Mr. Foley, a partner in Schwabe, Williamson, Wyatt, Moore & Roberts, practices law in Portland, Oregon.
Mankind seeks certainty. Arguably, this quest derives, at least in part, from the magnificent and observable order pervading the universe. To fallible man, this illusive certainty provides the allure of security, avoidance of risk, the easy life and guaranteed attainment of personal goals. Thoughtful perception and insightful analysis reveals the fiction attendant upon this search: While the universe indeed exists in a state of perfect order, it is populated by individuals possessed of free will, fully capable of determining a course of conduct inharmonious with the law of nature. Consequently, imperfect people in a perfect world forecast fallibly and make mistakes; human actors approach certainty most nearly when they act in accord with the natural law of moral consequence. However, to the extent that an individuals’ conduct or desired consequence depends, in part, upon discerning and propitious action by other persons, such search for certainty proves elusive almost to the point of impossibility. Those individuals committed to the freedom philosophy often recognize and deride the liberal or statist who hankers after the supposed assurance of perfection in a world inexorably beset by the results of sinister men dealing inhumanely with their fellows. Guaranteed annual income programs, universal suffrage, mandatory public education, affirmative anti-discriminatory rules, and all-embracing regulatory codes of every kind and kin, among a plethora of examples, demonstrate this liberal miasma. The social engineer believes in the fable that an elite directorate elected by a universal majority ineluctably possesses the prescience, analysis, and motivation to order all human conduct in a manner most just and efficient. Unfortunately, few defenders of the moral private property order observe the mote in their own respective eyes. The voluntarist rightly recognizes the error of the socialist way; few take note and admit to a comparable misapprehension of their own. This essay proposes to unmask several common misconceptions prevalent on the right side of the American political spectrum in an effort to demonstrate that alien methodology and reflection does not belong exclusively to the statist or absolutist left. The minority who follow the freedom philosophy attain and exhibit varying degrees of intellectual sophistication in their eternal journey. Some of the more obvious and deficient examples of panaceas offered currently to inhibit or erode the excesses of state power deserve at ]east cursory mention. The Jury Nullification Doctrine Ambiguous state constitutional theory and questionable legal conceptual history afford the basis of the doctrine that a common law jury may override judicial instructions on the law in order to reach a just result.[1] This concept partakes of the more general populist belief that a majority of the community, left to its own devices, will inevitably reach the proper political or legal decision. The misconception, likely stemming from the foundations supplied by Jean Jacques Rousseau, errs significantly in its assessment of human behavior: Human beings, capable of seeking perfection, swerve from the proper natural order by virtue of a malevolent predilection to disharmony with fundamental moral law. Thus, a jury of peers may render its verdict upon irrational grounds; it may act out of envy, jealousy, fear or greed; it may do justice on one occasion and injustice upon another; it performs like the mill-run of us all, lacking particular virtue and insight. Indeed, a jury may very well behave like any other crowd, out of a peculiar madness which turns right action upon its head.[2] To entrust individual rights to a community jury is to rest civility and principle upon a slender reed. Judicial Protection of Individual Rights A related, ill-defined concept subsumes the judiciary as a repository of wisdom and purpose, existing as the ultimate defender of personal freedom. Adherents to this proposition seldom articulate their premises, but their basic belief appears from the course of action chosen to secure a desired result: The advocate persists in asserting a legal right, theory or doctrine with dogged determination, confident that if he receives a hearing before a judicial tribunal, the obvious and uncontradictable theory put forth will mandate full vindication of his position. Once again, the belief founders upon the shoals of reason posited from human nature. Judges are selected from the average cut of society by a political process, and no amount of tinkering with the structure or the system will alter fundamental human frailty or counteract the natural law that political choice produces the least desirable officeholder. Drawn from the community of human beings, the judicial officer possesses no greater wisdom, morality or innate sense of fairness than do his neighbors. He may act sagaciously on some occasions, but he will err often. Moreover, with exceedingly rare exceptions, judges secure substantial benefits from the plunder society and are, therefore, unlikely and inhibited defenders of human liberty. In