Gun control and Haldig

There are two views on gun control.  Those who study original intent believe that the Second Amendment applies to individuals. That’s clearly what the founders intended.  (Read Joyce Malcolm for the historical background of the 2nd Amendment.)  Those who focus on the precise wording of the amendment are split, but some believe it only applies to citizens who are members of the National Guard.  (I don’t buy that interpretation, but my views are not relevant here.)

So we can assume that when and if Haldig is appealed to the Supreme Court, all the liberal justices who tend to uphold gun control laws will look at the precise wording of the ACA, and deny subsidies to people who purchased insurance through federal exchanges.  And all the conservative justices who often strike down gun control laws will look to Congressional intent, and uphold the subsidies.

I can hardly wait to see the Supreme Court implement the “judicial philosophy” of each member in the Haldig case!  Fortunately the members of the Supreme Court do not let personal political preferences interfere with their decisions.  Shame on you if you expect a split vote based on personal political preferences.


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66 Responses to “Gun control and Haldig”

  1. Gravatar of Steve Reilly Steve Reilly
    25. July 2014 at 13:30

    “Those who study original intent believe that the Second Amendment applies to individuals.” Not all of them. http://www.nytimes.com/2014/05/27/opinion/nocera-right-to-bear-arms-means-this.html

    By the way, your Joyce Malcolm link goes to the wrong page.

  2. Gravatar of Jim Ancona Jim Ancona
    25. July 2014 at 13:39

    Most originalists these days, including those on the Supreme Count, look to the original meaning of a text, not the original intent. Given that, I’m not sure the conundrum you identify actually exists.

  3. Gravatar of Patrick R. Sullivan Patrick R. Sullivan
    25. July 2014 at 13:40

    I assume we’re talking about Halbig? But the 2nd Amendment is part of the Constitution, while Halbig is about the IRS’s interpretation of a statute. So, I fail to see the point of this post.

    Anyway, I found the podcast of Jonathan Gruber’s speech to the San Francisco group here;

    http://web.archive.org/web/20120219115408/http://podcasts.jccsf.org/?

    His remarks about the state exchanges start at about the 33:00 mark. There is absolutely no ambiguity whatsoever AND they are in his speech, not in a response to an audience question.

    He clearly says that he hopes the voters in states that haven’t set up exchanges will vote the rascals out. I.e. the governors and legislators who passed up hundreds of millions, if not billions, in subsidies by not creating a state exchange.

  4. Gravatar of Patrick R. Sullivan Patrick R. Sullivan
    25. July 2014 at 13:45

    Btw, you have to scroll down to the fourth entry to get to Gruber’s 2012 speech.

  5. Gravatar of Bababooey Bababooey
    25. July 2014 at 13:47

    The first part of the 2nd is just a recital, an Ablative of Cause, a reason (not the only reason) for the clause that follows. The operative provision, the one that compels or prohibits an action, has a plain meaning: “the right of the people to keep and bear Arms shall not be infringed.”

    If you said, “scared by your ugly mug, I punched you” we would all agree that you punched me (operative), but we could all reasonably differ on why (you’re crazy, I had it coming, mistaken identity).

    What’s with this recent fixation on legal interpretation anyway? Tired of lay-people confidently lecturing you on Macro and decided to give it a whirl in legal? 🙂

    With respect & affection,
    Your future neighbor(ish)

  6. Gravatar of Bababooey Bababooey
    25. July 2014 at 13:58

    Just to anticipate Vivian’s point about Gruber (over at MR):

    Gruber is a strong counter-argument to those who say that the omission of credits as incentive is crazy, absurd, nutty-cuckoo. Those people have widely acclaimed Gruber as a go-to expert, hired by the Administration, amplified by media, etc. We have two speeches, so far, where he publicly, unambiguously explains that the ACA deliberately (not mistakenly) omits credits for Fed exchanges as part of an incentive structure.

    If he’s knowledgeable that we should listen to his ACA apologies and predictions, then shouldn’t we listen to him on this point? Or at listen to his speeches before the political winds changed?

  7. Gravatar of ssumner ssumner
    25. July 2014 at 14:12

    Steve, Thanks, I fixed it. Malcolm completely demolishes that argument.

    Jim, There is no way to figure out the original meaning without figuring out the original intent, or at least considering intent. Intent is evidence of meaning. For instance, people who study the original meaning of the Bible, try to figure out the original intent of the authors.

