Thursday, July 24, 2008

Read Kudlow

Just a quick note to my army of readers (!): if you don't read Larry Kudlow's blog, you should. His latest entry on the mortgage bailout and prospects for a "drill bill" is excellent. Check it out.

Wednesday, July 23, 2008

Popular Sovereignty as Pitfall

As some of you are aware of, I am working on (in fact, nearing completion of: word count is now approaching 100,000) the constitutional law volume of Stahl's Philosophy of Law. Just this morning I translated a section which, at first glance, seems "over the top" in terms of its utter rejection of the concept of popular sovereignty. But the more I think about it, in the light of my earlier posts regarding the machinery of manipulation, the more I can see the truth in what Stahl is arguing. And that truth is this: that popular sovereignty severed from a confession of faith and subjection to Almighty God is the most powerful means the machinery of manipulation has to work its own will. The version of popular sovereignty Stahl argues against is the version put forward by Rousseau and the French Revolutionaries -- but how much of it was likewise in the minds of men such as Thomas Jefferson? America has founding fathers such as John Adams, James Madison, and Alexander Hamilton (not to mention the de facto supreme importance of George Washington) to thank that popular sovereignty did not take the turn there that it did in France. But how much of the theory was to thank for that, and how much was simple stubborn adherence to received institutions, even in the face of theory? And how much of that theory has since been used to corrupt and undermine the institutions making for America's greatness? That is the question facing Christians who wish to be faithful to the republican tradition not as shibboleth but as historical artifact from God's hand, and therefore answerable to Him.

Here is the relevant text (State Law and the Doctrine of State, §. 147):

As is the case with every untruth, the doctrine of popular sovereignty is not even in agreement with itself, not even capable of implementation in terms of its own principle and standard. It is already an impossibility to determine the will of the people. What is to be recognized: the decisions of the chamber, the declarations of journals and associations, or the shock of insurrection? Even with the general acclamation of the primeval assembly, in view of the fact that its composition changes through death and accession to voting age up until a result is determined, the end result will no longer be the will of the now-existing people. There is further the undeniable consequence: when the popular majority is not bound to the given ruling authority and fundamental law, the minority and the individual is no longer bound to the popular majority. For then the law of majority vote is itself a sort of fundamental law. And thus it is not the will of the people but the will of each party and every individual that is sovereign. In the end, it is obscurity from the start regarding the concept of sovereignty upon which this doctrine is constructed.

For sovereignty is precisely the state power in its center, by which it in uniform manner joins, supervises, leads the functions which unfold in manifold directions; it cannot (as Rousseau asserts) be separated from government and exist apart from it, but is itself the innermost moving power of government. Therefore only a self-conscious being unified in itself can be sovereign, and therefore only a personality can be so in the fullest sense. Even the popular assembly in the republic has the capacity for sovereignty only through the artificial imitation of this unity by means of ordered forms and through a supplementation by the natural personality of the magistracy (§. 130).

But that the collective mass of individuals, thus the people, precisely apart from the unity of its constitutional order, according to which it beforehand is subject to authorities, is to be sovereign, is factually impossible. This is why with the doctrine of popular sovereignty one understands sovereignty not as a power in the state organism, which is what the concept truly is, but a power apart from and over the state organism. Thus also not a power restricted by law, which is what sovereignty always is (§§. 74, 75) but a completely unrestricted arbitrary power. The people is not to be sovereign, i.e., state power, but a power over the sovereign or the state power and over the laws of the state, authorized to dismiss the state power at any moment and appoint another, to abolish the law and issue another. Popular sovereignty thus is a power of the people not to rule the state but continually to eliminate the state and constitute it afresh. And herein lies the self-deception of the originators and the proponents of this doctrine, that they opine that the people can exercise an absolute power accruing to it apart from and over the state order, which yet is something ordered; for from whence are order and law to come to it, in that its essence is not to be bound to order and law?
Popular sovereignty is the denial of order not merely in factual consequences but already in the concept itself. With it one does not proclaim, as he fancies he does, another relation of rulership in the state, but the abolition of the state, societal chaos.
At its deepest level, the doctrine of popular sovereignty is precisely the reversal of the ethical world-order. In that the people subject themselves to no order and personal authority as something given over them, the human will is the lord of the ethical world rather than an obedient member thereof.