addition, few if any courts comprehend and protect the freedom philosophy; judges fall prey to untoward beliefs and cliches of statist rule and act accordingly. To expect surcease in court is to ensure disappointment. Organized Campaigns to Convince Your Congressman A closely allied political theory exhorts the organization and use of pressure group politics for conservative ends. Modeled upon the political dynamics of the left, naive partisans are persuaded to conduct letter writing, telephone and postcard campaigns in an attempt to overwhelm legislators with an outpouring of righteousness. Once again, a superficial particle of truth leads to a grand gleaning of error. Socialist issue groups have secured significant benefits by coercive and mendacious political tricks; officeholders desire re-election—Potomac fever is a very real disease. Unfortunately, the countervailing position cannot find fertile ground in the same fields: The vast majority of officeholders, and the vast majority of citizens, are wedded to the statist philosophy and beholden to the political larder; hence the left can market its position quite easily to its constituent legislators, while the right starts with two political strikes: An unpopular position and an unresponsive politician. Reliance upon the conviction and commitment of legislators to act correctly when provided with facts and reason results in genuine dismay. Direct Legislation and Control of the Political Process The Oregon System, designed in large part by the inventive William Simon U’ren,[3] offered a populist solution to real or perceived inequities imposed by the standard legislative apparatus. A direct legislative system permits a fairly small number of citizen-voters to initiate a law, refer a legislative act to the people for approval, and to place on the ballot the question of removal or retention of an elected official. In theory, the mass of voters possess an edge in common sense, and the direct legislative system acts as a check or restraint upon inaccessible, corrupt or ineffective legislators. In fact, those who elect the public officials form the same majority which will defeat any measure designed to increase free individual choice. Ballot access (often hindered by strict normative impediments) means very little without the votes necessary for final success. Furthermore, if by chance a measure conducive to human freedom achieves passage, the statist majority still controls the machinery necessary to disembowel the interloper: Legislative circumvention, administrative oversight, and judicial obliteration all offer neat tools to restrict yearnings of free men and women. Populism awards little solace to the true believer in the free- dora philosophy, for the essential premise of populist doctrine—the inevitably intelligent will of the majority—provides no protection to the minority, save that granted by the whim of those who set the agenda and make the rules. The Constitutional Convention The Scandinavian Realists label the constitution of a state a grun’norm, the essential rule of law against which all other rules and orders of that nation must be assessed and measured.[4] The United States of America presented one of the earliest successful examples of a written constitution, a constitution unique in its underlying premise (elucidated by the Declaration of Independence) that each individual possesses inalienable sovereign natural rights to life, liberty, and the pursuit of happiness derived not from the state but from the natural and all-prevailing order of the universe. Respect for personal, non-aggressive free choice provides the hallmark of justice in a free society. Despite the remarkable decline in personal liberty and the rapid encroachment of government, the United States still offers the one best remaining hope for avoidance of a coming Dark Age and the survival of a free society. The obvious dangerous interventions by the state have called forth several conservative or voluntarist exhortations for the passage of constitutional amendments or the establishment of a constitutional convention to right wrongs per ceived and to further limit the development of the mandate state. Balanced budget amendments, human life amendments, tax limitation amendments, out of abundant examples, all offer their particular (and ordinarily well-meaning) proponents. The advocates on the right express assurance that a constitutional convention in, say, 1987, can and will proffer sufficient insight, talent and wisdom to correct the ambiguities and mistakes of 1787 and reaffirm our dedication to liberty. I dissent, not from some of the principles propelling the partisans of human liberty and the restricted state, but from the gullible suppositions which form the major premise of the proposals. The delegates to the constitutional convention of 1787 were truly remarkable and dedicated men; I see few today who approach their stature, and those few stand virtually no chance of selection to a 1987 convention. What empirical fact or rational theory affords any proof that delegates to a proposed constitutional convention will differ in person or in thought from the abysmal lot who inhabit our state houses, courthouses