StephanKinsella.com

The “Arab Problem”

Posted by Stephan Kinsella on March 26, 2004 11:00 AM

The following informal memo (Download file) was passed on to me by a pro-Israel, pro-war attorney. Apparently this is what passes for sober wisdom among neocons; this is the kind of thing they are apparently passing along to each other in secret, wink-wink emails.

The piece is, as far as I can tell, anonymous, but draws on Colonel Ralph Peters views. The memo breathlessly argues that “our enemy” is basically Arab culture. As it suggests: “We’re facing a 14th century culture engaged in a 14th century war against us. The problem is that they are armed with 20th century weapons, which may eventually include nuclear weapons. … It may sound strange to say, but what we have to do is to take the 14th century culture of our enemies and bring it into the 17th century. Once we’ve done that, then we can work on bringing them into the 21st century, but that will be much easier.”

I’m reminded of Rothbard’s proposal to repeal the Twentieth Century (unlike the William Buckley/National Review crowd, who advocated that conservatives “stand athwart history, yelling Stop.”)

So it seems to me that instead of bringing Arab culture from the 14th to the 21st century, we should meet them halfway, around the 18th or so. What the hell, let’s make it the 16th.

Other recent LRC blogposts:
The Golden Age

From Bad to Worse (on database bill)

Bullying

Is every conservative organization insane? (Federalist Society)

Re: Is every conservative organization insane?

Posted by Stephan Kinsella on February 28, 2004 12:08 PM

Thom, this reminds me of one reason I quit the Federalist Society. While they are more conservative and even more free market than most lawyers, the ones I’ve met have been woefully non-intellectual, ignorant, and completely unlibertarian. I remember a few years ago I was at a luncheon w/ some fellow members of the Houston chapter. I was sitting next to one guy who is an extremely intelligent lawyer, at a big firm, very well educated from some posh New England law school, etc. Trying to draw some interesting conversation out of him–he was kind of quiet and reserved, and I was not sure of how conservative, or libertarian, or whatever he was–I finally asked him something like, “Well, which political philosophers would you say you admire?” The answer stunned me, almost left me speechless: “Oh, I’d say Newt Gingrich.”

‘Nuff said.

Impeach Jefferson!

Impeach Jefferson!

Posted by Stephan Kinsella on February 26, 2004 04:47 PM

A French-German Tulane law student acquaintance of mine (he speaks nine languages–I only speak about 0.7), Frederic Sourgens, sent me his Inn of Court brief where he argues for the impeachment of President Jefferson for undertaking the unconstitutional Louisiana Purchase. A bit rough, but fun… Download file. After 30 pages of legal reasoning, it concludes: “President Jefferson must be removed from office because of his blatant disregard of the Constitution constituting a high misdemeanor of state and high treason against the United States.”

Gay Marriage Amendment

Gay Marriage Amendment

Posted by Stephan Kinsella on February 24, 2004 02:31 PM

From an article on the proposed Gay Marriage Amendment: “Bush plans to endorse language introduced by Rep. Marilyn Musgrave (R-Colo.) that backers contend would ban gay marriage but not prevent state legislatures from allowing the kind of civil unions and same-sex partnership arrangements that exist in Vermont and California. …

“Musgrave’s proposal, called the Federal Marriage Amendment, states: ‘Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.'”

This is bizarre. First, what would happen to bigamy statutes which prohibit one man marrying two women? One reading of the amendment would be that marriage is “defined” so that bigamy cannot exist–after all, it’s not just “a” man and “a” woman. So would bigamy now be decriminalized?Second, even this wording does not seem to prohibit “gay marriage”. Suppose Louisiana passed a law permitting gays to marry. They are not being required to do it by a judge or the feds; they just do it. Does this amendment mean that even a clear law letting gays marry can’t be “construed” to mean what it says? And what is “marital status”? Does it refer to the status that society confers upon marriage? If so, how can the Constitution affect it? Or does it simply refer to the *label* used in the state statutes? After all, even its drafters admit civil unions could be permitted–these could be identical to marriage in every way except the label used in the title of the statute.

