Caucus Countdown

Well, folks, next week we get to find out how accurate the polling has been. And, of course, I can't resist the temptation to predict (especially after finally getting it right last year for once).

My initial prediction for the Iowa caucus back in early November didn't account for the "Huckabee surge" of the last month -- I had Mitt Romney picked for a solid 1st-place finish, followed by Rudy Ghouliani and Ron Paul. I also left out Fred Thompson, who continues, for reasons unknown to me, to attract some support.

New prediction: Romney (~30%) still wins the state, with Huckabee (~25%) falling back a little. Fred Thompson and Ron Paul will scrap for third, and I'm predicting that Paul (~15%) will win the scrap with Thompson (~12%) taking fourth. Ghouliani (~10%) in fifth, McCain (~5%), with a few holdouts casting votes for also-rans/drops Duncan Hunter, Tom Tancredo et al.

Poll-watchers: Yes, I know you think I'm nuts to call Paul in third, but his supporters are going to make the effort to get out and vote for him. There's more support for Romney, Huckabee and Thompson than for Paul, but it's "softer" support and Thursday is "ER" night.

Paul cultists [1]: Yes, I know you think I'm nuts and that Paul is going to carry Iowa with 90% of the vote. Put down the crack pipe. I won't be surprised if he does better than I predict. I will be surprised -- and not as unpleasantly so as you probably think -- if he carries the state. As a matter of fact, I'll probably have to go to the real ER to get my ticker started again.

Of course, the Republican caucus in Iowa is set up to allow for fuckery -- hand-written ballots to be counted by local party bosses, with non-binding results and actual national convention delegates chosen later at a state convention. If Paul comes in at less than 10%, I'll be right in there with the folks claiming a stolen caucus. I just won't believe that Paul was actually at 90% before his votes got disappeared.

The Democratic Party's caucus is more open -- people stand in groups and identify themselves as supporters of the candidates they prefer. Then they do-si-doh and allemande and all that stuff until everyone is where he or she has finally chosen to be, and the delegates are distributed among the candidates who meet a "viability" threshold of between 15% and 25%.

Prediction: A three-way wash between Hillary Clinton, Barack Obama and John Edwards. They'll split the bulk of the vote, and five points will cover the spread between them. My guess is that Clinton will just barely edge out the other two -- she's more popular and more organized than Edwards and more organized than Obama. The real question is whether Edwards's organization or Obama's popularity will carry 2nd place, and if I had to bet, it would be on Edwards. Call it Hillary ~29%, Edwards ~27%, Obama ~25%.

I've left 19% of the vote open to account for Christopher Dodd, Joe Biden, Bill Richardson, Dennis Kucinich and Mike Gravel. What's going to happen there? I won't be surprised if Dodd makes that 15% "viability" threshold and gets some souvenir delegates, bringing the top three each down a point or two. I will be surprised if Richardson or Biden break 5%. And I guess we'll find out how many diehard Kucinich and Gravel supporters there are in Iowa: What those guys lack in money and organization, they make up for in having devoted supporters who will brave the weather to stand up for their man. Neither of them will break out, of course, but it's conceivable that either or both might do as well as Biden or Richardson.


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[1] -- Not Paul supporters, Paul cultists. There is a difference. If you think Paul might get first, second or third place in Iowa, that doesn't make you a cultist. If you're absolutely sure that he'll carry a majority of the GOP vote in Iowa, then you probably are one.

Stage WSPPer

Right now, the URL wspp.info points to a collection of posts on this blog related to the World's Smallest Political Platform. Pretty soon, though, it will point to a site I'm building to more actively promote the WSPP. Content so far:

- Link to a signable petition asking the Libertarian Party to adopt the WSPP as its platform.

- Link to a Yahoo! Group for discussion of the WSPP.

- Some buttons for linking.

Check it out. If you're a better button designer, etc., than I am, I'd welcome some assistance in making those things prettier.

Life's important questions ...

Does anyone know what port "COM 1" is in Kubuntu/KPPP? For some reason, Kubuntu doesn't seem to be autodetecting my external modem, and I haven't figured out which port to tell KPPP to find it on (there's a huge list which doesn't include "COM 1").

This question brought to you by Susan Hogarth, who just gifted me my first reasonably modern computer (a 1.4 GHz Shuttle PC) in forever, which was delivered by Bev Wilcox on her way through St. Louis taking her granddaughter Kennedy to see the Anasazi cliff dwellings in New Mexico. We had a nice little day yesterday, touring the old courthouse in St. Louis (the place where Dred Scott won his freedom before Taney's US Supreme Court took it away) and then having lunch (Hunan-style buffet, per Kennedy's extremely wise choice). Thanks to Susan for sending the machine, and thanks to Bev for a dropping it off and just for dropping by with a smart kid.

But anyway, back to the machine: It works, and its Windows XP partition recognizes the modem just fine. The other partition was an old Suse distro which didn't even recognize my mouse for some reason. I've had my Kubuntu install CD for some time, and was waiting breathlessly for a computer I could install it on. But I can't connect to the intarweb with it until I get it to recognize that modem (I don't like to spend much time on the Net when running Windoze -- matter of fact, the only reasons I didn't trash the XP partition are that my kids want to play games and my significant other has yet to recognize the clear superiority of OpenOffice over its Microshaft Ohfiz equivalents).

I may try a re-install of Kubuntu tonight, or else retreat to a distro I'm more familiar with like Xandros or Vector. I'm really hot and bothered to get the new machine in action. This old box I'm using now is a 650MHz P3 with 128Mb of RAM -- unimaginably fast and huge ten years ago, reasonably well-equipped when I got it in 2003 or so, completely antiquated now.

Why I am not a Rothbardian

Having abandoned the core libertarian stance -- opposition to mass murder by the State -- [Brink] Lindsay [sic] and his ilk are on their way out of libertarianism, as I've explained elsewhere, while [Ron] Paul and his "backward-looking" brethren represent the future of the movement.

That's Justin Raimondo of AntiWar.Com, having a cow about Cato Institute Research VP Brink Lindsey's criticisms of Ron Paul as quoted in The Nation.

Most of my reasons for not personally supporting Ron Paul's campaign have been pretty clear, at least to myself.

For example, I believe that "major party" libertarian campaigns are a detour onto a dead end road; that they're inherently a waste of effort that can't produce meaningful change in the direction of more liberty. I believe that it's going to take a new party (maybe the Libertarian Party, maybe not, but they're the only game in town right now that isn't rigged in favor of more state power) to move us toward liberty, because the fortunes of the Democratic and Republican parties are too tied up in their shared monopoly on power for them to risk their piece of that monopoly by breaking away from the status quo in any significant respect.

That's my strategic problem with the Paul campaign.

My ideological problem with the Paul campaign is that Paul is libertarian on some issues, and not on others. What I've been unable to figure out, until now, is why arguing that point seems to not make a dent in the resolve of some that supporting Paul must constitute a litmus test for one's libertarianism or deficiency thereof. And Raimondo has just handed me the explanation.

... the core libertarian stance -- opposition to mass murder by the State ...

Well, no. The core libertarian stance is opposition to initiation of force, and the core libertarian stance in the context of politics is opposition to initiation of force in institutionalized form, i.e. by the state (I don't respect the state enough to give it capitalized proper name status, and seeing other libertarians do so is one of my pet peeves).

Initiation of force takes many forms. Yes, mass murder, including in the form of aggressive war, is one of those forms, and the worst ... but there are others. Day in and day out, the state steals little pieces of many, many more lives than it takes entirely. It steals some of your income. It steals some of your discretion as to what sexual behavior is appropriate between consenting adults. It draws imaginary lines on the ground and dictates who may cross those lines and for what peaceful purposes they may do so.

I'm Misesian to the extent that I recognize the applicability of calculation problems. I can't tell you whether or not three thwarted border crossings, two criminal charges for consensual acts of sodomy between consenting adults, and $20,000 in capital gains taxes are "less than," "equal to," or "greater than" one murdered Iraqi in some hypothetical unit of force initiation. I'm happy to take the word of Justin Raimondo that the answer is "less than" -- but I'm not willing to take the next step, because it leads off a ledge.

That next step is the Rothbardian proclamation, as trumpeted by Raimondo, of "the primacy of foreign policy in determining the politics and direction of an ideological movement."

I certainly give great weight to foreign policy issues, and have generally agreed with Raimondo and with the editorial line of AntiWar.Com on those issues. But primacy -- "the state of being first in importance?" No. At least not if that means in action what Raimondo now seems to be saying it means: That it is the affirmative obligation of libertarians to support a candidate who is libertarian on foreign policy, even if that candidate is anti-libertarian on other issues.

That seems to be the gravamen of Raimondo's approach to the matter of libertarian non-support for Ron Paul, as well as the approach of the "paleo-libertarian" bloc. To be honest, it strikes me as a mirror image -- admittedly distorted, but discernible -- of the Eric Dondero line on supporting Rudy Giuliani: "Who cares about the war, dude? C'mon -- he's pro-choice on abortion!"

