Does The United States Still Exist?

An address delivered to the Northwest Florida Libertarian Party on March 23, 2016 in Destin, Florida

Paul Craig Roberts

To answer the question that is the title, we have to know of what the US consists. Is it an ethnic group, a collection of buildings and resources, a land mass with boundaries, or is it the Constitution. Clearly what differentiates the US from other countries is the US Constitution. The Constitution defines us as a people. Without the Constitution we would be a different country. Therefore, to lose the Constitution is to lose the country.

Does the Constitution still exist? Let us examine the document and come to a conclusion.

The Constitution consists of a description of a republic with three independent branches, legislative, executive, and judicial, each with its own powers, and the Bill of Rights incorporated as constitutional amendments. The Bill of Rights describes the civil liberties of citizens that cannot be violated by the government.

Article I of the Constitution describes legislative powers. Article II describes executive powers, and Article III describes the power of the judiciary. For example, Article I, Section 1 gives all legislative powers to Congress. Article I, Section 8 gives Congress the power to declare war.

The Bill of Rights protects citizens from the government by making law a shield of the people rather than a weapon in the hands of the government.

The First Amendment protects the freedom of speech, the press, and assembly or public protest.

The Second Amendment gives the people the right “to keep and bear arms.”

The Third Amendment has to do with quartering of soldiers on civilians, a large complaint against King George III, but not a practice of present-day armies.

The Fourth Amendment grants “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and prevents the issue of warrants except “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment prevents police and prosecutors from going on “fishing expeditions” in an effort to find some offense with which to charge a targeted individual.

The Fifth Amendment prohibits double jeopardy, self-incrimination, the taking of life, liberty, or property without due process and the prohibition of seizing property without just compensation.

The Sixth Amendment guarantees speedy and public trial, requires that a defendent be informed of the charge against him and to be confronted with the witnesses, to present witnesses in his favor, and to have the assistance of an attorney.

The Seventh Amendment gives the right of trial by jury to civil suits.

The Eighth Amendment prevents excessive bail and cruel and unusual punishments.

The Ninth Amendment says that the enumeration of certain rights in the Constitution does not deny or disparage others retained by the people. In other words, people have rights in addition to the those listed in the proscriptions against the government’s use of abusive power.

The Tenth Amendment reserves the rights not delegated to the federal government to the states.

The Tenth Amendment is a dead letter amendment. The Third Amendment protects against an abandoned abusive practice of government. The Seventh Amendment is still relevant as it allows damages in civil suits to be determined by a jury, once a protection against unfairness and today not always the case.

The other seven amendments comprise the major protections of civil liberty. I will examine them in turn, but first let’s look at Section 1 and Section 8 of Article I. These two articles describe the major powers of Congress, and both articles have been breached. The Constitution’s grant of “all legislative powers” to Congress has been overturned by executive orders and signing statements. The president can use executive orders to legislate, and he can use signing statements to render sections of laws passed by Congress and signed by the president into non-enforced status. Legislative authority has also been lost by delegating to executive branch officials the power to write the regulations that implement the laws that are passed. The right that Section 8 gives to Congress to declare war has been usurped by the executive branch. Thus, major powers given to Congress have been lost to the executive branch.

The First Amendment has been compromised by executive branch claims of “national security” and by extensive classification. Whistleblowers are relentlessly prosecuted despite federal laws protecting them. The right of assembly and public protest are overturned by arrests, tear gas, clubs, rubber bullets, water canons, and jail terms. Free speech is also limited by political correctness and taboo topics. Dissent shows signs of gradually becoming criminalized.

The Fourth Amendment is a dead letter amendment. In its place we have warrantless searches, SWAT team home invasions, strip and cavity searches, warrantless seizures of computers and cell phones, and the loss of all privacy to warrantless universal spying.

The Fifth Amendment is a dead letter amendment. The criminal justice system relies on self-incrimination as plea bargains are self-incrimination produced by psychological torture, and plea bargains are the basis of conviction in 97% of all felony cases. Moreover, physical torture is a feature of the “war on terror” despite its illegality under both US statute and international law and is also experienced by criminals in the US prison system.