In sum, this proposed amendment seems to do the following: it prevents judges from forcing states to include gays in their marriage laws. But it does not seem to prevent states from having civil unions, or even from enacting their own marriage laws.

Nor does it seem to do a good job at making it clear that one state’s gay marriage laws need not be given full faith and credit by others.

A better amendment would be simply: “No State may be required by the Federal government, including Federal judges, to recognize gay marriage, nor to give full faith and credit to gay marriage laws of Sister States.”

An even better amendment would be: “The Federal government shall have no power to tax.” Let’s keep our eyes on the ball, people!

N.B.: I am of course NOT calling for or endorsing a constitutional amendment or convention–I don’t trust any of these bozos.

“a cooked dough product having a light, flaky, crispy texture”

“a cooked dough product having a light, flaky, crispy texture”

Posted by Stephan Kinsella on February 21, 2004 01:10 PM

For those curious about the actual patent process, Chef America, Inc. v. Lamb-Weston, Inc. is an interesting and short recent case. This is a typical example of how patent attorneys describe reality and how federal judges handle patent disputes.

The case concerns U.S. Pat. No. 4,761,290 (PDF version; USPTO version), owned by plaintiff Chef America.

The patent covers “[a] process for producing a dough product which is convertible upon finish cooking by baking or exposure to microwaves in the presence of a microwave susceptor into a cooked dough product having a light, flaky, crispy texture.” The patent explains that with prior dough products “[i]n large measure, instead of the desired light, flaky, crispy texture, the cooked products have been found to be leathery, in the case of baked products, or soggy in the case of microwave heated products.” It involves the process of “applying a layer of shortening flakes between the dough and a light batter which is applied to the dough, setting the batter and subsequently melting the shortening flakes present in the set batter in order to form pin holes or air cells in the batter and at the surface of the dough. Upon finish cooking, these pinholes or air cells form a porous product and permit the batter to be quickly heated and browned, resulting in a dough product having a light, flaky, crispy texture to the pocket.”The patent’s technical description explains that the dough is cooked in an oven, at a temperature from about 400 degrees F. to 850 degrees F. The problem is that the claims of the patent–which specify what invention is legally protected–include the step: “heating the resulting batter-coated dough to a temperature in the range of about 400° F. to 850° F. for a period of time ranging from about 10 seconds to 5 minutes to first set said batter and then subsequently melt said shortening flakes, whereby air cells are formed in said batter and the surface of said dough”.

The claim should have said heating the dough “at” that temperature, not “to” that temperature. The dough is in an oven which is at 400° F. to 850° F., but the dough does not reach this temperature. If it did, it would burn up. Lamb-Weston was accused of infringing the claims of Chef America’s patent. But Lamb-Weston pointed out that it did not heat dough “to 400° F.”; therefore, it did not infringe the claims.

Chef America argued “that ‘to’ should be construed to mean ‘at’ because otherwise the patented process could not perform the function the patentees intended”. In other words, the claim is nonsensical if you construe “to” to mean “to”; anyone skilled in the art (e.g., a chef) reading the claim would understand it to mean that the oven is at the specified temperature, not the dough being cooked.

However, the appeals court held that the language was unambiguous and the court would not rewrite it. As the court stated, “we construe the claim as written, not as the patentees wish they had written it. As written, the claim unambiguously requires that the dough be heated to a temperature range of 400° F. to 850° F.”

This was the correct ruling, IMHO.

Subsidiarity and San Francisco (Gay Marriage)

Subsidiarity and San Francisco

Posted by Stephan Kinsella on February 20, 2004 04:33 PM

Regardless of the substantive merits of whether a particular state or state sub-unit “should” “recognize” “gay marriage”–no right-thinking libertarian ought to be in favor of the feds–or even California–forcing San Francisco to abandon its recent policy of marrying gays. You can say the SF government should not exist; should not marry gays; should not be in the business of marrying anyone. But that does not imply that California or the Feds should have the power to do anything about it (and in the case of the Feds, constitutionally, they do NOT have the power to do anything other than to refuse to force other states to give full faith and credit California’s gay marriage policy).

IMHO, libertarians who are against gay marriage should not make the mistake of abandoning decentralization by endorsing the feds’ interference with local government policies on this issue.