and Capitol Hill? Furthermore, what legal or moral restraints would proscribe the delegates to a proposed convention from exceeding the assumed limitation of purpose (e.g., a single issue convention to consider a balanced budget amendment) and rewriting the remarkable document which sets the standard for our country? Remember: The constitutional convention of 1787 broke faith with its selectors’ purposes to consider amendments to the Articles of Confederation, and instead presented a brand new design! In addition, their predecessors in the First and Second Continental Congresses ploughed new and luxurious conceptual grounds by declaring and successfully acting out a right of revolution not necessarily in accordance with the desires of those who directed them to convene in Philadelphia. Given the proclivity of our society with its surfeit of rascals in high places, resort to a constitutional convention possesses an unacceptable risk of danger to the remaining fabric of our free society. Tax Avoidance in Ten Easy Lessons The outlandish growth of the tax assessment and collection apparatus, with its concomitant invasion of individual rights, has produced an astonishing array of theories designed to cut taxes and limit government in the process. The schemes presented to a credulous portion of the public range from the harebrained to the astute: Imperfections in the adoption of the Sixteenth Amendment, the assertion that wages do not constitute income, the employment of “family,” “pure equity” or “constitutional” trusts to avoid all taxation, and the contention that only gold and silver (not fiat currency) constitute money and taxable income, represent but four of a virtually countless number of variations. Promoters of particular theories parade about the country (when not abiding in jail or in civil court as a result of their positive-law transgressions), selling their hypothetical concepts from lecturn or bookshelf for $14.95 or some such nominal sum. Again, the peddlers of tax escape nostrums (and most of their followers) miserably fail to differentiate between able theory and political reality. For example, legal and constitutional history provide substantial proof that the draftsmen of Article I, Sections 8 and 10, of the Constitution of the United States, intended to deny to both national and state governments any power to issue paper money.[5] Nevertheless, any credible observer of the passing scene during the past century must recognize that official acceptance of the theory that state-sanctioned trade goods (“money”) must be related to a precious metal standard will occur far in the future, if at all. The looter state garners unyielding support from myriad beneficiaries, e.g., public school teachers, unionists, bureaucrats, judges, politicians, and businessmen of the limousine liberal ilk; such pre-reflective men and women own little motivation and scant ethical inclination necessary to stand aside from personal benefit and to radiate principle. No matter how principled and accurate one may be in proclaiming a legal theory resting upon sound economic and historical fact, acceptance of that theory will and must depend ultimately upon recognition, if not by a majority of voters under a universal suffrage system, then at least by an elected and effective majority of politicians. Sparse chance exists for adoption of any proper or fair system of taxation given current political dynamics. How to Make a Million Dollars Investment savants of the conservative tinge may actually outnumber political pundits and self-styled tax experts appealing to the right. Many of this genre combine scant economic knowledge with newborn conservatism or libertarianism, seasoned oft-times with a dash of religious fervor. They produce an abundance of newsletters and reports, normally coupled with investment seminars, lectures and conferences. Prolific charts and graphs illustrate their convoluted prognostications. Two earmarks identify many of these financial populists: High prices of literature of low order, and almost universally bad writing. As with the soothsayers of the tax revolution, many of the investment advisors of the market philosophy (as well as most of their traditional brethren) commit a fundamental series of errors. First, they assume that history recurs precisely. Second, they rely upon esoteric technical charting as a tool of prediction. Third, they attempt to apply Austrian economic principles to short-term market investment strategy without a fundamental comprehension of those principles. Fourth, they overlook the fact that right action does not always assure success in a market peopled with myriad volitional human beings exercising free (or partly free) choice, where some (if not most) of those actors operate upon irrational or incorrect premises. Fifth, they interpret an occasional successful forecast as evidence of infallibility and as a demand for self-laudation. Investment by finite individuals proves difficult in the best of times. Even the most committed believer in personal liberty must acknowledge that his quest for knowledge is incomplete and endless. By virtue of our human nature and our gift of free choice, we necessarily forecast inaccurately; even a perfect belief on my part in the moral private property order will not assure a like acceptance by even one other investor, and in a market, supply, demand, and price by definition result from a concatenation of choices which are mistaken or irrational, at least in part. William Rickenbacker has admonished that use of the ubiquitous computer demonstrates that no chart theory or technical analysis provides any useful prediction expertise.