    Patrick, Again, there is nothing there about whether the subsidies would be available on the federal exchanges. Maybe he meant that if states don’t set up effective exchanges, people will go without subsidies until the feds set up replacement exchanges.

    But I’m not trying to defend the guy, he was very sloppy–just figure out what he actually believes.

    Bababooey, That’s also my view of the second amendment. But reasonable people can disagree. On the other hand the history is clear, the right to bear arms was an extremely important right in both the US and Britain.

    And you better not move, I need a real live person to bitch to about the “guvmint” when I become a grouchy old man. Wait, I already am.

  8. Gravatar of Dan W. Dan W.
    25. July 2014 at 14:13

    What incentive is there for states to establish an exchange?

  9. Gravatar of TD TD
    25. July 2014 at 14:15

    This post fails the political Turing test re: liberal justices. The judicial philosophy of the “living constitution” is not “focusing on the precise words” of the text. The overall point is correct (the court is ideological) but an ideological split on this case would not be an example of hypocrisy in the way you claim.

  10. Gravatar of ssumner ssumner
    25. July 2014 at 14:17

    Bababooey, On your second point, maybe I err in assuming other people are like me. If what you say is true he should be mocked by all his colleagues in academia every single time he walks down the hall. People should point fingers at him and laugh out loud. Now maybe they should. Maybe that’s true. But it’s a pretty serious charge. I’d never do anything that slimy, and I tend to assume others would not without strong evidence to the contrary. So I give him the benefit of the doubt.

  11. Gravatar of ssumner ssumner
    25. July 2014 at 14:20

    TD, You took it far too seriously. Of course I don’t believe liberals look at the exact words of the text. I was mocking that idea. My point is that votes reflect political preferences on the issue, which is something you seem to accept.

  12. Gravatar of Chris Brennan Chris Brennan
    25. July 2014 at 14:38

    I feel kind of sorry for you Scott (sincerely, not in a snarky way). It’s not fun to discover that the judges in black robes who we learn to respect in High School Civics are just lawyers.

    Every Supreme Court justice went to law school where they were taught to take a position and make the best possible arguments that will help them win the case.

    There’s nothing wrong with this, per se. Much of the American legal system is premised on the idea that justice can only come from two parties, appropriately represented, each bringing best opposing arguments to bear as they try to win. And it would be considered fundamentally unethical for a lawyer to let their desire for their legal analysis to reflect a particular “judicial philosophy” limit their arguments on behalf of their clients–as long as their arguments stay within the bounds of reasonableness (in the profession, this is known as “passing the smirk test”).

    The Supreme Court’s jurisdiction is constitutionally limited to cases and controversies because it is assumed that this adversarial system (where the parties are motivated by concrete desire to win the case) is essential to the Court coming up with the best possible results.

    PS The Anglo-American common law heritage has a huge impact here as well. Judges were often expected to make new law and then justify their decisions with arguments that made it sound like they were merely applying prior case precedent. (In a country with a code-based legal system and a separate career track for judges, things can be different.)

  13. Gravatar of SG SG
    25. July 2014 at 14:46

    Scott,

    I don’t blame you for misunderstanding the nature of judicial interpretation, but this post is just wrong.

    What Jim A. meant by “original public meaning” is that when you’re doing *pure* textual analysis of constitutional text, you do NOT look at subjective intent of Madison or the other drafters. You look at what the words would have meant to the median reader in 1787 (or, perhaps, 1865 when the bill of rights was incorporated against the states, but that’s a separate issue). So instead of considering sources as to Madison’s state of mind (journals, other drafts of the language, letters, public statements, etc) you look at sources that would tend to show public meaning, like dictionaries. And instead of looking at a modern dictionary to define the word “militia” you look at a 1787 dictionary. I agree with you that looking at subjective intent of an author is one way of analyzing a text (i.e. the Bible), but that’s NOT what originalist judges do.

    The issue in Halbig is whether the phrase “Exchange established by the State” is *ambiguous*. That’s a really hard question (which doesn’t automatically mean that the phrase is ambiguous, mind). The liberal argument is that references to federal exchanges in the rest of the statute are just as nonsensical (or more so) than a 100% superfluous mention of “established by the State.” But, the person asserting ambiguity has the burden of proving the ambiguity, and I see no reason to believe that Judge Griffith came to anything other than a good-faith conclusion based on straightforward application of the basic principles of textualism.