In the absence of a "perfect libertarian" candidate (i.e. a candidate who agrees with me in every respect on what it means to be a libertarian, and expresses that agreement consistently in his or her policy positions, of course!), one obviously must make choices between "less than perfect libertarian" candidates on the basis of issues (or just write off electoral politics as a bad job -- which some libertarians have done and for which I cannot blame them).

I certainly weight my preferences among these candidates heavily on foreign policy, to the extent that I simply will not support a candidate who supports the war on Iraq, period, end of story. Far be it from me, however, to attempt to dictate the values of other voters. Back to Mises/Rothbard 101 -- value is subjective. I can't pick your values for you, and neither can Justin Raimondo. You have to choose them yourself.

If Paul was distinguishable from other candidates by virtue of being the only presidential candidate to oppose the war on Iraq, I'd probably vote for him, my other problems with his party affiliation and anti-libertarian policy positions notwithstanding. But make no mistake about this: That party affiliaton and those anti-libertarian policy positions would make this a "hold my nose and go for the lesser evil" vote. I certainly wouldn't consider the decision to cast or not cast that vote to be a litmus test on whether or not I am a "real libertarian."

Thing is, Ron Paul isn't the only presidential candidate who opposes the war on Iraq. I have a number of such candidates to choose from, even within the "major" parties (Mike Gravel and Dennis Kucinich, for example). And, running on the Libertarian Party line, I can choose between Steve Kubby, George Phillies and Christine Smith in full confidence that any of the three, if elected, would make unilateral, unconditional and immediate withdrawal of US forces from Iraq a first order of business. Or hell, Cynthia McKinney is seeking the Green Party line.

The electorate suffers from no shortage of anti-war candidates whom any voter may choose to support or not support. Nor, in my opinion, are libertarians bound by any a priori strategic or ideological constraints against choosing a candidate other than Paul to support.

Even setting aside partisan/strategic considerations, I prefer a candidate who doesn't hold the crossing of those imaginary lines on the ground hostage to his fear of "cultural balkanization" or to his (anti-Rothbardian, by the way -- see the 6th of the Libertarian Party Rothbard Caucus's "ten points") "particular orderism." I prefer a candidate who defends the rights of all people versus all states, not one who ascribes to some states a legitimate power to decree who may or may not marry whom, even if the Constitution must be damaged to implement that power. And I have plenty of candidates to choose from who are sound not only on foreign policy, but on those other issues as well.

Even as I've written this piece, I've been struck by the notion that perhaps I am a Rothbardian in at least some sense.

My logic is more Misesian that Raimondo's where values are concerned, and I suspect he's somewhat skewed in his evaluation of others' actual valuations in any case. Quoth he in the Nation article concerning the "beltway libertarians" at Cato:

As long as they can abort their babies and sodomize each other and take as many drugs as they want to, they are happy. They don't care who is being killed in Iraq and how many Iraqis are dying. That's their hierarchy of values.

... which, whatever my problems with some of Cato's line may be, I don't believe for a moment.

Furthermore, I've not only preserved "primacy of foreign policy" as a voting consideration (even if only through luck of the draw), but I've chosen a candidate who out-Rothbards Ron Paul on "particular orderism" as applied to immigration.

Go figure. Perhaps Rothbard's biographer should crack his own book.

Necessary Roughness

Note Well: I have said this before, but I'm going to keep saying it in case anyone missed it or expects that it's changed. Repeat after me three times: Tom Knapp is a Kubby partisan. Tom Knapp is a Kubby partisan. Tom Knapp is a Kubby partisan. I'm not neutral, I'm not even-handed, and I'm not interested in talking about any weaknesses from which my own candidate might suffer (I'm interested in knowing about them, of course -- so I can snuff them out before you find out about them). If you're one of my candidate's opponents, I may like you -- in fact I probably do, and maybe the feeling is even mutual! -- but I'm going to mercilessly hammer at every chink I perceive in your armor. No hard feelings on my part. If there are any on yours, well, tough.

So: George Phillies, come on doooooowwwwn! You're the next contestant on "Your Position Is Not What You Just Said It Was!"

From Wednesday's Kubby/Phillies debate on The Liberated Space:

"First, I've never proposed tariffs on China. That was an invention of GE Smith."

Then, from George's campaign web site -- curiously, this position paper is no longer linked to his "issues" page, but was still on the server as of noon CST 12/07/07:

When a country is a dictatorship that suppresses labor unions and shoots labor organizers, the goods it exports are stolen property, stolen from the workers coerced to make them. Stolen goods cannot be traded freely. We should not engage in 'free trade' in stolen property. Furthermore, it is only fair that all manufacturers pay the same taxes. We may differ as to what those taxes should be. However, there should not be one tax rate for Ford Motors, and another much higher tax rate for General Motors. When we place a financial burden however labeled on American manufacturers, fairness dictates that foreign imports be subject to the same burden, a tax equivalent to whatever minimum wage and environmental restrictions foreign manufacturers are avoiding.

Finally, from your friendly Internet dictionary server:

Tariff \Tar"iff\, n. [F. tarif; cf. Sp. & Pg. tarifa, It. tariffa; all fr. Ar. ta'r[imac]f information, explanation, definition, from 'arafa, to know, to inform, explain.] 1.A schedule, system, or scheme of duties imposed by the government of a country upon goods imported or exported; as, a revenue tariff; a protective tariff; Clay's compromise tariff. (U. S. 1833) [1913 Webster]

Has George Phillies uttered the sentence "I propose tariffs on China?" I have no idea.

Has George Phillies proposed tariffs on China, whether he said those actual words or not? Yes, he has -- unless perhaps he's alleging that GE Smith hacked the Phillies 2008 web server, created a fake Phillies position paper out of whole cloth, and then somehow made it impossible to delete that paper while otherwise leaving the server accessible to George's campaign staff for other updates.

Congratulations, George! You're a winner on "Your Position Is Not What You Just Said It Was!" We hope you'll enjoy your prize, a printable/frameable portrait of US Representative W.C. Hawley (R-OR) and US Senator Reed Smoot (R-UT) shaking hands after plunging America into the Great Depression with their take on your idea.



And now for a word from our sponsors ... zzzzzzz ....

Welcome back! It's time for the Grand Prize Round on "Your Position Is Not What You Just Said It Was!" Fresh off his first-round victory, contestant George Phillies says:

Second, my immigration position is the position of our Libertarian Party in its platform.

It's going to be a close one, folks. Let's check our contestant's web site:

Immigration - I support the Libertarian Party Platform. You cannot have open borders and a large-scale welfare system at the same time. You will go broke. As has happened before in our history, if you have open borders poor country governments will pay people to move here, promising them a better life in the New World. Each time we add a worker to the Social Security system, we enormously increase our (unfunded) national debt, because Social Security is run on pay-as-you-go. Under the present welfare system, a vote for open borders is a vote for higher taxes for all. Someday, the Libertarian message of peace, liberty, and prosperity reach the entire world. All people will then enjoy the freedom and high standard of living we take for granted. In that day, immigration and open borders will be non-issues.

Borders - Americans who quote the Statue of Liberty's message 'Your huddled masses yearning to breathe free' should remember that it was written when most of Europe was run by autocratic monarchies. The huddled masses of Europe now breathe free. George Bush has created many enemies for America. Keeping them from coming here to injure our children and grandchildren must remain a top priority for the foreseeable future.

Foreign Workers - All too often, we hear claims that we must import foreign workers because Americans won't do those jobs. 'Those jobs' in question are hard, physically demanding, outdoor work that require constant, careful attention to detail. Those jobs should be receiving a wage premium, not be barely-minimum-wage sources of employment. There are jobs that Americans won't do, notably in the sciences and engineering; we allow foreigners to come here to study, but then require them to leave. Mr. Bush's foreign guest worker scheme is a corporate welfare deal at the expense of the American worker.

Now, let's go to the platform of the Libertarian Party:

The United States government should return to the historic libertarian tradition of avoiding entangling alliances, abstaining totally from foreign quarrels and imperialist adventures, and recognizing the right to unrestricted trade, travel, and immigration. [emphasis mine] [Source: Front matter of Plank IV, "Foreign Policy"]

It's looking good for George, ladies and gentlemen. Can he get over the top? Let's see:

Economic freedom demands the unrestricted movement of human as well as financial capital across national borders. [Source: Plank IV.1, "Immigration"]

He's going for it, folks! He's going all the way!

Transitional Action: Ensure immigration requirements include only appropriate documentation, screening for criminal background and threats to public health and national security. Simplifying the immigration process and redeployment of surveillance technology to focus on the borders will encourage the use of regular and monitored entry points, thus preventing trespass and saving lives. End federal requirements that benefits and services be provided to those in the country illegally. Repeal all measures that punish employers for hiring undocumented workers. Repeal all immigration quotas. [Source: Op.Cit.]

