Starting Point

January 10th, 2012 - by Quincy

Human equality is the foundational principle of liberty. It means that no person inherently has authority to do violence to any other. It means that no person inherently has authority to control or command any other. It means that no person inherently has authority to take the property of any other. The Declaration of Independence summarized these three principles as the right to life, liberty, and the pursuit of happiness. Most Americans won’t argue against human equality outright. The arguments begin when the principle is applied to real life situations.

Consider the statement “every child is entitled to a good education.” It sounds nice, very generous and caring. Politicians love to say things like that because it brings in votes. After all, who doesn’t want to help children have a better chance at a successful life? Proponents argue that equality itself requires that every child be given an equal chance to learn and to develop his or her mind. Such claims sound persuasive, but they grow out of a misunderstanding about what “equality” means.

These misunderstandings about what “equality” means are often caused by ignoring the human labor required to create the conditions of everyday life. If you assume that the world naturally produces shopping malls, educational institutions, health care services, housing developments, grocery stores, etc., then it is easy to feel entitled to an “equal” share of them. But these things don’t naturally appear in the world like rocks and grass and water; they are the product of someone else’s labor. To say that every person is entitled to education equates to saying that students have a right to force teachers, pencil factories, textbook publishers, power companies, construction workers, and so on to give them an education. This clearly violates the description of equality above, that no person has the authority to take the property of any other or control or command any other.

The correct understanding of what human equality means only becomes clear when you start with an accurate description of the world: the world is made up of many natural resources, but most are only useful or valuable if someone works to make them so. It takes hard work by other people to create things like education. With this in mind, it is easy to see that you can’t take goods or services produced by someone else’s labor just because you want or need them; that would be treating the laborer as your slave rather than as your equal. Instead, you have to set up a voluntary exchange: give the laborer something he wants and he will give you what you want in return.

So next time you hear about a government plan to provide some wonderful and beneficial service, remember this: the socialist, utopian view that all mankind must be harnessed to the plow so that a few central planners can transform the world into the Garden of Eden sounds nice to those who don’t intend to do much pulling. It also sounds wonderful to the ones who manage to get behind the plow and take hold of the reigns. But forcing a yoke on another person no matter how well-intentioned your goal, is never compatible with human equality.

A New Project

January 10th, 2012 - by Quincy

In an effort to clarify my own thoughts as much as to share them with others, I intend to post a series of short articles explaining the basic elements of my political philosophy. I will group these under the category, “foundations” to distinguish them from other articles and make them easier to find. I expect that some of the material in this series will cover ideas already partially covered in previous posts, but I will try to expand and organize the presentation in these articles for easier reading. Please add comments, questions, and criticism that you think is appropriate, as this will help me identify any unfounded assumptions and explanations that are unclear.

Modern Kings

October 5th, 2011 - by Quincy

The struggle between those who love liberty and those who love government boils down to a difference in commitment to the principle of equality. For centuries there were a few individuals who by virtue of their bloodline held enormous power over their fellowmen. They were called kings, princes, lords, emperors, czars, sultans, and so on. In many cases the power which these men held was virtually unchecked. They held the power to take anything from their subjects which force can take. Some countries even formally recognized this power as a divine right conferred by God for some inscrutable reason. Most kings considered themselves the masters and caretakers of their inferior subjects, much in the same way that a man is the master and caretaker of a pet dog.

A few brave men and women rose up and defied those tyrants. It wasn’t just the kings themselves that had to be dealt with; there was a host of supporters who had embraced loyalty to king as a moral duty, who fought tooth and claw to keep their position as human pets. Happily for our generation, the principle of equality gained a strong foothold and most of the kings were cast down. But the struggle over equality didn’t end there. Even here in the United States, the struggle continued. As democracy became fashionable and republics were established to take the place of kingdoms and empires, aspiring men and women saw new opportunities to seize power.