  14. Gravatar of Richard A. Richard A.
    25. July 2014 at 14:51

    “[Jonathan Gruber] clearly says that he hopes the voters in states that haven’t set up exchanges will vote the rascals out.”

    Or maybe low income families will move to those States where they can receive a subsidy, causing the red States to become redder and the blue States bluer.

  15. Gravatar of J Mann J Mann
    25. July 2014 at 14:54

    1) For what it’s worth, I think the Second Amendment is more ambiguous than the issue in Haldig.

    2) As a matter of policy, there’s a long tension between literalism and intent in both contract law and statutes. (You don’t have to come out the same way in both issues, because there are some different considerations, but there are a lot of similarities.

    a) On the one hand, it seems counterproducted to impose terms that we know for a fact no one intended them, like when both parties to a contract indicate that something is a typo.

    b) On the other hand, if we allow a lot of evidence about what people really meant when the language is clear, it leads to inefficiencies as we litigate every contract or law that their drafters regret. We’re especially likely to get some bad results when one of the drafters is dead or incompetent, or when, as with a law, there is no individual drafter, just a bunch of people who read it and voted on it.

    c) Some argue that a move towards formalism also incents contracting parties and legislatures to be clear in their language.

    The general compromise on this is that when language is clear, it’s almost impossible to get under it (you pretty much need to show that the parties had some common misunderstanding of the same word, like they both thought “inflammable” meant “can’t be set on fire.”)

    On the other hand, where it’s ambiguous, which usually means “capable of two REASONABLE interpretations,” then you can go into evidence about what people really meant. There are also all kinds of general rules of interpretation, like when there are two plausible interpretations, courts favor the one that doesn’t render any language null.

    The bottom line on this is that when you compare two allegedly ambiguous directions, like the Second Amendment and the ACA subsidy language, you have to ask how ambiguous are they.

    Now you might say that all language is equally ambiguous, or that we’re all so inherently biased (except maybe you and Robin Hanson) that we can’t be trusted to evaluate ambiguity, but if we’re that far down the principle of legal realism, then we don’t even need to have the discussion, because we’re all just advocating for our preferred outcome by any justification we think will work.

    I personally think:

    – If the ACA subsidy language is ambiguous, I don’t get how. (It seems to involve the word “shall”, but the rest is so clear that I don’t see how it’s reasonably susceptible to the Obama intepretation, but then again, I think it’s a messy law that was poorly designed in a rush by whichever partisans and lobbiests managed to elbow their way to the table, so I guess I’m either biased, correct, or maybe both).

    – As a general matter, I’ve always leaned towards document language whenever it was reasonably clear. Some of this is because I don’t want to take a bunch of congresspeople’s depositions over what the meaning if “is” is every time a clear law comes up, and some of it is because I think people have a strong public interest in knowing what the law is.

    – Here, as far as I know, nobody ever thought about this issue. They passed a thousand page law over a few days, without knowing what was in it. There’s no telling what any individual legislator was thinking, except “I want Obamacare!”

    – It would seem perverse to me if this gave the people who voted for the law, or the regulators, MORE authority to change the law to deal with new circumstances by declaring “what we MEANT was . . . ” But I appreciate there are people on the other side.

  16. Gravatar of ssumner ssumner
    25. July 2014 at 14:56

    Chris, I feel sorry for people who have a juvenile sense of humor. And people who don’t know the difference between lawyers and judges. And I mean that sincerely.

    SG, You said;

    “What Jim A. meant by “original public meaning” is that when you’re doing *pure* textual analysis of constitutional text, you do NOT look at subjective intent of Madison or the other drafters. You look at what the words would have meant to the median reader in 1787 (or, perhaps, 1865 when the bill of rights was incorporated against the states, but that’s a separate issue). So instead of considering sources as to Madison’s state of mind (journals, other drafts of the language, letters, public statements, etc) you look at sources that would tend to show public meaning, like dictionaries.”

    I don’t know why you think I don’t understand all that. My point is that dictionaries get meaning by looking at intent. For instance, if a third party at the time was also arguing for the wording favored by Madison, that third party’s statement would speak to both meaning and intent. You cannot separate the two.

