28
Jun
2010
Road to Serfdom
I’m not naming names, but some people lately have been questioning whether we’re on the road to serfdom. Apropos of that, is this article right? Does this bill really give Obama the authority to shut down the Internet for 4 months? And even if so, what exactly does that mean?
I realize trusting Free Advice commentators to tell me the truth is almost as risky as trusting Alex Jones, but I’m a busy guy.
No.
I’m truly not being a wiseguy here, Gene. What exactly is your stance on this thread? That this particular bill doesn’t give Obama the authority to do it, but in any event it would be redundant to do so, since the president has had this authority since 1789?
I don’t see the “4 months” number anywhere in the bill, but I find this, which when you pay close attention to the wording is very alarming.
Section 249: If the President determines there is a credible threat to exploit cyber vulnerabilities
of the covered critical infrastructure, the President may declare a national cyber emergency, with
notification to Congress and owners and operators of affected covered critical infrastructure.
The notification must include the nature of the threat, the reason existing security measures are
deficient, and the proposed emergency measures needed to address the threat. If the President
exercises this authority, the Director of the NCCC will issue emergency measures necessary to
preserve the reliable operation of covered critical infrastructure. Any emergency measures
issued under this section will expire after 30 days unless the Director of the NCCC or the
President affirms in writing that the threat still exists or the measures are still needed.
Emergency measures imposed by the Director must be the least disruptive means feasible, and
such emergency measures cannot be used to set aside the requirements of the Wiretap Act, the
Electronic Communications Privacy Act, or the Foreign Intelligence Surveillance Act of 1978.
This section does not authorize any new surveillance authorities or permit the government to
“take over” private networks. While complying with the mandatory emergency measures,
owners and operators of covered critical infrastructure will have the flexibility to propose
alternative security measures that address the national cyber emergency and, once approved by
the Director, implement those security measures in lieu of the original mandatory emergency
measures.
You didn’t see the subsection on shutting down recalcitrant Austrian economist bloggers?
It was always intended by the writers of the Constitution that in an emergencies the federal government would have whatever powers it needs to have to meet the emergency: “There are certain emergencies of nations in which expedients that in the ordinary state of things ought to be forborne become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them. ” — Hamilton
In an emergency, the president has always had the power to shut down whatever communications networks he thought needed to be shut down.
Gene, do you think Hamilton represents the sum total of the Founders’ wisdom and views of what the Constitution means?
Madison said much the same thing in another Federalist. I’ll look it up if you’d like.
Don’t spend a lot of time on it, but yeah, I’d be curious to see it. I may have to tag Tom Woods though.
The quote is from Federalist #36. http://www.constitution.org/fed/federa36.htm
The full paragraph is this:
“As to poll taxes, I, without scruple, confess my disapprobation of them; and though they have prevailed from an early period in those States1 which have uniformly been the most tenacious of their rights, I should lament to see them introduced into practice under the national government. But does it follow because there is a power to lay them that they will actually be laid? Every State in the Union has power to impose taxes of this kind; and yet in several of them they are unknown in practice. Are the State governments to be stigmatized as tyrannies, because they possess this power? If they are not, with what propriety can the like power justify such a charge against the national government, or even be urged as an obstacle to its adoption? As little friendly as I am to the species of imposition, I still feel a thorough conviction that the power of having recourse to it ought to exist in the federal government. There are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them. The real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect. There may exist certain critical and tempestuous conjunctures of the State, in which a poll tax may become an inestimable resource. And as I know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, I acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security.”
All Hamilton is saying here is that if the feds have the power to enact a poll tax, this doesn’t mean they will use it. He gives the example of the states. This does not imply that the federal government DOES have general emergency powers at all. It only implies that if they are granted a certain power, they will not necessarily use or even abuse it. Hamilton’s quote here does not imply that the US government has emergency power to regulate whatever it wants.
And it is also true that states themselves–like most states in the world–have plenary police or legislative power–that is, they have “full” state power. I go into this here http://www.stephankinsella.com/2009/10/26/the-unique-american-federal-government/ . But the federal government does NOT. It is unique in that its powers are limited to those enumerated. For example a typical state does not need any special written constitutional authorization to enact a law banning murder or rape, or even one outlawing drugs. These things are said to be part of the state’s general police power–its general power to do what it thinks necessary (not that I favor this, of course–but this is the typical theory of state sovereignty).