They didn’t try to call themselves kings, of course, that title had become too unpopular. Instead, they disguised themselves as the people’s representatives and then worked to convince people to give them the same powers that the kings had held. They worked to inculcate a blind acceptance of taxation as a moral duty, a right of government. They worked to seize control of the economy and “manage” the monetary supply. They expanded the power to make war, and, to our once humble republic, they grafted tentacles of empire. They worked to nationalize the education system, taxing the people to excess and then offering to give the money to the state school systems if they would adopt federal programs. Steadily they centralized power, taking it from the local governments and usurping it for themselves. It was a relatively gradual process. Every time there was a calamity of any kind, it was twisted and spun to support an ever increasing consolidation of power. War, sickness, economic troubles, crime, poverty, pollution, drug abuse, terrorism, and any other cause for alarm was used to consolidate more and more power to the federal government.

What does this have to do with equality? Each of the new powers they seized is predicated on the principle that all men are NOT created equal. These are not powers that an individual acting alone could rightfully exercise. No man has the right, for example, to insist that his neighbor fund his child’s education. No man has a right to force his neighbor to buy health insurance or give money to the poor. These powers, and others like them, are not derived from the people because the people never had them. They are powers usurped by government. Obviously the usurpation was not done by blatant appeal to force. Instead these grasping, aspiring men and women persuaded a portion of the people that they had power over their neighbors, that they somehow had the moral right to force them to support policies and programs that they liked or believed were economically expedient. They attacked the principle of equality by teaching the principle of tyranny by majority: that if they simply amassed enough votes, they could impose whatever regulation they thought best. This was a direct attack on human equality.

So here we are in the twenty-first century, and with the exception of a few figureheads and third world countries, the time of kings has nominally ended. But would our ancestors who fought so hard to throw off the yoke of kings be satisfied with our progress? We may not have kings in name, but we have men and women who claim powers typical of kings and who have far more effective methods of enforcing their commands than those ancient kings could ever have hoped for. It is high time for us to return to the principle of human equality and vote out these sneaky modern kings.

Free Labor, Free Land, Free Men

September 2nd, 2011 - by Elise

Have you ever wondered about the origins of the Republican Party? Well, I have. I am dismayed at some of the things the Republican Party is doing, and being affiliated with the Republican Party for my entire life as a registered voter, I decided to do a little research on what it was all originally about.

Step 1 of my research took me to how the party was formed and what the original Party Platform said. The Republican Party officially began in 1856. Prior to that, the grass roots meetings first began in Wisconsin and moved quickly to Michigan. Lincoln was elected as President of the United States on the Republican Party ticket just four years later. I find it amazing that a political party could grow that much in so short a time.

The official platform as set forth at the first Republican Party Convention–in Philadelphia–was primarily an anti-slavery document. The slogan that they advertised was “Free Labor, Free Land, Free Men,” free labor meaning no slave labor, free land meaning no slave plantations, and free men meaning, well, free men. (Wikipedia: Republican Party)

The opening paragraph of the official platform established the main ideals of the new party as being anti-slavery. The Republican Party declared that they were opposed to the Missouri Compromise, opposed to the present administration’s policies (Democratic President Franklin Pierce), opposed to the expansion of slavery, in favor of admitting Kansas to the Union as a free State, and in favor of restoring the Federal Government “to the principles of Washington and Jefferson.” (Republican Platform 1856)

There were a few things that surprised me. First was this: “it is both the right and the imperative duty of Congress to prohibit in the Territories those twin relics of barbarism — Polygamy, and Slavery” (ibid). I’m guessing that their feelings toward polygamy were partially tied to their ideas about Mormons. (Just a guess.)

The next thing that surprised me was that the Republican Party was eager for federal funds to build a railroad clear out to the Pacific Ocean as well as funds to improve the canal and harbor systems throughout the States.

There were very few things in the platform that hinted at the small-government ideals for which the Republican Party is known (or supposedly was once known). I’m anxious to learn just when the Republican Party began espousing those beliefs. So to summarize the original platform:
#1. NO TO SLAVERY
#2. NO TO POLYGAMY
#3. YES TO FEDERAL FUNDS FOR THE RAILROAD
#4. YES TO FEDERAL FUNDS FOR BUILDING CANALS AND SUCH

I can only confidently say that I agree with them on #1.