  17. Gravatar of J Mann J Mann
    25. July 2014 at 15:00

    IMHO, judicial philosophy is like objective journalism or academic integrity. (Maybe less like the third thing, because there are enforcement mechanisms beyond shaming).

    It’s certainly true that people’s decisions will be influenced by their preferred outcome, but the act of publicly declaring a philosphy, or attempting journalistic objectivity, etc. constrains behavior in ways that I think are good.

    The most reductive analysis would be that when John Roberts voted to uphold Congress’s authority to enact ACA, he was just saying that he liked ACA. But he’s also a guy who thinks that the law is important – that hundreds of courts are going to read that opinion not just for whether or not we have ACA, but also for how they approach new and unforseen problems that will never get to Roberts’ desk. Under those circumstances, he might conclude that a particular RULE of statutory construction is more important than the outcome in that particular case.

    (I guess you could argue that it doesn’t matter to the lower courts what rules the Supreme Court lays out because those judges are just going to vote their preferences regardless of Supreme Court guidance, but I disagree, and I think Roberts and his collegues do too.)

  18. Gravatar of ssumner ssumner
    25. July 2014 at 15:00

    J mann, Lots of good points, the one I’m most sympathetic to is:

    “Here, as far as I know, nobody ever thought about this issue. They passed a thousand page law over a few days, without knowing what was in it. There’s no telling what any individual legislator was thinking, except “I want Obamacare!””

    I oppose big complex bills, so there’s some satisfaction seeing them getting hoisted on their own petard.

  19. Gravatar of iag iag
    25. July 2014 at 15:20

    As many say, Constitution not the same as legislation interpretation. Anyway, if anyone thought this is what the legislation meant you’d expect to see CBO analysis or discussion as to no Federal subsidies if states used a Federal exchange or some discussion of the scenario during the countless hours of coverage and discussion of he bill as it clearly inhibits effectiveness. The wording is vague and open to interpretation, but this happens all the time and the intent is clear. Legally, this should defer to agency interpretation. That is what agencies do all the time in implementing actual legislation. Now, I’m a supporter of ACA and it’s goals; so of course I’d say that I guess.

  20. Gravatar of Bababooey Bababooey
    25. July 2014 at 15:21

    I just ran a search of “intent” in the Heller opinion. The conservatives never use that word (except in quotes), while Stevens uses it repeatedly and Breyer just a bit. Stevens:

    Different language surely would have been used to protect nonmilitary use and possession of weapons from regulation if such an intent had played any role in the drafting of the Amendment.

    Conservatives don’t care about intent in Heller, they use “Textualism”. They respectfully consider whether contemporaneous sources thought the 2nd Amend means what the Administrtaion says it means (i.e., The Fed Govt may not disarm the National Guard). Having reviewed those sources, they decide that the Administration’s interpretation lacks any evidence in the text or in the contemporaneous discussions.

    What’s the difference? There are important differences, but it’s time for a beer.

    PS Stevens writes: “…post enactment legislative history, which is generally viewed as the least reliable source of authority for ascertaining the intent of any provision’s drafters.”

  21. Gravatar of Patrick R. Sullivan Patrick R. Sullivan
    25. July 2014 at 15:27

    Hard to call anything in Gruber’s remarks ‘ambiguous’;

    ‘ The third risk, and the one folks aren’t talking about, which may be most important of all, is the role of the states. Through a political compromise, it was decided that states should play a critical role in running these health insurance exchanges. And health insurance exchanges are the centerpiece of this reform, because they are the place that individuals can go to shop for their new, securely priced health insurance. But if they are not set up in a way which is transparent, and which is convenient for shoppers, and which allow people to take their tax credits and use them effectively by health insurance, it will undercut the whole purpose of the bill.

    ‘ Now a number of states have expressed no interest in doing so. A number of states””like California, has been a real leader””one of, I think it was the first state to pass an exchange bill. It’s been a leader in setting up its exchange. It’s a great example. But California is rare. Only about 10 states have really moved forward aggressively on setting up their exchanges. A number of states have even turned down millions of dollars in federal government grants as a statement of some sort””they don’t support health care reform.

    ‘ Now, I guess I’m enough of a believer in democracy to think that when the voters in states see that by not setting up an exchange the politicians of a state are costing state residents hundreds and millions and billions of dollars, that they’ll eventually throw the guys out. But I don’t know that for sure. And that is really the ultimate threat, is, will people understand that, gee, if your governor doesn’t set up an exchange, you’re losing hundreds of millions of dollars of tax credits to be delivered to your citizens.’