But the federal government has no “general police power” or “plenary legislative authority” to enact any law it thinks is necessary for the community’s well being–it cannot even enact a law against murder or rape, for example. (There are plenty of Supreme Court cases acknowledging the plenary legislative power of states but not in the feds.) So in this sense the feds are unique.
Thus, even if normal states, and the US States themselves, have the ability to do what they want in emergencies, this is as a result of their having full, plenary power. That power would include emergency powers, which they could seize in emergencies. The US government was never given plenary power, was never made into a typical national government as Hamilton wanted. If it doesn’t even have the constitutional authority to outlaw the most basic of crimes, like murder or rape, it’s hard to argue that it has emergency powers to regulate the Internet–or even that it has these powers if the Congress enacts a statute to this effect, since that statute is unconstitutional as well.
“All Hamilton is saying here is that if the feds have the power to enact a poll tax, this doesn’t mean they will use it.”
Is it possible to have a more idiotic interpretation of what Hamilton wrote than this?
Also Gene, who gets to decide whether there is an emergency or not? The president?
What the heck is the point of having a constitution then?
That’s a good question, and the theme of my thesis. An excerpt:
In particular, the respective histories of the Roman and the American Republics suggest the proposition that possession of a written constitution is not of primary importance in determining the success of any polity: the Roman Republic worked well for over three centuries despite having no written constitution, while the practice of politics in the American Republic, almost as soon as it was founded, began to deviate from the formal constitution that was supposed rigidly to dictate the guidelines to which practice must conform. What is more, as we shall see, is that American political practice needed to set aside the idea that all political actions must strictly adhere to the letter of the Constitution in order for the fledgling republic to survive and prosper, and the attempt to make explicit the principles that had guided the Roman Republic successfully before the Roman Revolution, by setting them out as written directives with the force of law behind them, could not save it from dissolution. But, it is important not to overstate this claim; first of all, only two cases will be examined in depth, which is hardly a conclusive survey, and secondly, I am not arguing that a well-written constitution is entirely otiose, but, rather, that it is at best the ‘icing on the cake’ for a polity based on a pre-theoretical, commonly embraced, and viable conception of how social life should be structured, as it may serve as a focal symbol representing and clarifying the central norms underlying that political order. As Oakeshott put it, ‘In certain circumstances an abridgement of this kind may be valuable; it gives sharpness of outline and precision to a political tradition which the occasion may make seem appropriate’ (1991 [1962]: 55).
“What the heck is the point of having a constitution then?”
What’s the point of having stoplights if you let ambulances run red lights if they’ve got their sirens on?
That’s not analogous. If we said, “You have to stop for a red light, unless you the driver decide there’s an emergency,” then yes depending on the community it might not matter if there were stoplights.
And with the people who are likely to be in the White House, no I don’t trust their good judgment.
This seems like one of those situations where it doesn’t really matter what the law says. Suppose that the law grants Obama the unquestionable right to shut down the Internet for any or no reason. If on Monday Obama were to invoke this authority absent good cause, the public outcry would be so great that by Wednesday he would have reversed himself. In fact, the political damage of shutting down the Internet without having a damn good reason is so great that no President would ever do so, regardless of whether or not he had the legal authority.
On the other hand, suppose there really was an emergency that required the Internet to be shut down (e.g. as in the plot of the Lawnmower Man). In that case the President would shut it down, and it wouldn’t really matter whether there was a statute book somewhere saying he couldn’t do that.
Just so, blackadder.
What would be a situation then where it DID matter what the law says? If they passed a law saying Obama could chop people’s arms off and not suffer any legal ramifications, we could say the same thing, right? And would you and Gene be shrugging it off as inconsequential?
What you are overlooking is that by making these things “legal” the government alters what the public will accept. That’s the whole point–to get the public to acquiesce in things that would have shocked them a generation previously.
And then the government keeps doing that, every generation.
(And yes Gene I’ve thought about history for that one.)
“What would be a situation then where it DID matter what the law says?”
Well, it matters very much in non-emergencies. But in a genuine emergency, the survival of the community trumps such concerns. (I think the Romans handled this better than we have — they would appoint a dictator to deal with a crisis, authorized to do what it took to steer through it, but only for the duration of that crisis — for instance, a dictator was appointed to deal with the threat of Hannibal.)