Tuesday, July 15, 2008

Barack Obama and the Ugly American

Democrat presidential candidate Barack Obama has compared Americans unfavorably with Europeans, which seems to be a recurring theme among Democrats in general. This time it has to do with language. When Europeans come to America, says Obama, they speak English along with their French and German. But when Americans go to Europe, all they can say is "Merci beaucoup." I guess that assumes they all go to France when they go to Europe. But be that as it may, the point seems to be, Europeans can speak the language of the country they visit, while Americans can't.

That is not the case. In fact, it is a ridiculous argument. An indication of this is given in Obama's further corollary to this supposed American language deficit: America doesn't need an official language, because immigrants all automatically learn English; rather, Americans should all teach their children Spanish. Perhaps Obama should also tell Europeans the same thing. Because I have yet to encounter a non-Spanish European who could also speak Spanish.

When Europeans visit Spain (which they do in droves), do they speak Spanish? Perhaps the equivalent of "Merci beaucoup" but not much more than that. Not to mention when they visit Latin America. What language do they speak then? English. How chauvinistic! And how about when Europeans visit Portugal, or Denmark, or the Netherlands, or Poland, or the Czech Republic, or Italy, or.... What language do they speak? Either their native German or French (if that's where they're from), or ... English.

I live in a border town in the Netherlands -- Germany is just a few kilometers up the road. What do Germans speak when they come over here? Dutch? HA HA HA. No dice. They speak German, and they expect you to understand it. Or at least they hope you do.

At least Americans have the decency to speak English....

Tuesday, July 8, 2008

Bowyer, the Common Law, and Monarchy

One of the writers I regularly pay attention to in matters of economics is Jerry Bowyer, chief economist of Benchmark Financial Network, regular contributor to National Review Online, CNBC, and regular guest on that network's Kudlow and Company. Jerry usually has interesting things to say. Lately he has been emphasizing the importance of the mineral deposits located in Pennsylvania, where he lives. He has been making some telling points regarding the importance of these deposits in the current climate of energy shortage and government regulation.

But his latest offering misses the mark somewhat. Not that the point he is trying to make is wrong; it isn't. The article of which I speak is Back to Monarchy in Land Rights?, in which Jerry argues for the benefit of the common-law regime of mineral rights, whereby private landowners enjoy the rights not only to the surface level of their property but to all underlying levels, extending straight downward. (It used to be that property rights also extended straight upward, but the government has usurped those rights in order to regulate air traffic.) This regime is contrasted by Jerry with the regime of "monarchy," whereby the crown reserved the right to all mineral deposits, so that landowners could be dispossessed of the resources lying below the surface of their land, and that without compensation. Thus, Jerry avers, "not surprisingly, farmers went to great trouble not to find subterranean resources, and to hide any they’d uncovered."

This was the system of the Spanish crown, and was exported to the countries Spain colonized. Thus, in Mexico, in Venezuela, the oil is the state's, and the state exploits the oil fields. Contrast this with Pennsylvania, where private landowners hold the rights to the oil under their lands. Because mineral rights (including oil) accrue to private landowners, the first commercial oil well was located in Titusville, Pennsylvania. Private enterprise exploits resources when and where they are needed, as opposed to government agencies, which act not in terms of market needs but in terms of elite policy. "Central planning environmentalists cordon off great swaths of energy-rich property from the use of any consumers except a few disproportionately wealthy eco-tourists."

All of this is well and good, accurate and to the point -- except for one thing. And that is Jerry's inveterate obsequiousness to natural rights ideology in general and Thomas Jefferson in particular, to which he attributes this common-law regime of private property rights. Apart from the fact that Jefferson did nothing for property rights, not even mentioning them in the Declaration of Independence -- which is his sole contribution to the institutions of America -- the common-law regime in which these property rights were embedded was imported from England, and the English common law is royal law.

That's right. Common law is the product originally of the English monarchy. Including the regime of mineral rights Jerry is so quick to ascribe to the Man from Monticello. Actually, the matter is even more cumbrous than that. The convention of property rights extended straight up into the air and straight down into the ground is originally derived from Roman law (which English law absorbed early on, prior to any so-called Reception: see here.) From Cawood and Minnitt, A Historical Perspective on the Economics of the Ownership of Mineral Rights Ownership [I'm not sure if that second "ownership" in the title is intended or not!]:

However, we [South Africans] inherited the principle rule of property law from Roman Common Law. This principle stated ‘Cuius est solum eius est usque ad coelum et usqne [sic] ad inferos’-Accurcius [sic], 13th century—meaning the owner of the land is not the owner of the surface only, but also of the ‘fruits of the land’ extending to the space above (up to the heavens) and below it (to the centre of the earth). In modern terminology this simply means the
recognition of private property rights (p. 370).