Woooo! Vanna, raid the prize closet! We've got a Champeeen! Everyone say it with me, now: George, "Your Position Is Not What You Just Said It Was!" Let's give it up for George, first-round winner and now Grand Prize titleholder! What do we have for our contestant, Vanna? A vowel? No, no ... we don't want him to buy anything, we want to give him something. Wow. I'm whelmed, Vanna. You really know how to pick'em. George, you've won ... a book recommendation! Check out this classic political manual to help you further your poltical aspiratons along their current lines!



Thanks for playing, George, and everyone tune in next week for another exciting game of "Your Position Is Not What You Just Said It Was!" -- if we can find a guest. We were planning to have Lou Dobbs on, but we think maybe we just did.

Candor, compromise and consistency

An open letter from Steve Kubby, published in full for your edification - TLK

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Dear friends,

As "decision time" for the Libertarian Party's 2008 presidential nomination draws closer, the gloves are beginning to come off. At the beginning of my candidacy, I committed myself to running a "high road" campaign and engaging my opponents on issues and experience, not on personality. I intend to stick to that commitment ... but I also want to ensure that my fellow Libertarians have the FACTS at their disposal when considering their options.

Over the last few months, several of my fellow Libertarians -- Libertarians who backed and supported my campaign early on -- have decided that another candidate, Christine Smith, better represents them. The main reason cited for this change of heart has been my endorsement of US Representative Ron Paul's campaign for the Republican Party's presidential nomination.

It is not my intention to attack Ms.Smith here. So far as I can tell, she's a fine individual who represents the Libertarian Party well in her public communications and whose decision to seek our party's presidential nomination has made the race more interesting and more issues-centered. We are, however, opponents in the sense that we're both seeking the same position and that only one of us can be "hired" to fill that position. As it becomes more and more clear that Ms.Smith and I both appeal to "the libertarian wing of the Libertarian Party," I think that it's time to talk about our differences -- and our similarities.

The place to start is, I think, with the issues. Ms. Smith's campaign platform is thoroughgoingly libertarian, as is mine. The main difference between us in that respect is that while her issues positions have evolved in a libertarian direction over several months, I have a record of taking libertarian policy positions and sticking to them over the course of more than a decade of Party activism.

By way of example, I offer the issue of immigration.

I am, and always have been, a pro-immigration libertarian who opposes the use of imaginary lines, drawn on the ground by politicians, to limit the freedom of peaceful individuals. Don't take my word for it -- do a little Googling. You'll find that my position has remained the same, and that I've argued publicly and forcefully on its behalf for many years. The position paper on my campaign web site was posted nearly a year ago and has remained unchanged since.

Ms. Smith's web site also offers a stirring, thoroughly libertarian take on immigration ... today. Only a few months ago, however, her position on the issue was very different. Under a hypothetical President Christine Smith of March 2007, "[t]he American citizens of states and cities will have jurisdiction over non-citizens inhabiting their communities" based on a "sovereign right to control the influences and development of their society and its culture." Once again, don't take my word for it. Ms. Smith's positions, now and then, are easily accessible to anyone who cares to look for them.

I'm more than happy to see that Ms. Smith has gone from "states' rights conservative" to "radical libertarian" on the immigration issue over the course of only a few months. I'm not inclined to question the sincerity of that conversion -- but contra her implicit claim to constancy of view in a recent manifesto on compromise ("... advocating freedom always on all issues. This is what I devote myself to in my writing, public speaking, and now in this campaign"), it's obvious that her ideas on what freedom is and how it should be defended have undergone drastic revisions even within the timeframe of her presidential campaign.

I'm glad that Ms. Smith is discovering the consistency and applicability of libertarian ideas. That discovery is a fascinating and enlightening journey, and one which never ends. However, I submit that the first steps on such a journey are best taken in smaller shoes than those we expect our presidential candidate to be wearing now, or 11 months from now.

I believe that my long-time advocacy of plumb line libertarian positions on the issues, compared to Ms. Smith's recent and ongoing conversion, differentiates us as candidates. If I may be so immodest as to say so, I believe that it casts me in better light as your prospective nominee. I'm advocating the same positions now that I advocated a year ago and ten years ago, and I will be advocating those positions a year from now and a decade from now. And I've established a track record for turning those positions into public policy that none of my opponents can match.

Now that I've covered a difference, I'd like to cover a similarity WITH a difference: My endorsement of Ron Paul's Republican presidential candidacy.

Yes, I have endorsed Ron Paul for the Republican Party's presidential nomination. I've stated that if he seems set to gain that nomination, I will withdraw from the LP contest and urge the LP to nominate NOTA and endorse Paul in the general election. I know that that makes some of my fellow Libertarians uncomfortable, or even angry, but I believe that the course I've taken on the issue is consistent with the best interests of the libertarian movement and the Libertarian Party. I'm not going to retract my endorsement, and I'm not going to apologize for it.

Ms. Smith has also endorsed Ron Paul, numerous times. She's just done so implicitly rather than explicitly. She's made public statements in support of Ron Paul's performances in the Republican presidential debates. She's lauded him for legislation he has introduced or sponsored in the US House of Representatives. She has appealed to his supporters to contribute to her campaign as a sort of "backup effort."

The two differences between us on this issue, as I see it, are these:

- I've put my money where my mouth is. I haven't just said nice things about Paul -- I've formally endorsed him and publicly pledged to set my own ambitions aside and do what I believe is best for our movement if he succeeds. Ms. Smith has been far more laudatory of Paul than I have, but has declined to give substance to her accolades. If Ms. Smith believes the things that she says about Paul, I urge her to act on that belief, make her multiple tacit endorsements of his candidacy formal and explicit, and declare her willingness to stand aside if her aspirations and his potential come into conflict.

- I cannot claim to have read or heard every word that Ms. Smith has uttered during the course of her presidential campaign. However, in my experience Ms. Smith's mentions of Paul have been singularly positive and have omitted any mention of issues on which she and Paul disagree. Specifically, Ms. Smith and I substantially agree -- and disagree with Ron Paul -- on issues like immigration and same-sex marriage. Because I believe these issues to be of great importance, I've made it a point to emphasize my disagreement with Congressman Paul on them whenever I discuss his candidacy and my endorsement. So far as I can tell, Ms. Smith has given Dr. Paul a "free pass" on issues where we both agree that he is wrong, and where I consider it the duty of a Libertarian candidate to SAY he's wrong so as to minimize the association of Paul's positions on those issues with libertarianism and with the Libertarian Party.

To summarize: My endorsement of Ron Paul has been explicit, but qualified. So far as I can tell, Ms. Smith's endorsement of Paul has been tacit, but unqualified. Because several of my former supporters have cited my endorsement of Paul as a reason for their decision to instead support Ms. Smith, I urge them to look more closely. I believe that Ms. Smith's position and mine on the matter are very similar, but I believe that I have been more forthright, more consistent, and more attentive to the important issues here.

After more than a year in the saddle of a presidential nomination campaign, I remain committed to the freedom movement and to the Libertarian Party -- and that commitment stretches back for years with a consistency that I'm proud of. As our nominating convention grows closer, it becomes more difficult to come to grips with one's opponents without seeming mean or spiteful -- but come to grips we must, and I'm going to do so even if some feelings get hurt. Part of being a presidential candidate is standing one's views and record up next to the views and records of one's opponents and saying "look -- I'm better." It's hard to do that sometimes. If I didn't BELIEVE that I am the best candidate among those from whom you are asked to choose, I wouldn't bother. I DO believe that, and I hope that upon examination of your options, you'll reach the same conclusion.

Over the next few months, I hope to have the opportunity to talk with many of you about my campaign and about why I believe that I am the right choice for the Libertarian Party's 2008 presidential nomination. In the meantime, let's move forward as comrades in the cause of liberty, keeping our eyes, ears and minds open so that we can make the best choices for our party and our movement. Best wishes, and

Let Freedom Grow!
Steve Kubby
Libertarian for President

Quote of the Week

Frankly, you can worship the baby Jesus and drink nothing stronger than milk, or you can sniff glue and marry a goat, I don’t give a damn. Just leave me out of it and leave the government out of it.

That's Tom Blanton, commenting on an article over at Last Free Voice.

As a side note, Blanton recently flirted with a presidential candidacy on the Guns and Dope Party ticket in another comment, this time at Third Party Watch ... and I've tagged on for veep!

I don't expect to vote for us -- hell, I don't even endorse us! -- but I'm always in for an excuse to reproduce Guns and Dope Party Position Paper #23:

Little Tony was sitting on a park bench munching on one candy bar after another. After the 6th candy bar, a man on the bench across from him said, "Son, you know eating all that candy isn't good for you It will give you acne, rot your teeth, and make you fat."

Little Tony replied, "My grandfather lived to be 107 years old."

The man asked, "Did your grandfather eat 6 candy bars at a time?"

Little Tony answered, "No, he minded his own fucking business."

On to victory!

Decisions, decisions

A little about the Libertarian Party's new fundraising program, Liberty Decides:

Some of the LP's presidential nomination candidates seem to think it's a very good idea. Others aren't as happy about it.