The Fifth Amendment’s protection against deprivation of life, liberty, and property without due process of law has been lost to indefinite detention, executive assassination, and property takings without compensation. The Racketer Influenced Corrupt Organizations Act (RICO) passed in 1970. The act permits asset freezes, which are takings. The Comprehensive Forfeiture Act passed in 1984 and permits police to confiscate property on “probable cause,” which often means merely the presence of cash.

The Sixth Amendment is a dead letter amendment. Prosecutors routinely withhold exculpatory evidence, and judges at prosecutors’ requests have limited attorneys’ ability to defend clients.The “war on terror” has introduced secret evidence and secret witnesses, making it impossible for a defendant and his attorney to defend against the evidence.

The Eighth Amendment’s prohibition of excessive bail and torture are routinely violated. It is another dead letter amendment.

It is paradoxical that every civil liberty in the Bill of Rights has been lost to a police state except for the Second Amendment, the gun rights of citizens. An armed citizenry is inconsistent with a police state, which the US now is.

Other aspects of our legal protections have been overturned, such as the long standing rule that crime requires intent. William Blackstone wrote: “An unwarrantable act without a vicious will is no crime at all.” But today we have crimes without intent. You can commit a crime and not even know it. See for example, Harvey Silverglate, Three Felonies A Day: How the Feds Target the Innocent.

Attorney-client privilege has been lost. The indictment, prosecution, and imprisonment of defense attorney Lynne Stewart is a good example. The DOJ prevailed on her to defend a blind Muslim regarded by the DOJ as a “terrorist.” She was informed that “special administrative measures” had been applied to her client. She received a letter from the federal prosecutor informing her that she and her client would not be permitted attorney-client privilege, and that she was required to permit the government to listen to her conversations with her client. She was told that she could not carry any communications from her client to the outside world. She regarded all this as illegal nonsense and proceeded to defend her client in accordance with attorney-client privilege. Lynne Stewart was convicted of violating a letter written by a prosecutor as if the prosecutor’s letter were a law passed by Congres and present in the US code. Based on a prosecutor’s letter, Lynne Stewart was sentenced to prison. No law exists that upholds her imprisonment.

Our civil liberties are often said to be “natural rights” to which we are entitled. However, in historical fact civil liberty is a human achievement that required centuries of struggle. The long struggle for accountable law that culminated in the Glorious Revolution in England in the late 17th century can be traced back to Alfred the Great’s codification of English common law in the 9th century and to the Magna Carter in the early 13th century. Instead of issuing kingly edicts, Alfred based law on the traditional customs and behavior of the people. The Glorious Revolution established the supremacy of the people over the law and held the king and government accountable to law. The United States and other former British colonies inherited this accomplishment, an accomplishment that makes law a shield of the people and not a weapon in the hands of the state.

Today law as a shield of the people has been lost. The loss was gradual over time and culminated in the George W. Bush and Obama regime assaults on habeas corpus and due process. Lawrence Stratton and I explain how the law was lost in our book, The Tyranny of Good Intentions. Beginning with Jeremy Bentham in the late 18th century, liberals saw the protective shield of law as a constraint on the government’s ability to do good. Bentham redefined liberty as the freedom of government from restraint, not the freedom of people from government. Bentham’s influence grew over time until in our own day, to use the worlds of Sir Thomas More in A man for All Seasons, the law was cut down so as to better chase after devils.

We cut down the law so that we could better chase after the Mafia.
We cut down the law so that we could better chase after drug users.
We cut down the law so that we could better chase after child abusers.
We cut down the law so that we could better chase after “terrorists.”
We cut down the law so that we could better chase after whistleblowers.
We cut down the law so that we could better cover up the government’s crimes.

Today the law is cut down. Any one of us can be arrested on bogus charges and be helpless to do anything about it.