    What other interpretation can be given for, ‘A number of states have even turned down millions of dollars in federal government grants’?

  22. Gravatar of Jonathan Cast Jonathan Cast
    25. July 2014 at 15:50

    What exactly is the argument that original Congressional intent *was* to allow people to receive federal subsidies through the federal exchanges? Looking at what they say *now*, now that they know how badly the original plan failed, is to completely abandon the rule of law, and allow the authors of a law to amend it any way they like for as long as they’re still alive.

  23. Gravatar of JNCU JNCU
    25. July 2014 at 16:04

    “Fortunately the members of the Supreme Court do not let personal political preferences interfere with their decisions.”

    Yes lib do. That is their philosophy. Even more accurate, personal political preferences DETERMINE their decisions.

  24. Gravatar of Michael Byrnes Michael Byrnes
    25. July 2014 at 16:46

    If Gruber said it, it must be the law of the land!

  25. Gravatar of Michael Byrnes Michael Byrnes
    25. July 2014 at 16:46

    If Gruber said it, it must be the law of the land!

  26. Gravatar of Ben J Ben J
    25. July 2014 at 18:55

    Is the position of the conservatives in the comments here really that Gruber’s comments demonstrate congressional intent?

  27. Gravatar of Jerry Brown Jerry Brown
    25. July 2014 at 21:46

    This is a very interesting intellectual discussion of the legal system and how laws are interpreted and applied. I don’t have any expertise in that area, but want to comment because I am one of the beneficiaries of Obama-care. I actually have reasonable health insurance for the first time in 20 years. This was impossibly unaffordable due to a “pre-existing condition” that I may or may not have.
    I think there are a lot of other people who were in a similar position as me. I think that it will be very difficult to take that away. I think that the court is going to realize that.
    Some things are not the letter of the law and some things are not pure economics.
    Does anyone here want to stand up proud and say You- Jerry Brown, you can’t have health insurance? Say it and be honest about what you are saying.

  28. Gravatar of Ben J Ben J
    26. July 2014 at 00:16

    I agree with you, Scott. To me the biggest failure of the attempt to argue that subsidies are invalid on federally set-up exchanges via some textualist interpretation comes from examining how similar parts of the act demonstrate intent.

    The ACA’s provisions for Medicaid have an *explicit provision* that says that if the States do not participate in the program they lose funding. This is what came up in NFIB vs Sebelius (2012).

    Whether you like the ACA or loath it, It seems deliberately obtuse for anyone to claim that it was intended that the exchange subsidies would be forfeited if states didn’t set up their own exchange, given that there is no such explicit provision in relation to the exchanges.

  29. Gravatar of ssumner ssumner
    26. July 2014 at 06:55

    Bababooey, Contemporaneous sources clearly believed the subsidies applied to federal exchanges.

  30. Gravatar of Patrick R. Sullivan Patrick R. Sullivan
    26. July 2014 at 07:18

    I’m indebted to my old friend Brad DeLong finding out about this horrible, horrible error on the part of Michael Cannon;

    http://www.forbes.com/sites/michaelcannon/2014/07/16/erratum-in-the-adler-cannon-amicus-briefs-filed-in-halbig-king/

    ———-quote——–
    I discovered an error that I committed in, but that does not weaken or alter the conclusions of, the amicus briefs Jonathan Adler and I filed with the courts of appeals in both Halbig v. Burwell and King v. Burwell.

    On pages 11-12 of our Halbig brief and pages 14-16 of our King brief, we claimed the bipartisan Small Business Health Options Program Act, introduced in 2008 (S.2795) and again in 2009 (S.979) by Sen. Richard Durbin (D-IL), conditioned tax credits to small businesses on states establishing “SHOP” Exchanges. Those bills in fact explicitly authorize tax credits to participating employers whether a state or the federal government established the Exchange. The error was mine. I apologize to the courts and my coauthor.
    ———–endquote———-

    Serious business, indeed! Now, I await Brad’s blog post admitting that he and Jonathan Gruber made a much bigger blunder in signing onto an amicus brief in Halbig, that claims the exact opposite of what Gruber admitted twice in January 2012.