Steve Kubby endorses/pitches the program on his campaign web site.

Christine Smith notifies her supporters that a contribution to Liberty Decides is not a contribution to her campaign on her site.

George Phillies doesn't, so far as I can tell, reference the program at all on his campaign web site, but does respond to it in comments over at Third Party Watch.

My take on it is pretty simple: It's not perfect, but it ain't bad, either. I wish that Ron Paul hadn't been surreptitiously slipped into the mix in various ways, and I wish like hell that Libertarians were contributing to Libertarian pre-nomination campaigns, but Liberty Decides is a smart reaction to a known historical phenomenon.

To wit, in 2004 the Libertarian Party nominated a presidential candidate whose campaign treasury was so tapped out that he couldn't afford a room at the hotel where the convention was held. That's not intended as a slight on Michael Badnarik -- he ran a winning nomination campaign on a shoestring budget, and that's something to be admired.

However, broke is not where you want your campaign to be at when you've just won the nomination and are ready to start contesting the general election. Badnarik had to scramble. He raised a million dollars in five months and ran a very credible campaign on that minimal budget ... but how much more might he have been able to accomplish had the LP been building, in advance, a post-nomination fund for whomever the party nominated?

Liberty Decides is pitched as a way for party contributors to tout their support for this or that candidate (each candidate's spot on the LD page shows a total of contributions made "in his or her name"), and much of the money collected goes to support regular party operations -- but 40% of it goes into a general election fund for "coordinated expenditures" to promote the party's presidential ticket in the general election. I think that's a good thing.

I understand why some of the presidential candidates don't like Liberty Decides much. This is a hardscrabble nomination campaign already: Ron Paul has sucked the air out of the LP room, and the only campaigns with much money are the ones for candidates with sufficient wealth to bankroll themselves to a degree instead of relying on contributors. It's not unreasonable to assume that some of the money going into Liberty Decides would, in the absence of the program, have flowed instead into their campaigns.

George Phillies in particular has long been a critic of the national organization's fundraising and spending priorities and habits, and doesn't see Liberty Decides as a turn in the right direction. He's not just a talker, either, he's a doer -- principal officer of Freedom Ballot Access, which is exactly what it sounds like (Steve Kubby and myself both also serve on that organization's board, btw).

I see it somewhat differently. Yes, I wish that y'all out there would start sending checks to the Kubby campaign, and I encourage you to do so. But ...

... if you're not absolutely sure which candidate you support, or if you've "maxed out" to that candidate, Liberty Decides looks like a damn good place to invest in the party's success. The nomination will surely sort itself out -- and I predict that it will do so in a way that doesn't obviously correlate to money raised or spent -- and once it has, I want to see the nominee doing some righteous ass-kicking right off the starting blocks.

Thanks

I'm back in (late last night) from a holiday trip, during the course of which I got to visit with my parents, my brothers, my sisters-in-law, my nephews and one niece and their better halves, and assorted grand-nephews-and-nieces, as well as show off my own trophy significant other and parade our little monsters to general awe and acclaim. I found out that one my nephews even reads this blog, when there's something here to read (more on that in a minute).

I need to get down to Springfield (Missouri) more often, and I'd like to do so on days when the cashew chicken places, Melter's, Crosstown Barbecue, McSalty's, etc. are open. Not that I'd have gone near them yesterday anyway. I was too full of turkey, ham, mashed potatoes, dressing, hot rolls, various and sundry desserts, etc. to go on a restaurant bender. That, and I have an ongoing toothache coupled with a combined physical/financial aversion to dentists.

Good stuff, though, and appropriate grounds for Thanksgiving. Except for the toothache part.

Now, a note on blogging, with special reference to Fred and Gene:

Yes, there are going to be periods when you don't see new material here. Sometimes a day, sometimes a week, sometimes a month or more. If you remove Kn@ppster from your bookmarks or links for that reason, I understand.

It's as simple as this: I enjoy blogging and find it worthwhile in many ways, but I'm not going to carry Kn@ppster around like a yoke on my shoulders that has to be moved a certain distance in a certain timeframe or the whip cracks. Sometimes I have other commitments that require me to keep my head down and my nose to other grindstones. Sometimes I don't have that much to say. And sometimes, whatever I do have to say, I just don't particularly feel like saying it here. When blogging serves my purposes -- practical, ideological or just plain ego-related -- I blog. When it doesn't, I don't blog. Blogging is my format (here), not my religion (anywhere).

That said, I have my ears to the tracks of my own motivation, and methinks I hear a surge of blog activity coming down them at me, fast. So stay tuned -- if you feel like it. If not, I'm sure we'll run into each other elsewhere, and maybe have a beer.

Bush Administration: Holocaust Deniers

The Bush administration has urged the US Congress not to pass a resolution declaring the massacre of Armenians in the Ottoman Empire to be genocide. Secretary of State Condoleezza Rice and Defence Secretary Robert Gates made a joint appeal hours before a vote by the House Foreign Affairs Committee. ... President George W Bush has made clear that he also opposes it. -- Rice warns against Armenia Bill," BBC News, 10/10/07

Tempest in a teapot? Sure. America knows the Armenian Genocide happened, the Turks know the Armenian Genocide happened, and the world knows the Armenian Genocide happened. If the US House of Representatives doesn't pass a resolution saying it happened, it will still have happened and we'll all still know it happened.

So, why is the Bush administration bending over backward to assist Turkey's government in denying that it happened?

In 2003, Bush insisted that the US had no choice but to invade Iraq based on claims which, in many instances, turned out to be (to put it mildly) questionable -- everything from the 1988 Halabjah massacre, for which the US reassigned responsibility from Iran to Saddam when it became necessary to make Saddam the bad guy, to the Magical Disappearing Weapons of Mass Destruction.

Four years later, Bush insists that the US mustn't even take the relatively mild step of ceremonially affirming its recognition of a known historical fact for fear of giving offense in the Middle East (hint ... you're occupying part of it and menacing the rest; how much more could this little resolution really hurt?).

I do confess that I don't understand the Turkish government's intransigence. After all, the genocide took place under the aegis of the Ottoman Empire, which no longer exists. It's not like any of the country's currently sitting rulers are culpable. Those most visibly guilty in the genocide were duly convicted of their crimes, and a number of them were executed, albeit extra-judicially, for their crimes. Why not just admit the atrocity and put it behind?

Maybe it's not such a teapot tempest after all. If it is why so much wailing and gnashing of teeth over it? And why does executive branch of the US government feel the need to publicly expose itself as a gaggle of craven holocaust deniers?

What's up with this?

Because I can

Be helpful, that is.

Over at Sitemeter, I notice that someone arrived at this blog from Google, searching on the string:

Popoli Greek Restaurant in Branson

They didn't find what they were looking for, but I know what they're looking for, so I'll go ahead and share. Someone else, looking for the same thing, may some time arrive here from a similar search.

The Greek restaurant in question is called Papouli's, and it's not in Branson -- it's in or near the town of Reeds Spring, a few miles down the road. It's probably been 15-20 years since I've eaten there, but back then it was a fine restaurant, run by a wonderful family. My mouth is watering just thinking about it, so I guess I'm going to have to get over to my favorite Greek restaurant in St. Louis some time soon (it's called Olympia -- great baba ghanoush!).

To get to Papouli's from Branson, take Highway 76 east out of Branson, all the way to Branson West (used to be called Lakeview, back before they got all fancified). At Branson West, you'll hit a "t" intersection. Turn right onto that road (it's MO 76, MO 13 and MO-265 all in one). This will take you to Reeds Spring. You'll cruise through the town with one hard, nearly mandatory left turn. Shortly after that, turn right on MO 248, and Papouli's will be on your left just after just a little bit (less than a minute, I think). All told, less than 20 miles from Branson and well worth the drive.

To get there from Springfield, Missouri, take Highway MO 13 south (it's Campbell Street while you're in the city), turn right on MO 248, and you'll find Papouli's on your right as you approach Reeds Spring. If you hit a "t" intersection, you've missed it.

Bon appetit.

Blast from the past: The Age of Reason?

Yes, I know that this piece is inordinately long for a blog post -- but I've been wanting to get it back into circulation ever since its original publication venue (The Laissez Faire Electronic Times) went out of business. I think it holds up reasonably well, I'm currently involved in a conversation to which it's relevant, and I'm interested in seeing the blog comments on it. Besides, Fred M. throws a fit whenever I stop posting regularly. So here.

The Age of Reason?
Child Molestation, Child Porn, and Jurisprudence

Controversy versus Taboo

"Controversial" is insufficiently descriptive of the issues which this article raises and attempts to dispose of. Libertarians are no strangers to contention and dispute, nor do we shrink from supporting a minority position if that position passes the litmus test of principle.