The next step in my research is the platform of 1872. Maybe in there I’ll find something more substantial that makes me feel like I belong in the Republican Party.

Another New Author

September 2nd, 2011 - by Quincy

As promised in a previous post, infoRipple will now include articles from several authors. Elise has agreed to write with us, and her first post will follow this one. Enjoy.

The Morality of Mooching

August 28th, 2011 - by Quincy

Is it wrong to accept government benefits? Or, put differently, is it wrong to accept money that the government has extorted from you and your neighbors? Liberty-loving people who believe that government redistribution of wealth is an unjustifiable abuse of power face a difficult problem when living in an ever-more-socialist society. On the one hand, we believe that individual self-ownership and human equality make it immoral for one person to take the property of another. On the other hand, we cannot avoid having our own property taken through taxation, devaluation of the money supply, and unjust regulations. It is easy to see that knowingly accepting the fruits of robbery is immoral, but what if you are one of the victims?

Many of the conservatives and libertarians who I know refuse to accept government welfare programs like WIC, medicare, medicaid, and social security. Doing so is disparagingly referred to as, “feeding at the trough.” I grew up with this attitude, and I decided to forgo many of the benefits for which I was eligible. Lately, though, I’ve been questioning whether this attitude is based on principle or just simple pride.

The average American worker loses a substantial portion of his earnings to income taxes before he gets paid a dime. For the self-employed, the extortion is delayed until taxes come due—at which time, if he doesn’t pay, he is subjected to heavy fines and imprisonment. Even after getting paid, he is taxed if he uses his money either to buy goods or to invest. Then, to add insult to injury, the government dilutes the money supply by printing more money—devaluing through inflation any money the worker has managed to keep. And that’s just a small piece of the picture. So, is it okay for the American worker to recoup some of his losses by accepting those government handouts for which he is eligible? I am inclined to say yes, but there are at least a couple of problems:

First, it is impossible to calculate how much the government has taken. Figuring out how much a person has paid in income tax is easy, but how can a person calculate how much he has lost through currency devaluation? How can he discover how much he has lost because of oppressive government regulations which drive up costs and stifle entrepreneurship? If a person takes more from the government than what the government has taken from him then he has profited from government theft.

Second, since government epitomizes wastefulness and inefficiency, even if a person were able to calculate the exact amount of property the government had unjustly taken, recouping that amount through government programs would cost far more. In other words, if you were able to calculate that the government stole $10,000 from you one year, recovering that amount through government programs would actually cost far more than $10,000 because of administrative costs. And, of course, your neighbors are the ones who would get stuck paying those costs. One solution to this problem is to recover only $10,000 minus X where X is equal to the administrative costs. But then we run into calculation difficulties again.

In the end, though, these are practical problems, not principled objections. The simplest way to deal with these practical problems is to take few enough benefits that you are certain that you haven’t helped rob your neighbors—maybe just take roughly the amount you lost in taxes. So long as you don’t take more than was taken from you, I don’t see any principled objection to taking government benefits since you are just recovering what belonged to you in the first place.

So what do you think? Is it wrong to take government benefits?

Jury Nullification

July 24th, 2011 - by Quincy

Founding-era Americans valued the right to a trial by jury as a key safeguard against tyranny. The Declaration of Independence listed denial of trial by jury as one of the “injuries and usurpations” that made it necessary to dissolve political ties with England. Later, it became a point of contention when the original draft of the constitution didn’t explicitly state the right to a jury trial. In a letter to James Madison on the subject, Thomas Jefferson wrote, “I will now add what I do not like. First the omission of a bill of rights providing clearly and without the aid of sophisms for … trials by jury in all matters of fact triable by the laws of the land.” Letter from Jefferson to Madison dated 20 Dec 1787. Jefferson’s concerns were later answered with Amendments VI and VII of the Bill of Rights: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury … In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved …”

Juries undoubtedly serve an important role in the legal system, but some people, both then and now, insist that a jury should do much more than impartially decide the facts of the case. They argue that a jury should have the power to nullify, or refuse to enforce, laws that it decides are unjust. This is called jury nullification. The basic idea is that since juries deliberate privately, and are not accountable in any way for their decision, judges have difficulty making them follow instructions and apply the written law. The practical outcome is that even if the government presents evidence proving every fact necessary under the law to establish guilt, the jury could still return a verdict of not guilty.

