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A Penrose Stairway: Why the Free Market
and Limited Government Are Incompatible,
by Ronald N. NeffTable of Contents for A Penrose Stairway
January 21, 2017
Chapter Eight
The Survival of Limited Government
IN THE FINAL PART OF HIS ARGUMENT Jacob Hornberger is concerned to show that limited government has not been defeated in the United States, although it has suffered some severe blows. He undertakes this argument by way of replying to free-market anarchists who (he says — again, I do not know who they are) claim that the loss of liberty in the United States demonstrates that limited government cannot work.
Hornberger disagrees. He begins by citing the many freedoms that still exist in the United States that citizens of, say, North Korea, do not enjoy. He points to the several states and says that all of them still have republican forms of government, as guaranteed by the Constitution, and that not even city governments have become totalitarian with police “rounding people up, incarcerating them without charges, and executing them.” He believes that he has refuted the claim that a limited government must become totalitarian by answering — forgetting the role of time in the affairs of men once again — that in the United States, it hasn’t happened yet. He is like the man in a bar who, on being told that if he keeps drinking martinis he will become drunk, orders another and replies, “I’ve had four and I’m not drunk yet.”
In a more substantive reply in support of his claim, Hornberger points out that when laws are passed at one level of government, they are followed at the lower levels. There is no “anarchy” of government levels following their own devices.
In particular, he argues that when a lower court arrives at a decision that is reversed by a higher court, everyone more or less accepts the higher court’s direction. And that, he takes it, is a sign that the rule of law, and hence limited government, survive in America.
It is a strange argument, because it seems to presuppose that the decisions of the higher court will be in accordance with the requirements of the night-watchman limited government as Hornberger understands it. Surely it is obvious that if the decision of the higher court is tyrannical (as, for instance, upholding the constitutionality of the income tax or Social Security), and if the lower courts follow the decision, it may be a sign that the rule of law exists in some form, but it is not a sign that the government is not a police state at all. It can as well be a sign that whatever limitations on government may exist are being circumscribed. It may be a sign that the lower courts are acquiescing in tyranny.
That the lower levels of government do not have the power or the will to resist the higher levels is not a mark that limited government is secure. Or at least, it is not necessarily the case. In this country, it has become a sign that tyranny is spreading and has become in some respect irresistible.
It is almost as though Hornberger has transformed the ideal of limited government from what we may think of as a “substance,” and made it into a “procedure.” As long as the procedures are being followed, we may believe that limited government is still thriving (if wounded) in America.
There is a parallel here to another position that Hornberger has voiced, though not in this series, namely, that it is through voting that we will ultimately roll back the welfare-warfare state. Let us note, however, that voting is not a natural right. It is a civil right, a procedural right, if you will, as are many of the rights, so-called, that Hornberger mentioned throughout his discussion as essential to the enjoyment of liberty and justice. If he is right, then the protection of civil rights is what ultimately makes a government “limited.” Not its structure. Not the defense of natural rights. The latter may be important and indeed useful, but in the end, it is the procedural, the civil, rights that define the state as limited.
But what are civil rights? Are they not the permissions given to us by the state itself? Are they not procedures which the state — even if by way of yielding to some popular outcry rather than by way of consideration for the common good — has defined, permitted, and extended? They are created by the state and defined by the state. It is madness to believe that the state will supply the means to its own limitation. It may allow limitations temporarily if it has overstepped itself and there is resistance or dissatisfaction brewing, but that is not the same thing as recognizing liberty. We may think of those limitations as the prunings of a gardener: if we see him cutting back the branches of his azalea bushes, it is not because he intends to be rid of the azaleas; he is rather helping them to flourish. The pruning is part of their health.
I do not say that the procedures Hornberger cites are not useful or do not offer some protection from complete despotism. What I say is that they are themselves part of the state system, and as such cannot be trusted in the long run. To see that they are part of that system, it is enough to see that whatever “protection” they purport to offer some, they are commands to others to behave or act in a certain way. They are not suggestions; they are not guidelines; they are commands. As such, they represent government’s iron fist, not always hidden in a velvet glove. The person who does not obey those commands — though he has not used coercion against a person who has committed no crime — will himself be subject to, as Hornberger might put it, “the overwhelming power of the state.”