The problem with issues of child molestation and child pornography is not that they engender controversy, but that they don't engender controversy. These issues long ago exited the realm of public discussion. They are taboo ("excluded from use or mention,"[1] emphasis mine), except when their alleged practitioners are dragged out to the literal or figurative pillory, at which time it is permissible for one to beat one's chest and loudly declaim one's renewed dedication to that taboo. Or, of course, to remain silent (if that -- silence may engender suspicion).

For lack of public debate, the parameters of taboo remain blurry. There's no consensus of definition to balance a consensus of condemnation. This vagueness reacts in deadly combination with the tendency of the state to translate social norms[2] into enforced law.

A consensus that condemns theft, murder or any other number of ills can form around a hard nucleus of debate as the meaning and scope of those terms and the appropriate punishment for violation of them. The debate itself -- influenced by the wax and wane of various advocacy factions taking part in it -- creates the parameters within which legislation will operate. The "right" side may not always win, but all sides are free to argue their cases.

Taboo puts an end to debate; an end to debate throws an undefined social consensus at the state and that definitional vacuum is then stuffed full of the arbitrary and the artificial. The consequences of this fiat will, almost certainly, eventually extend far beyond the parameters that the original taboo encompassed.

Nowhere is this effect more obvious than in the cases of child molestation and child pornography.

A Nod to the Taboo

That these issues are taboo is clear, and should be made more clear by the fact that, at this point in the article, I find it necessary to issue a disclaimer. I am not, nor have I ever been, a child molester or child pornographer; I've never been accused of being a child molester or child pornographer; I've never in any way, as best I can tell, conducted myself in a manner that would place me within, or close to, either the arbitrary and artificial parameters set by the state, or the "fuzzy" parameters which the taboo itself represents.

That these latter parameters are, indeed, fuzzy should be made clear by the fact that, having read my disclaimer above, I find it necessary to partially disclaim the disclaimer. As a minor, I engaged in several sexual acts with other minors. While this is not uncommon, in some jurisdictions (and, no doubt, according to the reasoning of some factions which would exist within the debate, if there was a debate), those activities might, have indeed, placed me in the class which the main disclaimer attempts to exclude me from, or in the class of victim to such a class.

Child Molestation and "Age of Consent"

Within what we tend to think of as "the civilized world," child molestation is a nearly universally condemned activity, generally defined as occurring when an "adult" engages in sexual acts with a "child." I regard this condemnation as right and proper. So, I think, will most of those who read this article. The condemnation is of sufficient universality that it certainly constitutes a social norm.

There is, however, considerable (if generally unexpressed due to the prevailing climate of taboo on the subject) variance of opinion on the matter of how "child" and "adult" are defined. This variance of opinion is important, not because all such opinions are correct or because one must be chosen, but because it is the missing element in the parameters of the taboo, and the element which has been substituted for by legislative fiat.

Dictionaries abound with definitions of "child" and "adult" and cultures, historically and at present, are rife both with standards, rituals and ceremonies for marking the dividing line between them and for prescribing or proscribing particular behaviors of, and interactions between, the two classes.

It's tempting, given the diversity of definitions and standards available, to abandon any attempt to define "child" and "adult" and leave the state to its arbitrary postulates. There is, however, a common thread that seems to cut across cultures and that will, I think, serve us well in examining the whole issue.

In most cultures, "adulthood" implies that one is recognized as both free to exercise all prerogatives available to a member of the society in question and as bound by all restrictions (as well as covered by all punishments) for exceeding those bounds.

And, in most cultures, "childhood" is defined in terms of not having yet achieved a state which entitles and obligates one in those ways. It's a dependent definition. A child is "not an adult."

The means of determining when an individual has crossed the line from "childhood" to "adulthood" may be as arbitrary as those of the state, or they may consist of some test or demonstration, or some combination thereof; this latter is properly exampled by the Jewish customs of bar-mitzvah and bat-mitzvah, which take place at an arbitrary age (13) but which follow an extensive period of instruction and testing in the Torah and the obligations of a Jew and culminate in a demonstrative recitation and speech at a "coming of age" ceremony.

I believe that the difference between "childhood" and "adulthood" is best described as an individual having crossed the line between being unable to exercise the prerogatives of, and be held accountable for violations of the restrictions imposed upon members of, the society in which he or she lives and being able to do so.

As an individualist, and as one who lives in a multi-cultural society with all that that signifies, I further hold that the proper dividing line, for legal purposes, between "childhood" and "adulthood" is marked by the question of competence.

There is, in fact, a basis in American jurisprudence for handling evaluations of "childhood" versus "adulthood" on that basis:

- Persons over the arbitrary statutory age marking "adulthood" are, routinely, held by courts to be incompetent and relegated to the care of guardians. These rulings may stem from a determination that a person is inherently developmentally disabled, or that he or she has become incompetent due to mental illness or age- induced mental infirmity.

- Persons below the arbitrary statutory age marking "adulthood" are, routinely, extended adult entitlements ("emancipated minors" who take control of their own financial affairs on the claim that their parents or guardians are administering those affairs incompetently or for their own benefit) and adult consequences (juveniles "tried as adults" for crimes of which they are accused) by the courts as well.

It seems clear to me that American (and, presumably, European and other "civilized") jurisprudence recognizes, in some ways, that the distinction between "childhood" and "adulthood" does not subsist in naming and enforcing an arbitrary age marker, but in evaluating the competence of the individual in question in any particular matter.

This logic, however, is not generally applied to "age of consent." The arbitrary age marker is sacrosanct; if a statutory "adult" is accused of engaging in sexual acts with a statutory "child," the defense that the "child" in question is, for all practical purposes, an "adult" may not be presented to a jury for consideration.

Time for another disclaimer: I have not thoroughly researched arbitrary statutory ages and practices of jurisprudence in countries outside the United States. There are, apparently, some countries which have no "age of consent" laws at all. The countries seem, for the most part, to also be countries which have a large measure of extra-legal application of religious writ to sex outside of marriage, however. I am limiting the scope of this article primarily to the United States both because I suspect that I am addressing a largely American audience and because it is not within my current ability to cover the comprehensive, worldwide picture with the thorough research that it deserves.

Data on "age of consent" laws is available for your perusal at ageofconsent.com.[3] I am using those statistics, although I am told that some of them are rapidly being superseded, because they represent a starting point which has, at one time or another, been verified as accurate. That some of the particular numbers may have changed is irrelevant to the general case.

Within the United States, "age of consent" laws vary from state to state, with a low of 14 (Iowa, Missouri, South Carolina) and a high of 18. This is quite a spread (pun not intended), and underpins the case I am attempting to make.

Is there any particular reason to believe that a 14-year-old Iowan is inherently more competent than a 17-year old North Dakotan to consent, or not consent, to sexual relations with another person?

Is there something in the water that stunts the mental development of Oregonians, leaving them incompetent to make such choices until they are 18? Something that is absent from South Carolina's water? South Carolinians are considered fully competent to do so at 14 and 16, depending on their gender.

I don't agree that any of these arbitrary age designations have anything more than a tangential relation to reality. They exist because child molestation is, properly, regarded as a criminal act. They exist as arbitrary designations because child molestation has taken on the characteristics of taboo -- since the issue can't be openly discussed, drawing a number out of a hat has been substituted for crafting a rational system of differentiation between "child" and "adult" where it is concerned.

This substitution of random fiat for rational differentiation carries with it several side effects -- none of them good.

- Irrational laws are not generally uniformly enforced by the police. The Baton Rouge police are not likely to haul in a 19-year-old female for having sex with her 16-year-old boyfriend. That's a good short-term outcome, of course ... but do we want our law enforcement agencies selectively ignoring the law? And to what extent might a Baton Rouge police officer be corrupted by the knowledge that he has an "offense" that he can hold over this 19-year-old to get, for example, sexual favors for himself?

- It's difficult to get convictions on the marginal cases of offenses against irrational laws. If that 19-year-old does find herself in court, the jury is not likely to see her as a "child molester." They're likely to acquit, having judged not only the facts, but the law. This, again, is a good short-term outcome. But jury nullification, while a sound doctrine, is best kept to a minimum by not having stupid laws that juries feel compelled to nullify. And what about the prosecutor who just got his head handed to him? Having spent a portion of his budget on this case, and lost, isn't he less likely to bring future cases of its kind to court? Will a real molester -- a 21-year-old who gets caught having sex with an 11-year-old, perhaps -- walk free because of prosecutorial "gun-shyness?"

- And there are, of course, the actual convictions. While I submit that a 25-year- old who has "consensual" sex with a 3-year-old indeed belongs in jail, I am not at all convinced that an 18-year-old high school senior who is found in the back of his car with his 16-year-old sophomore girlfriend, both sans culottes, deserves a stay in the gray-bar hotel. We have enough criminals without manufacturing more.

State, Minimal State and Free Society

My thesis, thus far, has depended on a conflation of society and the state as we know it, or at the very least an assumption that the latter's rules and actions will be largely dependent upon the former's norms. I regard this as a defensible construct, but it is, nonetheless, a construct. A momentary digression, for the purpose of applying my thesis to minimal states and free societies, is called for.