An organization called the Fully Informed Jury Association (FIJA) is among the most vocal supporters of jury nullification today. Its purpose statement includes the following: “The primary function of the independent juror is not, as many think, to dispense punishment to fellow citizens accused of breaking various laws, but rather to protect fellow citizens from tyrannical abuses of power by government.” And further,

When every American juror is aware of and permitted to exercise all of his and her rights, the final judgment of law will return to where it was always intended to be located…in the hands of the people. Once again our jury system will function as our country’s founders intended it to function as people’s final check against the government’s tendency to encroach upon the rights of its people.

Not surprisingly, however, jury nullification has many critics, especially among judges, and they have designed several tools to counter its use:

 Shhhhhh – No Open Argument for Nullification in Court

First and foremost is a rule in many jurisdictions that a lawyer who argues for jury nullification has committed an ethical violation—and may be subject to disbarment. Washington D.C., for example, has such a rule:

A lawyer defending a criminal case may zealously advocate for the acquittal of his client using any evidentiary argument for which he has a reasonable good faith basis. Current legal standards strongly disfavor jury nullification and prohibit express exhortations that a jury nullify the law. Accordingly, a lawyer may not, consistent with the rules of professional conduct, expressly urge a jury to disregard the law.

Opinion 320, Jury Nullification Arguments by Criminal Defense Counsel. Not only do state bar licensing organizations prohibit lawyers from openly arguing for nullification, judges explicitly instruct jurors that they must obey the judge when it comes to questions of law. For example judges in the 5th Federal Circuit give the following instruction to jurors at the outset of criminal trials:

I will decide which rules of law apply to this case, in response to questions or objections raised by the attorneys as we go along, and also in the final instructions given to you after the evidence and arguments are completed. You must follow the law as I explain it to you whether you agree with it or not.

 5th Circuit 2001 Jury Instructions, pg 5. (pdf)

Controlling the Evidence – The Relevance Rule

The restriction against openly asking the jury for nullification is made even more effective by restricting evidence and subsequent argument to issues deemed relevant by the judge. This means that if a lawyer attempts to present evidence that does not relate to an element of the law that the defendant is accused of violating, the opposing side can object to having that evidence presented to the jury. So, for example, if a lawyer defending a marijuana user attempted to introduce evidence that marijuana is mostly harmless to the user or that no one was directly hurt by the use, the prosecution could object and have that evidence excluded as irrelevant because it does not bear on the simple question of whether or not the defendant knowingly and voluntarily used marijuana.

Bifurcation – Dividing the Trial Into Two Parts

Another method used to combat jury nullification is to split the guilt phase and the sentencing phase of the trial into two different proceedings. The jury is first asked to determine whether the defendant did the acts of which he is accused. Only if the jury answers that question affirmatively is there any discussion of an appropriate sentence. Separating the phases of the trial helps to prevent the jurors from getting distracted from the issue of guilt or innocence by the pity and sympathy evoked by discussion of sentence severity. This tool is called bifurcation, and it is made more effective by the creation of statutory minimum sentences.

Voir Dire – Picking the Jury

Finally, judges and lawyers will almost always ask prospective jurors during the jury selection phase of the trial, called voir dire, whether or not they are willing to follow the instructions of the judge and apply the law as it is explained to them by the judge. If a juror hesitates or refuses, then the judge will strike the prospective juror and substitute a more compliant one in his or her place.

I have mixed feelings about jury nullification. Maybe, on this subject, my usual enthusiasm for libertarian ideas is dampened a little by my legal training and experience. On the one hand, I recognize that jury nullification could ideally prevent the enforcement of laws which are unconstitutional or simply unjust. But the tradeoff’s are costly. Jury nullification introduces inconsistency and inequality into a system which requires consistency and equality to function properly. In essence, it makes written law pointless. I’m not the only one who has misgivings. Judge Robert Bork called jury nullification a pernicious practice, and wrote,

To be ruled by each individual’s moral beliefs is to invite, indeed to guarantee, social tumult and disorder. The law alone is uniform, a composite or compromise of varying moral assessments, to be applied to all alike, regardless of personal attitudes … If an acceptable mix of freedom and order are to be maintained, obedience to law must be accepted as a primary moral duty.