Recess Appointments

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Why do we rile them?

by Stephan Kinsella on February 17, 2004

Post on the LRC blog.

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Long on Anarchy

by Stephan Kinsella on February 16, 2004

Long on Anarchy: Posted on the LRC blog.

Also: Bradford of Liberty on Rights; and

Gay Marriage.

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Gay Marriage

by Stephan Kinsella on February 12, 2004

Gay Marriage, LewRockwell.com (Feb. 12, 2004)

On the one hand, I am amazed at the degree of opposition some conservative/libertarian types have to gay marriage. It’ll “weaken marriage”–? Whose? Not mine. Say you’re given a choice: prevent an increase in taxes, or prevent gay marriage from being recognized. Easy choice! (Prevent tax increases, just in case you are on the fence.)

On the other hand, the problem with gay marriage is that it’s just the thin end of the wedge: the gays will use it next to argue that homosexuality should be included in all the antiidiscrimination laws.The whole issue is confused. Part of it is because the leftist minority is disingenuously using this as a tactic to increase gay rights, e.g. to affirmative action, anti-discrimination laws, etc. And partly it’s because people are not clear on the terms of dispute.

For many it comes down to mere semantics. For example, a conservative libertarian friend is opposed to gay marriage. But he admitted, he has no problem with the state enforcing agreements between people–two gays, two sibligs, a rock band–and calling it a civil union. If two people want to form a union whereby they pool their assets and liabilities, have power of attorney over each other in critical medical or death situations, why shouldn’t such agreements be enforced? So my friend’s only problem is if the statute legalizing such agreements refers to the union as “marriage”.

I.e., the objection is just to the label the state happens to use. Thin gruel, it seems to me. My view is agreements should of course be enforced. The labeling of the ontology of the relationships protected by the legal system should be left up to tradition and individuals–to private society. Gays would probably try to have “marriage” ceremonies; the civil union would be one legal result flowing from this. Gays and englightened liberals and other moral relativists would then refer to such gay couples as “married.” They would try to nudge others to do the same–much as ethic jokes have been pushed into the closet and certain official labels like African-American or visually impaired have been foisted on us and others, like black or colored or blind, are frowned upon.

Whether mainstream religions or mainstream (hetero) people would adopt the gays’ denoting of this relationship as “marriage” has nothing to do with law or the public policy debate. I can say I am “married” to my dog. No one is obliged to treat this seriously. Etc. It’s not a legal issue. Nor a political issue. Nor a libertarian issue.

One final comment. Bush wants to constitutionally define marriage as between one man and one woman. But if this is the case, doesn’t it mean bigamy can’t be a crime? After all, bigamy is marriage to multiple partners; but if marriage is only marriage between one man and one woman, bigamy is just impossible, legally. Clearly bigamy is a type of marriage, albeit an illegal one. The definition of marriage is broader than what’s legally permitted. Bigamy is funny (not funny-funny, but strange-funny). It’s not illegal to live with multiple women. Nor to refer to them as your wives. It’s illegal to apply for the official status with multiple wives. You see how the state here subtly equates its dictates with reality.

But presumably, if we “define” marriage as a union of one man and one woman, bigamy would still be regarded as illegal. Yet if two men attempt to marry, it just will be ignored, and treated as a non-event. So the federal attempt to officially “define” marriage has this result: a man (trying to) marry a second woman is illegal; but a man marrying another man is not (because it is not given status). How’s that–the traditionlists penalize heterosexual bigamy more than they do homosexuality. Methinks they are all confused; they should stop relying on the state to define what is or is not marriage; and should drop all causes secondary to that of lowering taxes and spending.

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Anarchy in Dutch

by Stephan Kinsella on February 1, 2004

Those Dutch libertarians are a pretty active bunch. They’ve previously translated two of my articles; now there’s one of my What It Means To Be an Anarcho-Capitalist, January 20, 2004, LewRockwell.com. It is Wat het betekent om anarcho-kapitalist te zijn, MeerVrijheid.nl (local copy).

