following example. A contractor decides to cut costs by storing his dynamite supply in the basement of his home. He does not intend to injure anyone, but he is nevertheless exposing his neighbors to significant additional risk. In a residential community this risk is unreasonable because dynamite storage is more hazardous than most residential activities and dynamite is not commonly stored in residences. Additionally, if the dynamite explodes, it will likely cause irreparable injury. The opportunity to sue in the event of an accidental explosion is not a good solution to this situation because recovering money in a lawsuit is never adequate recompense for death or serious injury. So, a government regulation prohibiting residential dynamite storage is justified and does not violate the contractor’s rights.

I am only tentatively attached to these arguments. The critical leap is the premise that individuals have a right to be free from unreasonable risk of irreparable harm. I think this is right, but this comes more from gut feeling than reasoned argument.

On 16 June 1933, the front page of the New York Times announced the enactment of President Roosevelt’s New Deal legislation:

Assuming unprecedented peacetime control over the nation’s economic life, President Roosevelt placed in operation today his sweeping program for recovery from the depression.  Within two hours he signed acts of Congress giving him control over industry, power to coordinate the railroads, and authority to start work on a $3,300,000,000 public works program, and then began the active administration of these and other major measures.

N.Y. Times, A1 (6/16/1933).

This expansion of government power marked a radical departure from our country’s founding principles of liberty. Over the next few years the federal government spawned over 100 new agencies—called the alphabet agencies—to wield this power. This was the beginning of the administrative state.

The administrative state is incompatible with liberty for many reasons, most of which have to do with laissez-faire principles. But one reason that should persuade even the most committed statist is that adopting the administrative state undermines the core constitutional principle of separation of powers.

Long before the founding fathers began worrying about American independence, statesmen and political philosophers had advocated separating the powers of government. The idea itself is rather simple: if a single governing body possesses the power to write the law (legislative power), enforce the law (executive power), and apply the law to individual cases (judicial power), then there is nothing to prevent that governing body from destroying liberty. James Madison wrote about the importance of separating government’s powers as follows:

No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

James Madison, The Federalist No. 47

When the powers of government are distributed among coequal branches, the excesses and extremes of any one branch are moderated by the other two. For example, if the executive branch tries to use its power to unlawfully oppress an individual or group, the judicial branch can declare its actions unlawful, or the legislative branch can enact a law to prevent the oppression. Of course, if all three independent branches conspire together to destroy liberty, then separation of powers will not help. But having such a combination is far less likely than having just one of the branches run amuck.

Nazi Germany, which exemplified many of the evils of unrestrained government power, serves as apt illustration of the consequences of disregarding the principle of separation of powers:

Independence of the judiciary was destroyed. Judges were removed from the bench for political and ‘racial’ reasons. Periodic ‘letters’ were sent by the Ministry of Justice to all Reich judges and public prosecutors, instructing them as to the results they must accomplish. Both the bench and bar were continually spied upon by the Gestapo and SD, and were directed to keep disposition of their cases politically acceptable. Judges, prosecutors and, in many cases, defense counsel were reduced in effect to an administrative arm of the Nazi Party.

United States v. Altstotter, Nuremburg Military Tribunals case no. 3 pg 7 indictment count 1 ¶ 7 (1947).

I am not arguing that disregard for the principle of separation of powers directly caused the horrors of Nazi Germany. I am confident, however, that separating the three primary government powers helps guard against such radical movements. This should appeal to individuals on every part of the political spectrum.

It is critical to understand that keeping government powers separate is the people’s responsibility. Each of the three branches will naturally press against the limits of its power—even when not driven by radicalism. That is the nature of power. So, if the people disregard the principle of separation of powers, each branch will gradually usurp the power of the others.

Usurpation by the judicial branch is called judicial activism, and it frequently attracts media attention and public anger. But the harm to separation of powers wrought by the administrative state, sometimes called the “unelected fourth branch of government,” attracts little notice today—although it was vehemently opposed in its early years.

So, how does the administrative state undermine the principle of separation of powers? The following quote from the United States Court of Appeals for the Ninth Circuit helps illustrate:

Most federal administrative agencies combine within one organization a number of responsibilities that our system of government normally seeks to separate. They formulate policy as does the legislature, administer policy as does the executive, and adjudicate controversies as does the judiciary. They investigate infractions of statutes or regulations, prosecute those against whom their investigation has established a prima facie case, and judge the case they themselves have presented.

Grolier v. Federal Trade Commission, 615 F.2d 1213 (9^th Cir. 1980)(citing W. Gellhorn & C. Byse, Administrative Law, Cases and Comments 1035 (1974)).

In brief, most federal agencies violate the principle of separation of powers.

Unfortunately, this isn’t just another academic issue that will never touch the life of the average citizen. Agencies write volume upon volume of regulations each year. Most businesses are subject to agency regulation, and the consequence is that consumers must pay higher prices for goods and services. Agency regulation is particularly costly because it lacks the tempering influence of separation of powers.

Since the legislative, executive, and judicial functions are merged in many federal agencies, an agency’s regulatory goals may change drastically on short notice. Executive agencies are particularly volatile because every time the nation elects a new president, executive agencies get new leadership and the agencies’ regulatory goals change. When regulations change, businesses must spend money to comply, and these expenses are passed along to consumers.

Notwithstanding all this, I think it is important to recognize that the problems which agencies are created to solve are not often trivial. Usually they are serious problems which demand a meaningful solution. But the administrative state is not it. The administrative state violates the principle of separation of powers and permits the elected branches of government to punt tough issues of governance to unelected bureaucrats.

When the wealthy go hunting, they often employ people called beaters to walk in the thickets and startle animals into the open. If the animals were intelligent, they might recognize that they had two options besides running out in front of the hunters’ guns: stay put and let the beaters wander by or, if the beaters get too close, attack the poorly-armed beaters as they grope blindly through the thicket.

Choosing the administrative state in an effort to solve the nation’s problems is to permit fear or discomfort to drive us into a rash decision which undermines liberty; it is like the animal choosing to run out in front of the hunters’ guns. We must not forget that we have other options. If a problem is not yet concrete, if it is still possible that it will not come about, we can dig in deeper and wait for clearer information. Perhaps advances in technology will solve the problem. Maybe the potential problem will turn out to be nothing more than an unfounded suspicion. Finally, if we find that the problem is unavoidable, we can attack it head on. Our elected representatives can craft thoughtful legislation in harmony with the Constitution to solve those problems which are capable of solution.

A few weeks before the 2008 primary election, a non-profit corporation called Citizens United tried to release a video criticizing Hillary Clinton. Federal campaign finance laws prohibited this, so Citizens United sued. In 2010, the Supreme Court ruled that those campaign finance laws were unconstitutional because they violated the First Amendment. President Obama publicly criticized the Supreme Court’s decision.

This video explains why President Obama was wrong and the Supreme Court was right.

There are three parts to this video.

httpvp://www.youtube.com/view_play_list?p=E051A99812EE8C85