Robert Bork, Thomas More for Our Season, 94 First Things 17-21 (June/July 1999). Judge Bork’s argument, as I understand it, is that when jurors are free to nullify the written law, the individual on trial is found guilty or not depending upon the moral and emotional reactions of the jury to the defense attorney’s presentation. This allows all of the prejudices and preconceptions of the jurors to taint the verdict, and introduces a great deal of unnecessary uncertainty into the legal system. One of the primary advantages of written law, uniformly applied, is that it helps avoid consideration of irrelevant facts, such as race, religion, gender, political affiliation, occupation, education, wealth, etc. when deciding guilt or innocence. Jury nullification, by making written law irrelevant, eliminates that advantage.

Judge James Wilson, an important member of the Constitutional Convention, also opposed jury nullification. He wrote,

In the cases and on the principles, which we have mentioned, jurors possess the power of determining legal questions. But they must determine those questions, as judges must determine them, according to law. The discretionary powers of jurors find no place for exertion here. Those powers they possess as triers of facts; because, as we have already observed, the trial of facts depends on evidence; and because the force of evidence cannot be ascertained by any general system of rules. But law, particularly the common law, is governed by precedents, and customs, and authorities, and maxims: those precedents, and customs, and authorities, and maxims are alike obligatory upon jurors as upon judges, in deciding questions of law.

James Wilson, Collected Works of James Wilson, vol. 2 The Subject Continued. Of Juries. Chapter VI (Kermit L. Hall & Mark David Hall eds. 2007). In other words, when a jury decides factual questions, we expect it to use discretion. We expect it to rely upon common sense and its members’ collective life experience to determine who is telling the truth and what really happened. But when it decides legal questions, it must apply the same “precedents, customs, authorities, and maxims” that bind judges.

The concept of obedience to precedent grows out of the belief, perhaps fanciful, perhaps not, that previous generations had some measure of wisdom to pass down to us. That the way they resolved legal issues then may be useful to us in deciding those same issues today. Obedience to precedent also grows out of the principle that the law should be consistent. That it should give fair warning to people of its expectations and requirements before penalizing them. Jury nullification necessarily disregards precedent; it gives no weight to the wisdom of past generations; it creates a situation in which no one can really predict from one case to the next whether the law will penalize behavior or not. All outcomes depend entirely upon the whim of the particular jury.

Ultimately, I guess my feelings about jury nullification are similar to my feelings about judicial activism. If jurors could be trusted to do justice rather than be ruled by emotion, prejudice, and popular feeling, then I would be happy to have them nullify unjust laws. But the simple truth is that that doesn’t happen. A good enough defense attorney can make almost any murderer to look like a Lennie Small and any thief to look like a Jean Valjean. With as many flaws as our legislative process has, I still think it is superior to a system where the law is created on an ad hoc basis by individuals or small groups. An essential part of an impartial legal system is that judges and jurors cannot be held accountable for their decisions, so the law must be made by someone else. The law must be made by individuals who are—at least in some measure—accountable to the people.

Federalism Protects Our Voice in Government

July 7th, 2011 - by Adam

In the United States, federalism is the division of powers between state governments and the federal government. In the Constitution, the federal government was given power to make laws in certain areas, such as national defense, bankruptcy, and the regulation of the value of money. (See U.S. Const. art. I, § 8.) The states retained power to make laws in other areas, such as education, welfare, and criminal law. Federalism is sometimes referred to as the vertical separation of powers. The horizontal separation of powers is the division of power between the legislative, executive, and judicial branches of government.

Many of the founders believed that the concentration of political power is dangerous to our liberty: “What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and power into one body, no matter whether of the autocrats of Russia or France, or of the aristocrats of a Venetian senate.” (Thomas Jefferson, letter to Joseph C. Cabell, Feb. 2, 1816.) The diffusion of power that occurs in a federalist form of government is a powerful check on tyranny.