Thomas Jefferson did not discover the principle of private ownership of mineral rights. Those rights were enshrined in Roman law and later royal law, at least in England, but not exclusively there. After all, the Roman law served as a common law for all of Europe, and it took special legislation to overturn its principles. Some monarchs availed themselves of that. As are governments of every stripe today. All one has to do is run a Google search for mineral rights and one will see just how complex the situation has become, with original common law rights being undermined by state legislation (as for instance with rights to air space). See for instance this discussion.

Neither Thomas Jefferson nor natural rights had anything to do with the entailing of mineral rights onto private property. It was a common law and Roman law principle. Jerry should stick to the economics of the issue and leave the history to those who are not so interested in pushing a particular ideology.

Saturday, July 5, 2008

Deconstructing the Declaration

America has now celebrated her 232nd birthday, and the world celebrates with her. If any secular nation could be a "city upon a hill," as John Winthrop, founder of the Massachusetts Bay Colony put it, then America is. The greatest nation the world has ever seen, whether in terms of wealth, power, influence, liberty, equality, tolerance, or true religious devotion. America is the fruit of the pan-Western common law tradition, and the single greatest hope this world has for the continuation of that tradition.

That being said, there are some issues that make the celebration problematic. Not that America is destroying the planet, using up all its energy, engaging in cowboy diplomacy, invading defenseless little dictatorships. All of that is perfunctory pusilanimous posh. Not to mention poppycock. No, what I have in mind is something of another order. It is the ideology in terms of which the American Revolution was conducted, as enshrined in the Declaration of Independence. The rhetoric of the Declaration is unforgettable, as high-flown as there has been in the history of nations; but for all that it is dangerous. It contains in it the seeds of the liberalism which we as conservatives must oppose with might and main. I do not say that liberalism originated with the Declaration; I do say that the resort to the Declaration to defend America and her principles against the attacks of liberalism hamstrings that defence.

Let me get specific. I wish to address perhaps the most important clause in the entire document. It is contained in the second paragraph, and runs thus:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The argument is that rights precede government, that government is instituted to protect these rights, that these governments derive their powers from "the consent of the governed."

So then, rights are the source of law. The problem is, everybody has an opinion about rights, what they are, how far they extend, what they encompass. We now have rights to transgender operations, to homosexual marriage, even polar bears have rights to be protected from your carbon dioxide emissions. But according to this doctrine the law cannot contravene these rights. This is the heart of judicial activism. When rights are the source of law, judges, not legislatures, have the legislative power.

But for me the really serious problem in this formulation is this, that government derives its powers from the consent of the governed. This is to turn matters on their head, both historically and logically. Historically, the governed derived their powers from the consent of the government, i.e., the sovereign. Rail against this as much as you like, it is the historical fact. Liberty is an outgrowth over time of subjects gaining ever more freedoms in a covenantal process with the sovereign, in exchange for services, i.e., tax revenues. That is the nutshell history of the growth of representative institutions. So what happened in the American Revolution is that historically acquired liberties, derived from the consent of the sovereign, were being infringed, thus breaking the historical covenant between sovereign and subject. This is a far cry from government deriving its powers from the consent of the governed.

But even logically the statement makes no sense. For if the governed give power to the government, then what is governed and what is government? Government is instituted to rule over citizens and subjects, but if the citizens and subjects have to consent to that rule -- otherwise they may overthrow it -- then where is subjection? We are then all chiefs and no Indians. We then end up with pandering government acting as if it is there to meet all your wants and needs, all the while making you completely dependent upon it. No, government is instituted by God and invested with power by Him, and those powers are not to be disputed by the subject nor the citizen. Those powers are established in terms of the outline given by Paul in Romans ch. 13. They do not require the consent of the governed. What is required is the keeping of covenants, whereby liberties acquired by the governed must be respected, whereby life, liberty, and property must be upheld, not by virtue of human right but by virtue of the Ten Commandments. Citizen participation in government is a great good, and a fruit of the history of liberty; it is not a declaration of the governed as the source of the powers of government.

If Christians and conservatives do not learn these lessons, and learn them fast, I fear the Republic's days are numbered.