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The Onion: Man Walks on Moon

by Stephan Kinsella on January 25, 2004

HOLY SH**: MAN WALKS ON F***ING MOON

Neil Armstrong’s Historic First Words on Moon: “Holy Living F***”

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Recent LRC & Mises blogs

by Stephan Kinsella on January 25, 2004

Some of my recent LRC and Mises blogposts:

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What It Means To Be an Anarcho-Capitalist

by Stephan Kinsella on January 24, 2004

“Anarchists oppose the State because it has its very being in such aggression, namely, the expropriation of private property through taxation, the coercive exclusion of other providers of defense services from its territory, and all of the other depredations and coercions that are built upon these twin foci of invasions of individual rights.” Rothbard, Anatomy of the State

***

“What It Means To Be an Anarcho-Capitalist,” LewRockwell.com (Jan. 20, 2004). Reprinted in reprinted in Keith Knight, ed., The Voluntaryist Handbook: A Collection of Essays, Excerpts, and Quotes (2022). Revised version in Legal Foundations of a Free Society (forthcoming 2023).

3 What It Means To Be an Anarcho-Capitalist

Originally published at LewRockwell.com (Jan. 20, 2004; https://perma.cc/QAJ6-KHKN); reprinted in Keith Knight, ed., The Voluntaryist Handbook: A Collection of Essays, Excerpts, and Quotes (2022; https://perma.cc/N8UX-4PX4). See also Kinsella, “The Irrelevance of the Impossibility of Anarcho-Libertarianism,” Mises Economics Blog (Aug. 20, 2009).

Butler Shaffer’s recent LRC article, “What is Anarchy?,”^[1] prompted discussion on the Reason blog and inspired me to set down a few ideas I’ve also had along these lines.

Libertarian opponents of anarchy are attacking a straw man. Their arguments are usually utilitarian in nature and amount to “but anarchy won’t work” or “we need the (things provided by the) state.” But these attacks are confused at best, if not disingenuous. To be an anarchist does not mean you think anarchy will “work” (whatever that means), nor that you predict it will or “can” be achieved. It is possible to be a pessimistic anarchist, after all. To be an anarchist only means that you believe that aggression is not justified, and that states necessarily employ aggression. And, therefore, that states, and the aggression they necessarily employ, are unjustified. It’s quite simple, really. It’s an ethical view, so no surprise it confuses utilitarians.

Accordingly, anyone who is not an anarchist must maintain either: (a) aggression is justified; or (b) states (in particular, minimal states) do not necessarily employ aggression.

Proposition (b) is plainly false. States always tax their citizens, which is a form of aggression. They always outlaw competing defense agencies, which also amounts to aggression. (Not to mention the countless victimless crime laws that they inevitably, and without a single exception in history, enforce on the populace. Why minarchists think minarchy is even possible boggles the mind.)

As for (a), well, socialists and criminals also feel aggression is justified. This does not make it so. Criminals, socialists, and anti-anarchists have yet to show how aggression—the initiation of force against innocent victims—is justified. No surprise; it is not possible^[2] to show this.^[3] But criminals don’t feel compelled to justify aggression; why should advocates of the state feel compelled to do so?

Conservative and minarchist-libertarian criticism of anarchy on the grounds that it won’t “work” or is not “practical” is just confused. Anarchists don’t (necessarily) predict anarchy will be achieved—I for one don’t think it will. But that does not mean states are justified.

Consider an analogy. Conservatives and libertarians all agree that private crime (murder, robbery, rape) is unjustified, and “should” not occur. Yet no matter how good most men become, there will always be at least some small element who will resort to crime. Crime will always be with us. Yet we still condemn crime and work to reduce it.

Is it logically possible that there could be no crime? Sure. Everyone could voluntarily choose to respect others’ rights. Then there would be no crime. It’s easy to imagine. But given our experience with human nature and interaction, it is safe to say that there will always be crime. Nevertheless, we still proclaim crime to be evil and unjustified, in the face of the inevitability of its recurrence. So to my claim that crime is immoral, it would just be stupid and/or insincere to reply, “but that’s an impractical view” or “but that won’t work,” “since there will always be crime.” The fact that there will always be crime—that not everyone will voluntarily respect others’ rights—does not mean that it’s “impractical” to oppose it; nor does it mean that crime is justified. It does not mean there is some “flaw” in the proposition that crime is wrong.