Federalism also protects one of the privileges we enjoy as citizens in a representative government: our power to influence government decisions through our right to vote. When political power is consolidated into one body, the ability of citizens to influence government policy is diminished. The following example illustrates this concept:

Suppose that a number of years ago, the federal government entered an area of law that previously had been a province of the states – I will use agriculture in this example. In regulating agriculture, Congress and a federal administrative agency promulgated a variety of laws and regulations. For example, one regulation limited the amount of land farmers could dedicate to the production of certain crops. Congress also passed a law prohibiting states from regulating agriculture.

Tom is a farmer in Utah. Prior to the passage of the federal laws regulating agriculture, Tom could influence agriculture policy in Utah by voting for candidates for state office, such as candidates for the state legislature. After passage of the federal legislation, Tom could influence agricultural policy in the United States by voting for candidates for federal office, such as Congress.

When the federal government asserted control over agriculture, Tom’s ability to influence agriculture policy in Utah was significantly curtailed. Let us assume that there are 1,530,574 registered voters in Utah, (State of Utah Elections Office), and about 146,311,000 registered voters in the United States, (U.S. Census Bureau, Current Population Survey, November 1996, 2000, 2004, and 2008). Therefore, about 1% of registered voters in the United States are from Utah. As far as influencing agricultural policy in Utah is concerned, the votes of people from Utah are now worth about 1% of what they were worth when agriculture was a state issue. I note that in a state where the average number of voters is close to the mean of about 3 million (146 million registered voters in the U.S. / 50 states), the votes of people from that state on agricultural issues are now worth about 2% of what they were worth when agriculture was a state issue.

After Congress began to regulate agriculture, Tom’s votes for Congressional candidates could influence agricultural policy in the entire nation. However, Tom has little interest in influencing agricultural policy in other states. He has a much greater interest in influencing agricultural policy in Utah because it directly affects himself, his family, and friends.

When the federal government took the power to regulate agriculture from state governments, the votes of people from Utah regarding agricultural issues became diluted to the point of practical insignificance. People from Utah essentially lost the ability to control agricultural policy in Utah. The consolidation of political power results in the effective disenfranchisement of citizens. This disenfranchisement is a subtle erosion of individual rights, and occurs when the principle of federalism is violated.

When Congress entered the area of agriculture, people like Tom felt relatively powerless to influence agricultural policy in their states, and became less likely to vote or otherwise engage in the political process. We should not wonder at low voter turnout where the federal government has increasingly taken over functions that were previously allocated to state and local governments. Since the early days of this country, the federal government has greatly expanded its reach into many areas, including education, welfare, agriculture, labor, healthcare, the environment, and criminal law. Various problems arise when citizen involvement in the democratic process is reduced. For example, special interests are able to exert greater influence over the political process, securing results that benefit themselves, even while the populace as a whole is harmed.

Although the example above examines the division of power between the national and state governments, a dilution of an individual’s political power also occurs when a state assumes control of an issue that should be decided by a local government. Therefore, it is also important be aware of this issue in state and local matters.

In conclusion, the concept of federalism allocates greater political power to the individual because the smaller the political unit, the more influence each vote carries. Federalism encourages citizen participation in the governing process by protecting our voice in government – our ability to influence the political process.

 

*Note:  In the example above I make the simplifying assumption that all individuals have an equal ability to influence policy with their votes.  In reality, all votes do not have the same weight.  For example, in elections for the United States Senate, the votes of people from less populous states have a greater weight than votes of people from more populous states, because no matter how many people are in a state, each state can choose two senators.

New Author

July 6th, 2011 - by Quincy

During the past few months my posts have fallen off in frequency due to increased demands at work, so I’ve invited other authors to help keep the blog content fresh. Each of us has a different perspective, and we likely will disagree about an issue or two now and then, but the contributions will be thoughtful and interesting. Adam is the first to have accepted my invitation. His first post follows this one. Enjoy.

Military Members, the Constitution, and Lawful Orders

March 27th, 2011 - by Quincy

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.