There is very little concern in legal circles about this. The American Civil Liberties Union (ACLU) does attempt to defend civil liberty. However, just as often the ACLU is not defending the civil liberties in the Bill of Rights that protect us from the abuse of government power, but newly invented “civil rights” that are not in the Constitution, such as “abortion rights,” the right to homosexual marriage, and rights to preferential treatment for preferred minorities.

An attack on abortion rights, for example, produces a far greater outcry and resistance than the successful attack on habeas corpus and due process. President Obama was able to declare his power to execute citizens by executive branch decision alone without due process and conviction in court, and it produced barely audible protest.

Historically, a government that can, without due process, throw a citizen into a dungeon or summarily execute him is considered to be a tyranny, not a democracy. By any historical definition, the United States today is a tyranny.

Blatantly Subjective Biloxi

It felt good being in Biloxi Mississippi this 27th of February. This southern gambling town was the place where eleven Libertarian candidates for President strutted their stuff in the Beau Rivage Casino Hotel for the first Presidential debate this election year. The Alabama and Mississippi Libertarian Parties put their heads together, combined their resources, and produced a fine event that has real political impact. Libertarians usually have a very small pool of candidates to choose from, but here would be eleven all in one place.

Now that I’ve seen them, I have to ask myself, who is going to come out on top?

Of course, there is no truly objective way of deciding an issue like this. Objective evaluations of candidates sound good but are mostly meaningless because every voter chooses based on their own subjective criteria anyway, and Libertarians are nothing if not subjective. I’m no exception. I still think Gary Johnson could have gotten a million more popular votes in 2012 if he had simply said he would prosecute (instead of bailout) bank and mortgage fraud. John McAfee made me question his sanity with his hookers and blow campaign start on the web a few weeks ago. This doesn’t make sorting out the potential of these candidates easy. Still, there are some criteria that can help. Can the candidate attract voters? Do they have a track record of success? Have they got the brains and charisma to sway an audience? In short, can they lead?

Subjective? You bet.

Before the debate I was able to walk around and ask basic questions of all the candidates except two. Steve Kerbel, from Colorado, fell ill at the last minute and could not attend, and Tom Clemments who appears to have been added to the stage at the last minute.

The first to speak was Marc Allen Feldman. An anesthesiologist from Washington D.C., he is a Libertarian Party life member and the LNC Region 3 rep. A compact man with horn rimmed glasses, he has a feisty and engaging personality, and looks like he might have been a boxer when younger, though he wasn’t. He speaks well, won’t take a donation greater than $5, and has accumulated $1000 in campaign funds from at least 200 people without the help of any campaign volunteers. He wants to implement dollar for dollar tax credits for things like private charity, but in table conversation I found him remarkably unable to appreciate what a problem it is that it costs more than $10,000 for a candidate for U.S. Senate to file to run in Florida. He truly gave the impression he didn’t care about money, and finding candidates is as easy as asking for them, attitudes that tell me he doesn’t care about winning. During the debate he advocated solving the immigration problem by opening the borders and just letting the welfare state collapse; an answer that made me shift in my chair because it ignores the incredible pain (and violence) it would bring to the country. There has to be a better way than collapse. Flippancy is not something I like in a President, nor in a national party rep.

Next came Cecil Ince, a railroad employee, part time actor and entrepreneur from Springfield, Missouri who has six volunteers working for him and has collected $500 in contributions so far. To me, he looked almost too young to even run for President (that is 35), and jokingly told me to put the word “nudity” in for any answers I needed from him.   He wants the Party under one banner, wants to dismantle the economic system, thinks that the 10th amendment was being violated, and that if elected he would charge his Attorney General to enforce the 10th with legal action. He likes a balanced budget amendment, but would rather repeal the 16th amendment than do a fair tax. He’s a motivated guy, who has a sense of humor, and speaks with confidence if not polish, but has little more than that going for him now.