All but the most nihilistic among us recognize that any foreseeable future society will incorporate, as one of its basic features, institutions of "law." The form and content of these institutions may vary. Law and jurisprudence may be centralized monopolies of the state, or decentralized, competitive sets of market offerings, but they will both exist. All society results in dispute; therefore, all society requires means of dispute resolution.

Further, it seems likely that law and jurisprudence will incorporate, and evolve along with, the norms, assumptions and taboos of the societies which they serve.

Finally, any foreseeable future set of societal norms, whether enforced by a centralized, decentralized or competitive market apparatus, is likely to include a proscription on the activity I've herein referred to as "child molestation." Any future institution of law or "jurisprudence" is likely to be called upon to dispose of cases involving allegations of that activity.

In other words, the offense of "child molestation" does not go away with the disappearance of the state as we know it, or with the disappearance of "age of consent" laws as we know them.

Even in the most extreme alternative scenarios -- for example, one in which all law becomes tort law and non-adults are considered property of their parents or guardians rather than "people" -- the issue will continue to exist. Was a particular act a consensual act between two people, or was it the act of a tortfeasor (the "adult") against the property (the "child") of another? Some person or institution will be called upon to render a verdict.

It is my argument -- or at least my hope -- that the modification in current thinking which I propose below will serve future institutions of law and jurisprudence and in varying environments as well as it would serve were it adopted by current institutions in the current environment.

Rebuttable Presumption Versus Arbitrary Statute

Imagine, if you will, a rope with two anchors. One of these anchors is the arbitrary language of statute. The other is the institution of the jury. The rope itself is what we might think of as the barrier of justice, held taut against particular actions when tension is maintained between the institutions at either end, and occasionally raised or lowered when one of those institutions acts to move it.

Arbitrary statutory language remains, to a large degree, fixed and immutable, at least with respect to a particular defendant accused of a particular action at a particular time. The legislature may change the law, but in most even nominally civil societies it does not do so ex post facto or in response to the plight of a particular defendant. Its movements are slow; their pace is dictated by the slow osmosis of changing societal norms, across the barrier of elections and into the composition of the legislature itself. This process might be more immediately responsive to such changes in a market-driven system, but it would still not be instant.

A jury, on the other hand, operates with
respect to particular cases and is free to raise or lower the barrier of justice when it perceives that the unique aspects of a particular case require it to so act. The jury is even free to effectively nullify the will of the legislature (and when juries do so on a regular basis, they act as agents of the aforementioned osmosis).

Naturally the state, ever jealous of its status as the promulgator of arbitrary statutory language, attempts to minimize the ability of juries to nullify that status. It does so in many ways, among which are attempts to deprive jurors of knowledge of their authority to nullify and, more importantly to this thesis, by creating an ever more tangled web of arbitrary statutory language which juries do, naturally, at least take into account in any given case.

In cases of alleged child molestation, the state attempts to bind juries with arbitrary statutory language. "Your role," the state, in the person of a prosecutor or judge, says, "is not to determine whether the law is right or wrong in this particular instance. Your role is only to ascertain whether the arbitrary statutory language has, or has not, been violated." The taboo is thus preserved: discussion of the real issue has been avoided. The jury evaluates only the facts, leaving the law itself untouched and unquestioned.

My proposal, crafted by way of abrogating the line of taboo, is simple: there should be, as there are in many other areas of law, rebuttable presumptions which the prosecution and defendant are permitted to address and which the jury is entitled to evaluate.

Let us examine the multiple bases involved in a complaint of child molestation. There are several elements.

- Did sexual intercourse, or some other sort of sexual contact, occur? This is a question of fact. If the jury finds that no such intercourse or contact occurred, that's generally the end of the issue. Acquittal is nearly certain, for the good reason that the allegations are baseless in their entirety.

- If sexual intercourse, or some other sort of sexual contact, occurred, did both or all parties to said intercourse or contact consent? If one party plainly did not consent, then the other parties are prima facie guilty of rape, sexual assault, child molestation.

It is on point two that the state intervenes on behalf of the taboo. Using arbitrary statutory language, the state holds that persons below a given age x are inherently unable to meaningfully consent to intercourse or other sexual contact. The state, in the persons of the prosecutor and the judge, attempts to prevent the jury from evaluating the issue of consent in cases involving alleged victims below the age of x.

My proposal, of course, goes to the abrogation of this arbitrary statutory admonition. In cases where the alleged victim claims to have consented to sexual intercourse or other sexual contact, determining that alleged victim's ability or inability to meaningfully do so is a process properly falling within the purview of the jury's deliberations.

There should, in other words, be a factor of rebuttable presumption which prosecutor and defendant are free to address.

In what direction -- for or against the ability of the alleged victim to meaningfully consent -- should such a presumption be tilted?

Traditional American jurisprudence would put the presumption squarely in the defendant's corner. It is the affirmative burden of the prosecution to prove that consent did not and could not have taken place, not the defendant's to prove that it did or could have.

I confess, however, to a certain arbitrary bent of my own.

I regard it as obvious that a two-year-old cannot meaningfully consent to intercourse or other sexual contact and unlikely, in decreasing measure, that four-, six-, eight- or ten- year olds could do so. Somewhere around the age of twelve, my personal arbitrary presumption begins to shift from doubt of ability to doubt of inability -- that is to say that I consider it likely that some 12-year-olds might be able to meaningfully consent to intercourse, and more likely, in increasing measure, that 14- and 16-year-olds are able to do so. I regard it as obvious that an 18-year-old, unless he or she is in some way mentally or emotionally incapacitated, is capable of rendering meaningful consent to intercourse or other sexual contact.

Aren't my prejudices in this regard just as arbitrary as the state's edicts on the matter? Probably. However, I don't think it's especially arbitrary to posit some sort of continuum which might be used as a referent for how the burden of proof and tilts and for how the rebuttable presmuption equation changes.

In the case of a 20-year-old accused of molesting a two-year-old, I'd favor a rebuttable presumption toward the prosecution's argument that said two-year-old could not have consented. The burden of proof would be upon the defendant to prove, to the jury's satisfaction, that said two-year-old not only did, but could, meaningfully consent to the activity for which the 20-year-old is on trial (assuming that the activity did, in fact, take place -- if it didn't, acquittal is called for in any case).

In the case of a 35-year-old accused of molesting a 16-year-old. I'd favor a rebuttable presumption toward the defense's argument that said 16-year-old was capable of rendering meaningful consent. The burden of proof would be upon the prosecution to prove otherwise (assuming that the activity did, in fact, take place and that said 16-year- old did attest to having, or was established to have to have formally, consented).

As I've pointed out above, such presumptions are not alien to current jurisprudence. When a juvenile is arrested for a crime, a presumption exists that said juvenile is a "child," and not responsible for his or her actions. Prosecutors, however, may attempt to rebut that presumption by going to court and asking that said juvenile be "tried as an adult." In such cases, what the prosecutor is arguing is that, contra the arbitrary statutory definitions, the person in question was capable of meaningfully judging the effect and legality or illegality of his or her actions and is therefore fit to be held liable for those actions.

The same presumption exists in cases of juvenile emancipation. While a person below the arbitrary statutory age of "majority" is presumed a "child," said "child" may approach the court with a claim that he or she is fit to assume control of his or her life and economic affairs -- that, contra the arbitrary statutory language, he or she is, in reality, an adult.

If a judge is competent to rule on such arguments, is not a jury competent to evaluate the same arguments as applied in the cases it hears? What, other than the suppression of discussion that accompanies taboo, militates against allowing a jury, rather than the legislature, to exercise that power of judgment?

Not a damn thing.

Child Pornography

Issues of child pornography fall outside of, or at least closer to the borders of, taboo than child molestation per se. I can't say with any certainty why that might be -- unless perhaps it is attributable to the robust nature of debate on freedom of the press/freedom of "expression" -- but there exists at least some minimal basis of public discussion which might serve as an effective basis for rational jurisprudence.

The current debate centers largely around "virtual" child pornography -- depictions which are created digitally or artistically and in which no real children participate in any way. This debate obviously -- or at least it should be obvious -- is a tempest in a teapot. The advocates of suppression of "virtual" child pornography cannot produce a victim; therefore they are going to face extreme difficulty in attempting to create a crime. Equally obvious, from the standpoint of utility, is the fact that "virtual" child pornography potentially reduces the incidence of child molestation involved in producing "the real thing."

Let's turn our attention to the "real" child pornography: depictions of actual children (defined either under arbitrary statutory language or under the argument against it which I present above) engaged in sexual acts and purveyed for the purpose of catering to a customer's prurient interest in same.

There are two fundamental distinctions -- one of offense and one of property -- which the state fails to make in its handling of child pornography.

The first distinction -- the distinction of offense -- is this: the offense involved in child pornography is the act itself, not the depiction thereof. Child pornography is, by definition, documentary evidence of rape, molestation or other sexual assault. A person possessing it is a rapist, child molester or other kind of sexual assailant ... or an accessory after the fact to rape, child molestation or other sexual assault. It is for these offenses, not for the depictions per se, that their creators and possessors deserve to be prosecuted. And, in the case of the possessor, possibly not even for that.