  31. Gravatar of TallDave TallDave
    26. July 2014 at 09:13

    Are we a nation ruled by men, or a nation under the rule of law?

    If you believe the former is preferable, I don’t begrudge you your views, but I would strongly prefer you and those who think like you live in a nation other than the one I live in, even if that requires secession, and the best of luck to all of you.

  32. Gravatar of TallDave TallDave
    26. July 2014 at 09:15

    And all the conservative justices who often strike down gun control laws will look to Congressional intent

    The Congressional intent was best summed by the Speaker of the House, who said we had to pass the bill to find out what was in it.

    Well, now we know.

  33. Gravatar of Daniel Daniel
    26. July 2014 at 09:20

    Seeing as how laws are made by men, and hypocrisy is deeply innate – and in practice it results in vague rules that leave much to the discretion of those with the power to decide – I’d say the choice is not between being “ruled by men” or “ruled by laws”, but between men you’d rather be ruled by and men you’d rather not be ruled by.

    Deal with it.

  34. Gravatar of TallDave TallDave
    26. July 2014 at 09:43

    I agree Daniel, I’d prefer to be ruled by those who believe in the rule of law. Everyone who doesn’t, I strongly encourage to form a separate country, and I hope that works out for you.

  35. Gravatar of TallDave TallDave
    26. July 2014 at 11:09

    all the liberal justices who tend to uphold gun control laws will look at the precise wording of the ACA, and deny subsidies to people who purchased insurance through federal exchanges

    I think you’re a bit off here, Scott. Most gun control proponents favor neither literalism nor original intent, but the “living document” doctrine, perhaps best summed up in Ezra Klein’s characterization of the Constitution as “over 100 years old.”

  36. Gravatar of Mads Lindstrøm Mads Lindstrøm
    26. July 2014 at 11:11

    Professor Sumner writes:

    “I don’t know why you think I don’t understand all that. My point is that dictionaries get meaning by looking at intent. For instance, if a third party at the time was also arguing for the wording favored by Madison, that third party’s statement would speak to both meaning and intent. You cannot separate the two.”

    Who’s intent? Who judge the meaning?

    IANAL, but as I understand the textual view, “the intent of the law” is referring to the intent of the members of Congress voting for the law. “The meaning of the law”, however, refers to what a reasonable first-time reader of the law, at the time when the law was passed, would have interpreted the law to mean.

    An example may clarify. Image congress in 1842 passes a law to tax all wheat imported into the USA at 81 dollars per bushel. All congressmen wanted to tax at 18 dollars per bushel, but somebody switched the digits and no congressman caught the error. Congress intent here is clearly to tax at 18 dollars. But the meaning of the text is clearly to tax at 81 dollars. So meaning and intent differs.

    Some may find it silly to levy the 81 dollars tax, when congress clearly meant for a 18 dollar tax in my example. But it is not as clear:

    * How is an ordinary American to abide by the law, when it can mean something quite different from it says it means.

    * Where do you draw the line. What if 1/4 of congress meant 81, 1/4 meant 18, 1/4 could not remember what they meant, and 1/4 meant nothing when passing the law. How do you judge?

    There can be made other objections to an intent-view of the law.

  37. Gravatar of Gordon Gordon
    26. July 2014 at 16:14

    Scott – if I order a pizza “with marshmallows” when I intended to say “mushrooms”, my intent is irrelevant to the contract. Meaning and intent are quite separable, because what I intended to say might not be what I said. I have no one to blame but myself if I mistakenly say “marshmallow” and I get marshmallows, however much I would like it if I were given a pizza with mushrooms regardless of what I asked for.

  38. Gravatar of Greg Greg
    26. July 2014 at 20:52

    Others have already talked about the distinction between original intent and original meaning. I’ll just contribute this quotation from Scalia:
    “The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”

  39. Gravatar of ssumner ssumner
    27. July 2014 at 12:30

    Talldave, I believe we should be ruled by laws, not men, especially not judges.

    And I agree about liberals and the living document. I was being sarcastic.

    Everyone, I agree that intent and meaning are not identical. But as a practical matter the search for meaning is very close to the search for intent, except in obvious cases like typos.