“What you are overlooking is that by making these things ‘legal’ the government alters what the public will accept.”
What you are overlooking is that such actions have always been legal in an emergency — this bill is an attempt to regulate just how such actions should proceed. It may be an awful attempt or a decent attempt to do so — I haven’t studied it — but it does not represent any unprecedented extension of state power.
“That’s the whole point–to get the public to acquiesce in things that would have shocked them a generation previously.”
So, say, in 1917 the public would have been “shocked” that critics of the US entry into WWI could be imprisoned? In 1807 they would have been “shocked” that opponents of Jefferson’s embargo could be imprisoned?
I am NOT contending that either of those policies were good or necessary. I am contending that people are generally ready to grant rulers great power in times that they perceive to be a crisis. And I am also not contending that no government has ever faked a crisis in an attempted power grab. A bill to regulate what that extension of power can consist in may (or may not!) represent a useful check on that tendency. The question of whether Lieberman’s bill is such a check or perhaps, instead, a justification of a power grab can only be determined by examining, in detail, how the provisions of the bill compare to what existing practice would allow in its absence. I do not pretend to have done such an examination, but I see no evidence that most of those who are apoplectic about the bill have done so either.
Gene wrote:
Well, it matters very much in non-emergencies. But in a genuine emergency, the survival of the community trumps such concerns. (I think the Romans handled this better than we have — they would appoint a dictator to deal with a crisis, authorized to do what it took to steer through it, but only for the duration of that crisis — for instance, a dictator was appointed to deal with the threat of Hannibal.)
Let me tell you a story, Gene, and see if it touches you. I know a guy who used to believe in (free market) fractional reserve banking. But then within the last year or so, this guy I know started to change his mind. At first it was the recognition that Mises talked about FRB as the cause of the business cycle, not injections of new fiat money. And then when this guy really understood how commercial banks created new money in the process of advancing loans, he had flipped.
At first he loved the new position. It allowed him to team up with people he was associated with on a professional basis, and to critique a lot of the people who ran in different circles. So it was very convenient, and he thought it was right.
But then he realized that there was a very compelling case that if FRB per se is fishy/disruptive, then so too might maturity mismatching be (i.e. borrowing short and lending long). This gave my friend pause, because to “be against” maturity mismatching was really far from his position just two years in the past. He wasn’t sure he was ready to go that far, which made him wonder about the newfound distaste for FRB.
So in that light, Gene, I wonder: The fact that you are now literally pining for a dictator… Is that at all making you question your rejection of anti-state libertarianism?
At its core FRB is essentially a duration mismatch. With a central bank supporting the system, if one bank simply took on a deposit and then deposited that money at another bank(ostensibly for some type of profit) there wouldn’t be an issue.
“But in a genuine emergency, the survival of the community trumps such concerns. ”
You appear to be confusing the “community” with the “government.”
A community of sovereign, peaceful, productive individuals always predates the government that eventually arises to prey upon it.
“That’s the whole point–to get the public to acquiesce in things that would have shocked them a generation previously.”
And to see various measures as having “the point” of achieving some previously devised outcome usually is to be guilty of reading history backwards. Most often, the cumulative result of such measures was not planned by anyone enacting them. For instance, the Roman principate was not the intended outcome or “the point” of the measures Augustine and the Senate took to resolve the century-long political crisis that Rome had experienced. They were each contingent responses seeking to resolve that crisis, and no one had the end result in mind as they embarked on the series of actions that ultimately created the principate.
You are a formidable opponent, Gene. If I’m not mistaken, you have divided history into two categories:
(A) Cases where the government did things that fit my thesis (e.g. in 1807 and 1917), and
(B) Cases where the government did things that don’t (you claim) fit my thesis.
And yet, instead of saying I’m only half right, you used both sets of examples to claim I was wrong!
Impressive.
In so far as your thesis is that the “point” of every measure like the cyber bill is to get people used to more government control or whatever, I certainly never said or implied that 1807 or 1917 fit your thesis. That governments sometimes expand their powers is no doubt true. That every such expansion is part of a plan, the point of which is to create a totalitarian state, is a lot more doubtful, and simply to point to times when government power happened to expand and say they fit your thesis is nonsense.