My last point should become more clear with the second distinction -- the distinction of property. It seems eminently reasonable to me to hold that a victim of rape, molestation or other sexual assault is entitled, as a matter of course, to such restitution as is possible. One form that this restitution could take would be ownership of, and rights in, such depictions as might have been produced of the rape, molestation or other sexual assault.

In the case of minors or children, a court might place them under seal and in trust until such time as said children become adults and choose to take custody of their property. It might further enforce the copyright laws against anyone purveying reproductions of that property.

But, when the victim reaches majority (whether according to arbitrary statutory language or some proceeding for establishing "adulthood"), he or she would be entitled to take possession of their property and use it any way he or she deems desirable.

Any way? Yes. He or she might choose to have it destroyed, or to keep it private, or to reproduce and sell it to those whose prurient interests run to depictions of sexual acts involving children. The child, now an adult, might finally realize real, bankable restitution of at least one sort for the horrors of childhood.

But what about the people with said prurient interests? My argument on their behalf is based in both principle and utility.

There is no argument of principle which would justify forbidding a person to view such depictions as he or she finds satisfying unless, in doing so, he or she victimizes someone. On the contrary, principle would dictate both that the former victim be allowed to pursue such profit as is possible using the property gained as restitution, and that the pruriently interested be permitted to purchase that property from its rightful owner.

In terms of utility, the case is even more clear: For as long as the prurient interest in question exists, a market for material which caters to that interest will exist. Do we prefer that that market be served by further rape, molestation and other sexual assault, to the benefit of rapists, molesters and other sexual assailants, or that it be served by former victims who profit thereby?

There are some, of course, who will hold that not suppressing said market will encourage those with the prurient interest in question to act on that interest by committing rape, molestation or other sexual assault themselves. Proponents of this argument have, for several decades, attempted to establish a causal link between pornography and crime. Their efforts have been signally unsuccessful; and even giving those arguments the benefit of the doubt, is it not likely that those with a tendency to view pornography and commit crime will view pornography and commit crime whether viewing pornography is itself a crime or not?

Here, of course, taboo plays a role as well. One cannot advocate on behalf of the property rights of the victim, or on behalf of the prurient interest of the consumer, without laying one's self open to accusations of weakness toward the perpetrator of the crimes incident to production of "real" child pornography. With that in mind, I'll refer the reader to my disclaimer above, and add to it that I have never engaged in the production of, nor do I indulge in the possession of, child pornography of any sort.

Conclusion

The legitimate purposes of law are open to interpretation.

At the libertarian extreme, law is regarded as proper only to the defense of innocence against aggression, and to retaliation/seizure of restitution where such aggression occurs. It is clear that arbitrary statutory "ages of consent" and an across-the-board prohibition of "virtual" or "real" child pornography militate against the libertarian conception of law's purpose.

In the political "mainstream," law is often regarded as a legitimate instrument for enforcing societal norms. Such norms, however, can only be coherently translated into law when open discussion of the norms themselves is possible. When taboo becomes involved, there is an inherent distortion of societal norms, and that distortion in turn results in laws which not only set off a cascading set of unintended consequences but which militate against the effective enforcement of the norms themselves.

It is only at the authoritarian extreme, where the imposition of law for the sole purpose of extending political power prevails, that the current paradigm of "age of consent" or the current regime of prohibitions on child pornography are congruent with either principle or utility.

---

References

[1] http://www.dict.org/bin/Dict?Form=Dict2&Database=*&Query=taboo

[2] http://www.dict.org/bin/Dict?Form=Dict2&Database=*&Query=norm

[3] http://www.ageofconsent.com/

Do I smell Oscar?

Well, probably not ... but maybe Pollie! Here's episode one of Steve Kubby's new Internet video series.

If there's a hell ...

I'm pretty sure I know someone who's going there, regardless of how often she attends Mass, says the rosary, or proclaims her devotion to Jesus. I'm not going to recapitulate the story. CLS has it covered. Just one pull quote:

The court also said that "Jeanne told Brett that if Patrick was going to return to his life with Brett, after recovering from the stroke, she would prefer that he not recover at all."

I'm making a list. I'm checking it twice. And then I'm going to let the enterprises on that list know that I don't spend my dollars on naughty, only on nice.

The "Jeanne" in the story referenced above is the founder and president of Atkins International Foods, a company that makes desserts and other foods for retail and restaurant sale.

The first enterprise on my list is Bloomingdale's, the upscale department store. They apparently carry pastries made by Atkins International Foods (get used to the repetition of that phrase -- hello, SEO as agitprop tool!).

Now, I confess that I'm not a big Bloomingdale's shopper, but you may be. Let's you and me let Bloomingdale's know that we won't be buying any $335 briefcases or $119 sunglasses from them as long as they continue to stock Atkins International Foods products.

Do you ever get stuck planning events for your local libertarian group? Do you use a caterer? Please -- specify a menu excluding Atkins International Foods products.

And restaurants. Mmmm ... restaurants. I'm given to understand that Atkins International Foods does a lot of business with restaurants. Bear with me for a moment here ...

... I'm a dessert guy. If you don't believe me, ask my waistline.

I haven't found out which restaurants sell Atkins International Foods desserts yet, but I will (if you know of any, leave a comment).

The next time I dine out, and the time after that, and the time after that ... well, you get the idea ... I'm not going to boycott those restaurants. No, no, no. I'm going to pick a restaurant that serves Atkins International Foods desserts, and I'm going to go have myself a mighty fine meal.

BUT!

When we get to the "would you like to order dessert?" part, I'm going to answer -- just a little more loudly than is necessary, so that other customers can hear -- "I'd love to ... BUT! ... what do you have that is not made by Atkins International Foods? I don't buy their products, and I wish you would remove those products from your menu."

Petty and vengeful? You bet your sweet ass it is.

Petty as it sounds, if the same restaurant has even two such incidents -- maybe even one! -- it will be noticed. The manager will be calling his supplier to complain that the customers don't want Atkins International Foods. If it's a chain, the manager will pass word to the regional manager that something's going on with Atkins International Foods, and the corporate HQ will be calling Atkins International Foods to find out what's up ... with orders hanging in the balance.

So. Please. Do this with me. It's a minor inconvenience, and helping rectify this situation through voluntary action is the least those libertarians trapped in the "we don't want to dirty our hands addressing equal rights regardless of sexual orientation -- let's just wait a thousand years until the state is gone, problem solved" fallacy can do, since they eschew requiring the state to stop discriminating.

Jeanne Atkins seems to have a pretty one-sided view of the Good Book. I bet she has a similarly one-sided view of her checkbook. Let's give her something interesting to read and see if declining revenues are a useful instrument for teaching The Golden Rule.

Air time

Some radio plugs:

- Don't miss Libertarian Party presidential nomination candidate Steve Kubby this weekend on The Dangerous Doug Kendall Show. Saturday, August 18th, 1pm EST on WOIC 1230 AM, Columbia South Carolina, or listen on the Internet.

- As previously mentioned, Kubby also appears next week on Kevin Barrett's show "9/11 and Empire" on We The People Radio Network. As far as I know, this is "Internet Radio" only. Tuesday, August 21st, 7-9pm EST.

Moving away from 2008 presidential politics a little, I'm going to do some name-dropping. My good friend Lloyd Sloan's program, The Sloan Ranger Show, airs from 5-7pm CST each weeknight on WGNU 920 AM in St. Louis, Missouri (there's also a live web stream).

I'd be lying if I said his guest next Tuesday is also a "good friend," but I'll certify that he's an incredibly good writer and, on the basis of a little correspondence (have you ever emailed a "popular author?" You might be surprised at how friendly most of them are, and how willing to give a fan a minute of their time), a good guy, too:

Larry Beinhart wrote American Hero (the novel that was made into the film "Wag the Dog,"), as well as (more recently) The Librarian and Fog Facts: Searching for Truth in the Land of Spin. And three other novels. And a book for aspiring authors on how to write mystery stories.

I've read all of the aforementioned except for Fog Facts (which I'll be reading as soon as I can get it), and they're all well worth your time, even if you don't buy them through my affiliate links. He's not, strictly speaking, a libertarian. He doesn't claim to be one. More of a civil-liberties-oriented lefty with some powerful insights into the hall of mirrors that mass media and politics have become (in other words, someone I can break bread with even if he doesn't have a tattoo of Murray Rothbard on his ass).

Anyway, Beinhart will be on Lloyd's show next Tuesday, August 21st, at 6:15pm CST. Don't miss it.

Kn@ppster, Country Club Conservative?

It's not very often that the editors of National Review make the same kinds of arguments I've made on an issue ... and when they do, I'm usually inclined to reconsider my position.

Not this time, though.

Moi on the "Fair" Tax, here and here.