[6] Knowledge of human nature and observation of fundamental principles delineate the most acceptable and valuable talents for the investor—and no pedant or medicine man can prescribe large doses of those commodities. Perfection as Illusion Consider two disclaimers. First, do not interpret this criticism as directed against fundamental ideas. Those who believe in individual choice and the limited state may well differ upon various issues—indeed, the central tenet of this essay focuses precisely upon this very element, that men and women interpret phenomena and concepts in disparate ways, that in the words of St. Paul, they view truth, if at all “through a glass darkly”.[7] Second, do not assume that the fundamental charge levied here applies only to the political/economic right. The criticism attaches universally to all persons of whatever persuasion. The liberal obsession with fatuous omniscience and the presumed perfectibility of mankind appears so patent and foolish as to require no extended comment. A leading liberal dogmatic stated the proposition concisely:
The Senator [Wayne Morse] was totally committed to the perfectibility of the Democratic political process. Particular programs and policies could be argued as right or wrong, but not the process. He counted it the one authentic and distinguishing American characteristic. The essence of his political idealism was a devout belief in the ultimate rationality of the electorate.[8]
The point which escapes those who replace reason with rage is the universality of the trait. Self- righteous satisfaction does not become any of us.
What, then, of the perfect illusion? It is simply this: In a world dominated by bloc or aggregrate thought, it is deceptively easy to overlook the individual, and to do so virtually compels the error of belief that men act as hordes or groups and not as persons or individuals. The Austrian School perceives the ill-advised Keynesian focus upon macroeconomics to the obscurity of the single acting man or woman who produces, earns, saves, consumes, and thinks. Nevertheless, proponents of that primal school of thought sometimes forget to transfer the fundamentals there recognized into other disciplines.
The philosophy of individual liberty necessarily focuses upon, and dignifies, the individual human being as an actor causing consequences, accountable for his conduct, and (by virtue of his signal ability to select from an array of choices) imperfect and mistake-prone in the sense of being incapable of universally determining a desired result. Dr. George Charles Roche Ill concludes that one of the most telling legacies of Frederic Bastiat was his insistence “that men were imperfect and unique, that freedom could be found only by protecting the individual’s life, liberty, and property from the predations of other men, organized or unorganized.”[9]
Both the socialist of the left and the anarchist on the right fall prey to the self-same misconception concerning the fundamental nature of mankind: Both the true socialist and the philosophical anarchist must agree (whether they concede the point or not) that the minor premise of their fundamental syllogism is that man is perfectible. The socialist contends that mankind, while fallible now, may achieve a perfect society of perfect grace and freedom if only the universal electorate will choose the right leader and allow him to ira-pose his plan of communal ownership of all assets and his egalitarian book of rules.
The anarchist, on the other extreme of the political spectrum, decries the mandate state, yet assumes that all governmental functions may be performed in a privately organized society upon a rational basis; the anarchist necessarily posits, for example, that private courts will adjudicate all controversies necessarily arising from real or supposed collisions of rights between competing individuals, yet he offers no solution to avoid civil chaos attendant where one party to the private litigation refuses to accept the arbitrator’s decision.
The Illusion of the Left
The illusion of the left results from the belief in codification and prior restraint, of channeling all human action into “acceptable” codes of conduct determined by an elite, no matter how chosen. The illusion of the right results from a like assumption of perfectibility: The populist assumption that a community jury of peers may ignore legal screening processes and inevitably perform acts of untrammelled justice, the belief in the judges of today as guardians of individual rights, the creed that an informed and rational minority may influence liberal controllers of the political apparatus, the dogma that others will accept the notions of the true believer, and like fallacies too prevalent to mention.