Then came Gary Johnson, the LP 2012 Presidential candidate from Taos, New Mexico, and former Governor of that state which is something that he mentioned at least 14 times during the course of the debate. His campaign has approximately 1000 volunteers nationwide and he has raised “about” $100,000 so far, which is not bad for a Libertarian. He calls himself an entrepreneur, and recently resigned his position as CEO of Cannabis Sativa Inc., a marijuana supply company he founded, in order to run for office. His message is eerily similar to 2012; government is way too big, costs way too much, and personal liberty is under attack. The answer is to cut government spending, cut the income tax, and get the IRS out of people’s lives.  In 2012 the ACLU gave him 21 torches (out of a possible 24) for defending individual liberty whereas Ron Paul only got 18. He supports the Libertarian Party suing the Presidential Debate Commission for excluding third parties in a joint effort with the Green party. He says he is a natural competitor, climbed the seven highest summits on planet Earth, was already a (Republican) governor of New Mexico, seeks new challenges, and brings real experience to the LP Presidential race. I believe him. Real competition (and persistence) should be what Libertarians are about. However, he needs to raise general public confidence in himself by accounting for his own campaign debt from 2012, and taking a few more risks addressing the privilege of Wall Street types who don’t seem to live by the same laws the rest of us do. On a parting note, he called Donald Trump a “pussy.” Not my words, f’sure.

The surprise of the evening, for me, was John McAFee, the software creator, from Lexington, Tennessee. He calls himself a retired entrepreneur, but is starting a new company while campaigning called Future Tense Central. Remarkably candid about his life, he has been arrested for drug use, he is involved in an ongoing scandal in Belize that includes a murdered man, he was tortured by police authorities while south of the border, and he is convinced the drug war has failed. Creating victimless crimes only leads to creating more pimps and predators in this world. He understands the loss of personal freedom because it was denied him. At 70 years old, he claims he is in this race it to win it, and he has 120 nationwide volunteers in a self-financed campaign of which he is unsure how much he has already spent. I found him courteous and quick witted, with a sense of humor, all of which challenges my first media impression of him. I now have to wonder why he chose to open his campaign in such a way that prejudiced so many against him. The oddest thing is that I found him to be sincere, which was the last thing I thought I’d think. He also addressed that we cannot allow the government to have a backdoor on Apple phones, warned the biggest threat ahead is the coming cyber war with China and Russia, and that the U.S. can pay its bills with travel taxes and park fees while the income tax was eliminated (eh…I don’t know about that one). Overall, he talked like a thoughtful man who experienced the ugly side of life while creating a billion dollar company. However, his kind of baggage, though a personal victory for him, will be a public liability. Will the public trust someone who was so much on the wrong side of the law? Will libertarian rolls grow if he is the candidate? No, because it is already too difficult for the public to see past the crazy to see the good.

Darryl Perry is another young guy (could it be everyone is starting to look young to me?) who is a poised and passionate speaker. An affiliate relations specialist (?) from Keene New Hampshire, he proclaims that he joined the party of principle because it was not about half measures and incremental stuff. For example, cannabis being OK, but no hard drugs, is not a libertarian principle. His campaign has collected $2000 so far, and he may or may not have 12 volunteers, since he first said twelve, but then said he had none. As he spoke I couldn’t help thinking of the Billy Joel song the “Angry Young Man.” He said things like “I will proclaim principles of liberty every chance I get,” and “I have no ideas but proclaiming the ideas of liberty.” Fine sentiments, but he also says “The US government needs to be dissolved,” and “I am openly for succession.” Pity that he has these anarchistic ideas, because he obviously has the brains and presence to do well in politics, but advocates a philosophy that ultimately leads nowhere.

Then there is Austin Peterson from Peculiar Missouri, CEO of Stonegait Corp, and publisher of Libertarian Republic Magazine. He actually may be the youngest candidate because he will turn 35 on the campaign trail. Well spoken, well dressed, and media savvy, the best word that describes him is slick. I wouldn’t doubt that his media connections (a good thing) are what led to John Stossel having the first nationwide Libertarian TV debate to come on his show. He knows that appearances mean a lot, but I think he also knows contacts lead to opportunities. A self-proclaimed son of the Ron Paul Revolution, he became a Ron Paul volunteer and brought in 1200 other volunteers and $1 million in donations for him. As a Libertarian, he “turned the national party into a powerhouse of activism,” and has a plan to get us to 5% of the vote by making allies. At one point he said “If a 10% tax rate is good enough for Jesus, it’s good enough for me.” He advocates abolishing the payroll tax, abolishing the corporate tax, wants to see a generational change in thinking about government, and says he will fight to make the USA a more libertarian republic. He has $25,000 in donations in his run President so far, and 4 volunteers. I don’t think he has the momentum to carry the nomination this year, but let’s see what happens in the future.