I quit smoking two weeks ago. Several times a day I reach out as if I’m going to grab a cigarette. I just remind myself I don’t smoke any more despite my sometimes foul mood. Can you imagine the mood of this country with tens of millions of people trying to connect?…Trying to see if their connections are back?…No news, no E-mails, no stock market…emptiness. C’mon Washington…make our day. The power grab is already out of control…this would turn even moderates into passionate thinkers and actors.
Scott Horton interviews Bruce Schneier on this issue here:
http://antiwar.com/radio/2010/06/26/bruce-schneier-2/
Schneier thinks that there is no good reason to shut down the internet and that it would only cause more panic than whatever it was the shutdown was trying to prevent.
If I wanted to overthrow a republic and set up an empire, controlling how people receive and dispense information would be near the top of my agenda.
If you ever go that route, let me be your propaganda minister. I’ve got some ideas. I’m thinking we use Cartman’s “respect my authoritay!” as a springboard.
LOL… does the public waking up to their exploitation at the hands of the elite qualify as an “emergency”?
I’m betting yes.
“So in that light, Gene, I wonder: The fact that you are now literally pining for a dictator… Is that at all making you question your rejection of anti-state libertarianism?”
Perhaps you should look up what “dictator” meant in the Roman Republic.
“I certainly never said or implied that 1807 or 1917 fit your thesis. That governments sometimes expand their powers is no doubt true. That every such expansion is part of a plan, the point of which is to create a totalitarian state, is a lot more doubtful.”
If I’m not mistaken, one theory Bob has put forward is that the conspiracy to create a totalitarian state is being directed by Satan, who has been working for hundreds of years to lay the groundwork for him to seize control of the entire planet.
“’i’m just saying it’s not nearly as wacko as I would have thought ten years ago.”
I.e., “I am much, much more wacko than I was ten years ago.”
“…governments sometimes expand their powers…”
Sometimes? Has a single day gone by during your entire lifetime (other than government holidays) on which the government did NOT expand its powers?
Has there been even ONE glorious working day in the past 100 years on which every bureaucrat, president, mayor, judge, colonel, postmaster, game warden, fire chief and school superintendent at every level of government throughout the land refrained from issuing any kind of new rule that gave him an additional power to punish, tax, fine and/or imprison the people under his control?
“Sometimes? Has a single day gone by during your entire lifetime (other than government holidays) on which the government did NOT expand its powers?”
Only someone in the trance of an ideology could interpret history like this. bestquest apparently thinks that, for instance, the deregulation of the airline industry was an EXPANSION of government power!
Bestquest only claimed that government power is expanded every day in some respect. He didn’t even clearly say that governent power is expanded on balance every day. Certainly he didn’t say that government power is always expanded in every respect.
Hey Bob,
I was checking out the amazon page for Road to Serfdom to see how 1 star reviewers were dealing with the subject. One such reviewer mentioned Joseph Stiglitz’s work and how he “disproved” much of the book with his article written in 1986. http://www2.gsb.columbia.edu/faculty/jstiglitz/download/papers/1986_Externalities_in_Economies.pdf
So what’s your take on this?
Gene, I think you and Black Adder make very important points about how this bill is nothing new in practice. Basically, in an emergency, the executive branch will probably do whatever it wants (the legislative branch will be too scared to “do nothing” so they will grant the executive what it wants). You guys are correct in saying that shutting the internet down is such a big deal that the costs (politically) could keep the president in check.
I think Bob is correct though in hating these kind of bills. This bill represents a legitimization of a future power grab. Even though, without the bill, the executive could probably do what it wanted, the bill is like a green light and lets the public get used to the idea being “normal.” Ultimately, I gotta side with bob on this one.
And Gene, You use phrases like “I think the Romans handled this better than we have — they would appoint a dictator to deal with a crisis, authorized to do what it took to steer through it”, but I think you are making the error of lumping all of those under Roman rule as the “Romans” in that sentence. By saying “the romans did X”, you are generalizing an entire population, which may have been made up of many individuals who hated or abhorred roman rule. A society cannot “do” anything. Only individuals can act. By saying the Romans decided to do X, you are treating a whole society full of independently thinking people as if they collectively decided to put a dictator in charge.