History unfolds. Men and women act, and at times, they act unwisely, inhumanely, in contradiction to the natural order of things eternal. Because the world consists of many acting beings, individuals whose own internal scale of subjective values constantly changes, and because time is unfolding with the historical process, history does not inexorably repeat in absolute detail. Because mankind is not possessed of infallibility and perfect foresight (or even perfect hindsight, at least in the assessment of causal consequence), our choices consist of imperfect selections among alternatives.
Even granted the perfect philosophical foundation, the perfect illusion will still occur: Consistent application of truth eludes us all; and, each individual possesses significantly differing fundamental value structures impelling each person’s course of conduct so that the hypothesized perfect choosing being must necessarily find his sought-after certainty impeded at least in part by the interplay of other actors on the stage.
This essay presents no startling vision. It seeks merely to underscore the inevitable danger in reposing ultimate faith in a doctrine uttered by another fallible being, no matter how persuasive and articulate the protagonist may appear, nor how reasonable the price he charges for the dispensation of his nostrum. The psalmist David, 2500 years ago, cautioned his followers to “put not your trust in princes, nor in a son of man, in whom there is no help.”[10] And the sage of Kirkcaldy, Adam Smith, noted that the quintessential teacher, Socrates, had chided the inconsistency of those who profess to offer the magic golden key to all understanding:
Isocrates, in what is called his discourse against the sophists, reproaches the teachers of his own time with inconsistencies. “They make the most magnificent promises to their scholars, says he, and undertake to teach them to be wise, to be happy, and to be just, and in return for so important a service they stipulate the paultry reward of four or five minae. They who teach wisdom, continues he, ought certainly to be wise themselves; but if any man were to sell such a bargain for such a price, he would be convicted of the most evident folly.”[11]
Perhaps recourse to the teacher, Socrates, provides one who seeks certainty and truth with a hint of effective methodology: Socrates advised those who sought him out that: “I know not; but I know that I know not.” Apprehension and appreciation of the doctrine of human liberty, of the moral private property order, is a full-time, lifetime task, a task which proves effective only when the scholar concentrates upon his or her own improvement and leaves others with the task of their personal advancement. []
1. The eminent nineteenth century anarchist, Lysander Spooner, provided the most provocative advocacy of a constitutional doctrine which would effectively support the theory of jury nullification. See, Lysander Spooner, No Treason: The Constitution of No Authority (Ralph Myles Publisher, Inc., Colorado Springs, Colorado: 1973) (original publication date 1870). The Oregon Constitution, among others, provides an example of a poorly articulated basis for the state doctrine of jury nullification. See, Oregon Constitution, Article I, Section 16.
2. Charles Mackay, Extraordinary Popular Delusions and The Madness of Crowds.
3. The Oregon System encompassed the initiative, the referendum, the recall, direct election of Senators, and a state Corrupt Practices Act. It also provided for a presidential primary and for local home-rule. See, for an erudite legal perspective on the adoption and early operation of the Oregon system, James D. Barnett, The Operation of The Initiative, Referendum and Recall in Oregon (The MacMillan Company, New York 1915); see also, Joseph Gaston, Portland, Oregon, Its History and Builders (The S. P. Clark Publishing Co., Chicago, Portland, 1911).
4. Hans Kelsen, The Pure Theory of Law (1934-35) pp. 517-523.
5. See, Constitution of the United States, Article I, § 8, 10 which developed out of the dele gates’ distaste for the “aggressions” of paper money as noted by James Madison, Journal of the Constitutional Convention of 1787 for June 19, 1787. See generally, Max Farrand, The Records of The Federal Convention of 1787 for May 29, June 6-8, 18-19, July 17, 19, 21, August 15-18, and 28. The vote of August 16, 1787, as detailed in the proceedings of the Constitutional Convention, demonstrate that the delegates prohibited the emission of bills of credit as a means of preventing fiat currency. See also, Luther Martin, Genuine Information, Delivered to the Legislature of the State of Maryland on the Proceedings of the General Convention Held at Philadelphia. Alexander Hamilton declared “* * * the emission of paper money * * * [is] incompatible * * * with the principles of good government”. The Federalist No. 80.