Derrick Reid is in an intensely different category. When I asked him what his occupation was he blurted a laundry list of occupations including being an engineer, a patent attorney, and living on the skids. He speaks fervently in conversation, almost feverishly. He claims to have analyzed the social economic structure of the nation, and come up with the solutions to our ills. He said at one point in the debate “I am astonished at the lack of economic understanding on this stage,” and continued with how it would be folly to actually advocate a balanced budget without clearly explaining why. In private conversation he touched on the power of the Federal Reserve, but I am not exactly sure he is against it. Among his quotes for the evening are “If you cannot win in your run for President you cannot change things for liberty.” “Incremental change to make a difference doesn’t work because we are talking about a step function in politics,” and “If nominated, I guarantee victory.” However his most infamous statement from the debates was that he was not only for the death penalty, but he thought 10 year olds should witness public executions, a comment that actually brought boos from the audience. He is from Laguna Beach California and has no financial contributors or volunteers. My advice to Mr. Reid is cut out the caffeine.

Jack Robinson JR, from Winston Salem, NC, is a distinguished looking businessman that owns a patent for a unique form of packaging and runs a heavy machinery manufacturing firm. “I’ve looked at the problems of the country and have a plan to fix the economic problems…” but to me that message was never really filled out in the debate. He did recommend a descending flat tax, which I personally think is more of what we have now, and that he would split up every dollar that comes in to the government so as to make sure at least 25% goes to paying off debt. My favorite line from him…”What’s wrong with open carry?” So far he has no money and no volunteers.

Rhett Rosenquist Smith – from San Antonio Texas, is a private security contractor, and a Navy veteran from 1979-83. He calls what he thinks is an imminent revolution in this country “the libertarian revolution,” and says he will fill the “urgent need to reawaken and rekindle the nation.” Bush, Cheney, Obama and Clinton are destroying our lives. He said we should win battles in economics, but then came out with the idea there should be no sales, property or income taxes for low income folks; a progressive idea that, in my opinion, does not enforce common and equal individual rights, but establishes a class of people who are privileged. He has 5 volunteers and has made no FEC filings yet.

Shawna Sterling is a cheerful woman from Brooksville, KY, who is a non-fee pastoral counselor. She spoke about how she grew up Republican, then turned Democrat to become an Obama organizer. Unfortunately she didn’t seem to have enough time in her opening statement to get a clear idea out about why she is a libertarian now. One thing did come through clearly is that the Affordable Care Act needs to be repealed, and she related how she knows people whose medical insurance premiums have doubled already. “The IRS should have nothing to do with healthcare.” She currently has no campaign donations, nor volunteers.

And last on the stage was Tom Clemments, from Louisiana. His was the only candidate without a name banner, which was because he was a last minute add-on to the debate. He is driven by ideas of unity in the country and the welfare of his grandchildren. He talked about how “It’s just a two party system” but also how the founding fathers did not create this. On other topics he was not so clear, and seemed to dance around the issues. When asked about being for or against the death penalty, he said “that’s a touchy subject” but his point was buried in so much follow on jargon, I’m not sure if he is for or against it. He did say, call your rep and say we need a flat tax both for business and for individuals. Other quotes are “The second amendment protects all others,” and “The EPA is designed to take property.” Perhaps, in time, he will get his ideas out in a clearer fashion.

So, can these candidates attract voters? Do they have a track record of success? Have they got the brains and charisma to sway an audience? In short, can they lead?

I’m sure you’ve already decided on your own.

Regards

Pete