  40. Gravatar of Daniel Daniel
    27. July 2014 at 14:14

    TallDave,

    Off-topic, but the next time you decide to be an idiot and accuse anyone who thinks US foreign policy is retarded to be a communist sympathizer, you might want to learn who’s been propping up communism all those decades (the Soviet system was so inefficient, they’d have starved if they’d been left to fend for themselves)

    http://www.reformed-theology.org/html/books/best_enemy/index.html

  41. Gravatar of TallDave TallDave
    28. July 2014 at 07:01

    Daniel,

    Sorry, I’m not doing any more mental health outreach. Please speak to a qualified professional.

  42. Gravatar of Major.Freedom Major.Freedom
    29. July 2014 at 12:52

    TallDave:

    I can reassure you that the patient seems to be staying indoors where he is less of a threat to the innocent. He is however still dealing with trauma and is still verbally hostile. I think another 6 months of supervision and playing make-believe will help.

  43. Gravatar of Daniel Daniel
    29. July 2014 at 14:48

    TallDave,

    That’s ok, I’m not expecting you to reconsider your brainwashing. It’s easy to divide people into “freedom lovers” and “commies”. The complicated reality that the “freedom lovers” were actively supporting the “commies” is too much for a simple brain to grasp.

  44. Gravatar of Major.Freedom Major.Freedom
    29. July 2014 at 16:08

    Daniel:

    You’re brainwashed. You’ve been brainwashed into believing that freedom is slavery, war is peace, and ignorancenis strength.

    The prospect of fending for yourself in a world where individual property owners decide whether to trade or give away their wealth, which is actual freedom, terrifies the living daylights out of you. It scares you so much that you have convinced yourself that such a world would be absolute tyranny. Freedom to you is reducing innocent people’s freedom for your own parasitic benefit.

    Your simpleton mentality divides the world up into statists and anti-human monsters.

  45. Gravatar of J Mann J Mann
    30. July 2014 at 12:05

    Daniel’s viewpoint is fine – it’s extreme legal realism, and I don’t agree with it, but it’s not unknown.

    Daniel, I think the flaw in your argument is that if I don’t have the ability to select people who are ethically committed to follow the law instead of their biases, I don’t see why you have the ability to select people who have the ability to be “good” instead of following their selfish preferences.

    I find someone who promises to apply the law even when it conflicts with his self-interest, you don’t believe her. Fine, but when you find someone who promises to look out for the little guy instead of his self interest, why should we believe him?

    Isn’t the end result of your analysis that I have to have myself in charge of all decisions, because anyone else will just do what they want and invent a justification?

  46. Gravatar of Daniel Daniel
    30. July 2014 at 14:10

    I don’t see why you have the ability to select people who have the ability to be “good” instead of following their selfish preferences.</i

    Never said I did.

    when you find someone who promises to look out for the little guy instead of his self interest, why should we believe him?

    We shouldn’t.

    Isn’t the end result of your analysis that I have to have myself in charge of all decisions, because anyone else will just do what they want and invent a justification?

    100% correct.

    Much as this may surprise you, I am fully aware of the implications of what I’m saying. I know people don’t like cynical truths, but that doesn’t make them false.

    Also, you may want to consider the fact that the WEIRD (Western Educated Industrialized Rich Democratic) people of North-Western European descent are the end result of a centuries long eugenics project.

    The institutions that work for them may not work as well (if at all) for other people.

    When you people say “ruled by laws” I translate this into “ruled by men who have internalized guilt”.

  47. Gravatar of Philippe Philippe
    30. July 2014 at 15:01

    “a world where individual property owners decide whether to trade or give away their wealth”

    … which is what we have.

  48. Gravatar of Major.Freedom Major.Freedom
    30. July 2014 at 21:45

    Philippe:

    “Which is what we have.”

    No, we do not. Property owners are threatened with kidnapping and thrown into a cage by SWAT teams if they choose not to deal with government, and choose instead to use their money (which is property) to pay others for all the “services” the government forces people to pay no matter what.

    What you call choice is like calling “your money or your life” a choice. I call it coercion.

  49. Gravatar of J Mann J Mann
    31. July 2014 at 06:10

    You’re right, Daniel, I recalled your last clause wrong.

    “I’d say the choice is not between being “ruled by men” or “ruled by laws”, but between men you’d rather be ruled by and men you’d rather not be ruled by.”

    I thought you were arguing that we should select “good people”, but you’re right that you were even more reductive than that.