In his preface to the debates in the Convention of 1787, James Madison observed that the recent history of the colonies documented the need for restraint upon use of paper money. III Documentary History of the Constitution, 1-7, 796 et seq. The point was reiterated in James Madison to—; 1833 Hunt, The Writings of James Madison, IX 522. See also, Ontario Bank v. Lightbody, 13 Wend. 103, 111 (New York 1834) quoting from Mr. Gallatin, an early statesman, in his essay on The Currency and Banking of the United States, p. 29. See also, Craig v. The State of Missouri, 4 Pet 410, 432, 434-436 (1830); see also, Charles Prather, Money and Banking (Chicago: Irwin, 1941) 205.
The Supreme Court of the United States long ago decided that the Constitution prohibited the issuance of paper money by the states under Article I, Section 10. Lane County v. Oregon, 7 Wall. 71 (1868). This case has never been overruled.
The eminent early Chief Justice John Marshall recognized that the Constitution absolutely and expressly forbade paper money and legal tender laws. Sturges v. Crowninshield, 4 Wheat 122,205 (1819). The eminent jurist and scholar, Mr. Justice Joseph Story, clearly differentiated between specie (money) and bank notes in United States Bank v. Bank of Georgia, 10 Wheat 333,347 (1825). The Marshal] Court reiterated its stand in Craig v. The State of Missouri, supra, 4 Pet. 410, 432, et seq. (1830). The Roger Taney Court continued holdings which undergirded this position in Gwin v. Breedlove, 2 How. 29, 15 U.S. 16, 22 (1844) and United States v. Marigold, 18 U.S. 261,263, 9 How. 560 (1849).
A phalanx of Supreme Court decisions in the Civil War Era culminating in Hepburn v. Griswold, 8 Wall. 603 (1869) re-emphasized the point. Indeed, Chief Justice of the United States Salmon P. Chase recognized his own error in the issuance of greenbacks during the War Between States as Secretary of the Treasury for President Lincoln. Hepburn v. Griswold, 8 Wall. at 625- 626.
No constitutional convention was called and no amendment wrought in the fabric of the great document which governs our land, yet two Republican appointments to the Supreme Court of the United States within a short period of time during the Reconstruction Era altered the universal judicial construction of the Constitution, a fracturing of logic which extends to this day. See, Knox v. Lee, and Parker v. Davis (The Legal Tender Cases), 79 U.S. (12 Wall.) 457, 20 L.Ed. 287 (1870) and their illegitimate offspring, Juilliard v. Greenman, 110 U.S. 421, 4 Sup. Ct. 122, 28 L.Ed 204 (1884).
6. William Rickenbacker, “Methods of Picking Stocks,” Private Practice (May 1975) pp. 4546.
8. Willard Wirtz, “An Attack on Political Pessimism”, 60 Old Oregon, (No. 1; Fall 1980) 17.
9. George Charles Roche III, Frederic Bastiat: A Man Alone (Arlington House, New Rochelle, New York, 1971) 233. For another excellent study of influence of Bastiat, see, Dean Russell, Frederic Bastiat: Ideas and Influence (The Foundation for Economic Education, Irvington-on-Hudson, New York 1969).
11. Adam Smith, An Inquiry Into The Nature and Causes of the Wealth of Nations, (Heirloom Edition, Arlington House, New Rochelle, New York), Book I, pp. 149-150.
Ridgway K. Foley Jr.
Ridgway K. Foley Jr. is a litigation lawyer who is passionate about individual and economic freedom, and has authored numerous scholarly articles on related subjects.