National Review on the "Fair" Tax, here.

I do see one point of disagreement, though: the NR folks think that the argument could be made that the "Fair" Tax would "send home prices into free fall" by getting rid of the mortgage deduction. I think that the "Fair" Tax would result in a housing shortage and skyrocketing home prices, since it would increase the building material costs of new homes by 30%, while not levying that 30% tax on used homes. Nobody would want to build a new house -- they'd go shopping for something previously lived in instead, increasing demand versus supply and driving the costs of those up.

Speaking of the "Fair" Tax, I noticed that Neal Boortz was in Iowa last weekend hectoring Republicans to support it. Good deal. If stumping for universal welfare and 50 mini-IRSes keeps Lester Maddox's old speechwriter too busy to go around trying to pass himself off as a "libertarian," it's good for something, anyway.

Unless of course the horse is Mr. Ed

Revised and expanded, from a comment over at Gordon's place:

Obviously if Ed Thompson decides to seek the Libertarian Party's presidential nomination, he'll be the odds-on favorite to win that nomination.

And, I think he'd do well (by historical LP standards) in the general election -- at least 600,000 votes even if the election is tight as a drum, perhaps much better if it looks like a blowout for the Democrats (or, much less likely, for the Republicans).

BUT (and yes, I know, I have a stake in this as I support a presidential candidate with whom he’d be in competition, so feel free to take it with as much salt as you like) ...

I think he'd be wasting his time and his potential.

He could win a state legislative seat with one hand tied behind his back -- something a Libertarian Party candidate has never done in a large/populous state.

That's not intended to be disrespectful of those Libertarians who have previously won legislative seats in New Hampshire and Alaska, so please don't take it that way. But those are both small (population-wise) states with legislative elections that are really a lot more like small municipal elections in scale. New Hampshire's lower legislative districts each represent a population of about 3,500; Alaska's, 15,000; Wisconsin's, more than 50,000. Wisconsin has about three times the population of Alaska and New Hampshire combined, and is located in the heartland. A state legislative victory in Alaska or New Hampshire is great. A state legislative victory in Wisconsin would be huge.

Thompson could also be very competitive, possibly victorious, in a US House race.

It's even just possible, if everything fell out just right, that he could compete -- this time with a chance of winning -- for the governorship.

I'd rather have a great chance at a Libertarian state legislator in a reasonably large midwestern state, a good chance at the first Libertarian US Representative, or a fair chance at the first Libertarian governor, than a so-so chance at attracting a little temporary attention by pulling a very marginal, rather than a very, very marginal, vote total in one presidential race.

We're a long way from becoming competitive in presidential politics. The presidential race serves some important functions (helping generate national publicity, etc.), but Thompson's credentials are too good, and just as importantly too Wisconsin-centric, to waste on a race he won't win when there are important races he very well might win.

In my opinion, Steve Kubby is at least as sound a pick as Thompson for the LP's presidential nomination, and probably a better pick -- where Thompson would be a much sounder candidate for Congress, the state legislature or the governorship in Wisconsin than Kubby would be in California (33 million population, 400,000 citizens per lower-house legislative district).

I'll be the last one to claim that Kubby's name is a household word, but his name recognition is probably more national than Thompson's, and he has proven appeal to a national constituency (drug policy reform advocates), where Thompson's appeal has been based on local and state issues (he's been mayor of, and currently sits on the city council of, Tomah, and he led a statewide effort to get tavern owners some parity with the Indian casinos by allowing them to have video poker machines in their establishments).

In terms of overall name recognition, it's not easy to tell who has the edge. "Ed Thompson" is a fairly common name, and Google returns 145,000 results on it, as compared to the much less common name "Steve Kubby" (68,500). The problem is sorting out which results refer to this Ed Thompson as opposed to some other Ed Thompson -- on the first page of search results, four of ten results appear to refer to "other Ed Thompsons," where "the" Steve Kubby goes 10 for 10 on that test. If the word "libertarian" is added to the search, Kubby returns 40,200 results, compared to only 12,200 for Thompson. Adding the word "Wisconsin" to the phrase "Ed Thompson" returns 18,700 results.

If I had to guess, I'd guess that a random sample name recognition poll excluding Wisconsin (and, to be fair if you wish, California) would say that more people recognize the name "Ed Thompson" than recognize the name "Steve Kubby" -- but that more respondents could actually identify "the" Steve Kubby than could identify "the" Ed Thompson in any meaningful way.

I guess we'll see what happens.

Something that really bugs me

I have only been arrested (by "arrested," I mean the full boat -- taken into custody, not just, in the literal meaning of the word, stopped by a police officer) once. While I certainly don't consider that to have been a pleasant event, in retrospect I have some good things to say about the behavior of the police officer who arrested me.

The officer was arresting me on the basis of a felony warrant issued in my name, and on the basis of identification of me by a reliable witness (my ex-wife -- this was a child support matter).

He politely asked me if I was who he had reason to believe I was.

He politely informed me that he was arresting me on the basis described above.

He politely asked me to put my hands behind my back so that I could be cuffed.

When I assured him that cuffs were not necessary and that I had no intention of resisting or fleeing, he politely informed me that his department's procedure required him to cuff anyone he transported in his patrol car as an arrestee -- and he removed the cuffs at a point that seemed to me to be as early as said procedure likely allowed for (at the police station, as soon as another officer was present and was informed that I had been thus far "cooperative").

In other words he did not assume, just because he had a piece of paper saying that he should detain me, that I was a dangerous criminal who was going to whack him and run at the first opportunity. Or if he did, he at least didn't let that assumption express itself in his treatment of me.

Segue to a few years later: My kids like TV, and lately their interests have been floating away from the Cartoon Network and toward channel-surfing for interesting stuff. For whatever reason, this includes a show called "COPS." I hadn't watched "COPS" for some years, because the drug and prostitution busts it covers tend to raise my blood pressure. Now, watching them again, there's something else. Before, it was ideological. Now it's more personal.

In nearly every bust on "COPS," regardless of whether or not any violence is alleged to have occurred or to be likely to occur, the thing seems to go in one of two ways:

SCENARIO ONE

"Exit the vehicle with your hands in the air."

"Turn around. Don't look at me. DON'T LOOK AT ME!"

"Place your hands behind your head, interlaced ... DON'T FRIGGIN' LOOK AT ME!"

"Walk backwar ... ARE YOU DEAF OR SOMETHING? I SAID DON'T LOOK AT ME! Walk backward in the direction of my voice."

"Drop to your left knee! Now your right knee! Put your hands behind your back, palms up! DON'T MOVE! DON'T LOOK AT ME!"

Cuffs on. End scenario.

SCENARIO TWO

"POLICE! GET ON THE GROUND! GET ON THE GROUND NOW! GET ON THE F--KING GROUND!"

Cuffs on, perhaps with a little gratuitous battering. End scenario.

Okay, look ... I'm not unreasonably suspicious of, or hostile to, police officers (okay, maybe I am, but I don't make a habit of going around bitching at them or anything). But this is just ... well ... bullshit, at least in 90% of the cases where I've seen it happen on "COPS."

The one that finally made me say "hey, I should blog about this" was an incident in which some teens in a car were suspected of having cheated the change machines at a car wash. The car they were in was not reported stolen. The owner of record on the plate call-in did not have a prior record or any warrants out for his arrest. When the flashing red lights came on, the driver pulled over immediately and did not do anything to indicate an aggressive intent.

So, how was it handled? Three more police cars came rushing up to surround the kids and officers leaped out, drew their weapons and aimed in on the car. All three of the car's occupants got the "EXIT .... TURN ... DON'T FRIGGIN' LOOK AT ME! ... WALK ... KNEEL" routine, one at a time.

These were some kids -- maybe 18, almost certainly not 21 -- with a bag full of quarters in their trunk.

"The safety of the officers" only goes so far as a reason for this kind of thing. And in my opinion, "only so far" means "not very far at all." I can see some of this behavior as being advisable in a situation where a suspected armed robber who's known to have a PCP habit is being pursued. But, for the love of Pete, did I mention that this was three teens with a bag full of stolen quarters?

C'mon, guys ... this kind of shit doesn't even come under "to protect and serve." It's not about officer safety. It's about "RESPECT MY AUTHORITAH."

I'd like to think (but can't know -- these techniques are calculated to disorient and get a reflexive response) that if I am ever arrested again, I will have the presence of mind to reject any command beyond "exit the vehicle with your hands visible."

After that, my hopeful line is "my hands are visible, and I am displaying no aggressive intent. No, I am not going to walk backwards for you. No, I am not going to kneel for you. I'll cooperate with being handcuffed, but I'm not your toy poodle. Until found guilty of something in a court of law I am entitled to a presumption of innocence, and I choose to comport myself as innocent. If you want me to grovel, tough shit -- you're going to have to commit assault and battery to get me on my knees or on my face. And yes, I'm looking at you. I'm not down with the whole secret police bit. I want to know who's arresting me."

And that's all I have to say about that.