Likewise, to my claim that the state and its aggression is unjustified, it is disingenuous and/or confused to reply, “anarchy won’t work” or is “impractical” or “unlikely to ever occur.”^[4] The view that the state is unjustified is a normative or ethical position. The fact that not enough people are willing to respect their neighbors’ rights to allow anarchy to emerge, i.e., the fact that enough people (erroneously) support the legitimacy of the state to permit it to exist, does not mean that the state, and its aggression, are justified.^[5]

Other utilitarian replies like “but we need a state” do not contradict the claim that states employ aggression and that aggression is unjustified. It simply means that the state-advocate does not mind the initiation of force against innocent victims—i.e., he shares the criminal/socialist mentality. The private criminal thinks his own need is all that matters; he is willing to commit violence to satisfy his needs; to hell with what is right and wrong. The advocate of the state thinks that his opinion that “we” “need” things justifies committing or condoning violence against innocent individuals. It is as plain as that. Whatever this argument is, it is not libertarian. It is not opposed to aggression. It is in favor of something else—making sure certain public “needs” are met, despite the cost—but not peace and cooperation. The criminal, gangster, socialist, welfare-statist, and even minarchist all share this: they are willing to condone naked aggression, for some reason. The details vary, but the result is the same—innocent lives are trampled by physical assault. Some have the stomach for this; others are more civilized—libertarian, one might say—and prefer peace over violent struggle.

As there are criminals and socialists among us, it is no surprise that there is a degree of criminal-mindedness in most people. After all, the state rests upon the tacit consent of the masses, who have erroneously accepted the notion that states are legitimate. But none of that means the criminal enterprises condoned by the masses are justified.

It’s time for libertarians to take a stand. Are you for aggression, or against it?^[6]

[Endnotes, adapted from the footnotes; some formatting like italics may be missing]

^[1] Butler Shaffer, “What Is Anarchy?,” LewRockwell.com (Jan. 13, 2004).

^[2] “Defending Argumentation Ethics” (ch. 7).

^[3] “Dialogical Arguments for Libertarian Rights” (ch. 6).

^[4] Another point: In my view, we are about as likely to achieve minarchy as we are to achieve anarchy. I.e., both are remote possibilities. What is striking is that almost every criticism of “impracticality” that minarchists hurl at anarchy is also true of minarchy itself. Both are exceedingly unlikely. Both require massive changes in views among millions of people. Both rest on presumptions that most people simply don’t care much about.

^[5] Though the case for anarchy does not depend on its likelihood or “feasibility,” any more than the case against private crime depends on there never being any acts of crime, anarchy is clearly possible. There is anarchy among nations, for example. There is also anarchy within government, as pointed out in a seminal and neglected JLS article by Alfred G. Cuzán, which argues that even the government itself is in anarchy, internally—the President does not literally force others in government to obey his commands, after all; they obey them voluntarily, due to a recognized, hierarchical structure. Government’s (political) anarchy is not a good anarchy, but it demonstrates anarchy is possible—indeed, that we never really get out of it. See Alfred G. Cuzán, “Do We Ever Really Get Out of Anarchy?,” J. Libertarian Stud. 3, no. 2 (Summer 1979): 151–58. And Shaffer makes the insightful point that we are in “anarchy” with our neighbors. If most people did not already have the character to voluntarily respect most of their neighbors’ rights, society and civilization would be impossible. Most people are good enough to permit civilization to occur, despite the existence of some degree of public and private crime. It is conceivable that the degree of goodness could rise—due to education or more universal economic prosperity, say—sufficient to make support for the legitimacy of states evaporate. It’s just very unlikely.

^[6] For discussion of other aspects of anarchist libertarian theory, see references in “Legislation and the Discovery of Law in a Free Society” (ch. 13), n.25, and others listed in Kinsella, “The Greatest Libertarian Books,” StephanKinsella.com (Aug. 7, 2006) and Hans-Hermann Hoppe, “Anarcho-Capitalism: An Annotated Bibliography,” LewRockwell.com (Dec. 31, 2001).

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