Indeed, in part 4 of his essay, when he discusses the case of Kim Davis, a Kentucky county clerk who — in an act of nonviolent resistance to a court decision she deemed unjust — refused to issue marriage licenses to same-sex couples, Hornberger approvingly cites the use of that “overwhelming power” to achieve “finality of judgment.” Normally, a person who refused to do what her boss (in this case, a superior court) ordered her to do could be fired. Davis could not be fired or even required to resign, however, because she had been elected to her job, which just highlights additional problems with elections that even Lysander Spooner did not anticipate. It must be admitted that her refusal to perform as she was ordered to did not violate the non-aggression principle, yet she was jailed. In other essays, Hornberger has suggested that a defendant’s acting in accordance with the dictates of his conscience should play some part in a court’s decision — for example, in cases where defendants have released secret or classified information to foreign powers. (See “Patriotism and Conscience: The Edward Snowden Affair,” in the December 2016 issue of Future of Freedom.) But in this case, it is the achievement of “finality” that he celebrates. Thus must “civil rights,” i.e., procedural rights, be enforced, conscience and the possibility of injustice and nonviolent resistance to it being of lesser account.
(Nota bene: Davis was jailed for “contempt of court.” Referring to what was said earlier about crimes, I note that she was not charged with a crime against the person or property of another; she was charged with a “crime” against the state. Hornberger seems to have made his peace with the use of force against her ... for “reasons of state,” i.e., for the sake of “finality of judgment.” How easy it is to begin making exceptions to the non-aggression principle when the necessities for state functioning present themselves.)
That procedural rights are creations of the state implies that they are at the mercy of the state for definition. Habeas corpus and trial by jury have both experienced subversions, limitations on their use against the state. Such must be the vulnerability of all civil rights. And when the procedural rights have been put in the service of releasing criminals “on technicalities” (in Hornberger’s earlier words), the releases may represent a triumph of procedural (i.e., civil) rights for the defendants, but they represent menaces to the natural rights of the peaceful population.
Natural rights are completely different. They may be trampled and violated. They may be ignored and infringed. But unlike civil rights they cannot be re-defined, for the simple fact of the matter is that there is no agency on Earth that ever created them in the first place. We discover them; we do not create them or grant them. They exist independent of any action the state may take, independent of any definition or law that may find its expression in Congressional legislation or judicial reasoning. They are eternal; procedural rights exist at the mercy of mercurial men.
If it is true that it is the exercise of our procedural rights that makes us free, and that the struggle for liberty must be fought in an arena in which the state has set the rules, inconstant rules at that, then the struggle for liberty must be fought in an arena in which only the state can ultimately prevail.
Moreover, if, like Hornberger’s anarchist friend (whom we met in chapter one), we are going to try to “achieve freedom by getting down to the night-watchman state,” we must recognize that politics will survive in the night-watchman state. It makes sense for advocates of the night-watchman limited government to participate in political action. Their goal is a political goal, and the means for achieving a political goal is political action.
But the goal of free-market anarchism is not a political goal. We are aiming for a different kind of society, not a different kind of government. We free-market anarchists are often called utopians and defeatists, but I submit that if our liberty depends on procedural rights rather than natural
rights, that is the view that is utopian. And that is true defeatism. Nothing more can be expected from a Penrose stairway: Walk around and around on it; no matter how elaborate, elegant, or ornamented it is, you will never reach the goal of liberty. You can’t reach the top and you can’t find the bottom. You just keep retracing the steps of the countless millions before you who, like you, attempted to kick against the goad of the Law of Contradiction. The only solution is to jump off.
January 21, 2017
End of Part I
Mr. Neff's book consists of two parts. The complete work, including Part II, will be published as an e-book by Croatoan Books, a division of WTM Enterprises — its first title. Mr. Neff’s powerful critique of minarchism will be an impressive debut for our e-publishing effort.Mr. Neff is senior editor of The Last Ditch.
— Nicholas Strakon, editor-in-chief.
Table of Contents for A Penrose Stairway, Part One
© 2017 Ronald N. Neff. All rights reserved.
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