    In that case, FWIW, I disagree with one of your premises somewhat – I think that we can usefully sort out people who on average have values that make them more likely to apply laws in a more objective predictable fashion, and that we can create incentives that make them more likely still do so, and that these are social goods. You can probably convincingly argue that we as a society are not LIKELY to do that, but I can still argue for it.

  50. Gravatar of Daniel Daniel
    31. July 2014 at 06:52

    I think that we can usefully sort out people who on average have values that make them more likely to apply laws in a more objective predictable fashion

    We probably can, however our current system (aka “democracy”) tends to promote psychopaths. I mean literal psychopaths, I’m not using the term as an insult.

    we can create incentives that make them more likely still do so

    Are you aware of this ?

    http://hanson.gmu.edu/futarchy.html

    You might find it of interest.

    You can probably convincingly argue that we as a society are not LIKELY to do that

    Given the right incentives, anything is possible.

    The Medieval Church set out to destroy European tribalism – and the outcome was the WEIRD people.

    If it happened once, it can happen again.

  51. Gravatar of Philippe Philippe
    31. July 2014 at 08:15

    “No, we do not. Property owners are threatened with kidnapping and thrown into a cage”

    Tax revenue is the property of the state, or of the population as a whole, not the property of the individual tax payer. This is a legal fact. Anyone who refuses to pay money they owe usually has to deal with law enforcement. Taxes are no different in that respect.

  52. Gravatar of Major.Freedom Major.Freedom
    31. July 2014 at 08:32

    Philippe:

    “Tax revenue is the property of the state, or of the population as a whole, not the property of the individual tax payer. This is a legal fact. Anyone who refuses to pay money they owe usually has to deal with law enforcement. Taxes are no different in that respect.”

    Nice try, but this argument also fails. If dollars are the property of the state, then that doesn’t mean the state is justified in demanding that I pay it dollars that I don’t want but only acquire because I am forced to pay taxes in dollars or else kidnapping and the cage will ensue.

    Your argument is circular.

    It would be like me demanding that you pay me in Major-Freedom dollars at gunpoint, even if you would otherwise not seek to acquire Major-Freedom dollars but only do so because of me threatening you. And then when you protest, I say “Those Major-Freedom dollars are my property, and so you must give them back to me.”

    Ever thought of the option of you or me NOT being threatened with violence into paying the state in its own toilet paper? Merely saying “B-b-b-but it is the law!” is just begging for a Godwin.

  53. Gravatar of Philippe Philippe
    31. July 2014 at 08:43

    “If dollars are the property of the state”

    Huh? I didn’t say that.

  54. Gravatar of Major.Freedom Major.Freedom
    31. July 2014 at 08:58

    Philippe:

    Tax dollars is actually an action. It is the taking of dollars.

    Saying tax dollars is the property of the state means that there is something tangible the state allegedly owns. If the state owns tax dollar, then that is saying it owns dollars. I didn’t say ALL dollars.

    But this is all besides the point. Ok, I will slightly amend my previous scenario. I don’t own all Major-Freedom dollars. I just own sone of them. The ones I own are a portion of the ones you would possess if I threatened you with a cage if you don’t pay me however many I and my friends think you should pay me based on the non-Major-Freedom dollar earnings you make.

    In return for paying me, I will provide “protection” services to you. Haha no, it doesn’t matter if you believe another protector can do a better job than me. If you want someone else to protect you, then move to Cuba.

    You only make federal reserve system money? Ok, if you earn 50 ounces of gold a year, or whatever else you earn I’ll figure it out later, then you must pay me 10,000 MF dollars, or else I will kidnap you in chains and throw you into a cage.

    Since that is “MF law”, then “deal with it” or get the hell off your land while I repossess your home. I give you the total freedom to leave and move to Cuba if you don’t like it.

    What’s that? My law is not valid? You’re just a selfish law breaker aren’t you? You don’t care at all about the blind children I am helping and need you to finance to keep it going. You are just claiming that statism is better because what happens in statism is by definition better than what happens if I threatened you into paying me in MF dollars to “protect” you.

    I don’t agree with you. What you say has no bearing on what happens to you. Your own opinions about your life are just that, your opinions. I am better at knowing what you want, than you know what you want.

    Etc etc etc.

    The above is me behaving as a state. Looks bad when we stop using Orwellian doublespeak and tell it like it is!

  55. Gravatar of Major.Freedom Major.Freedom
    31. July 2014 at 09:06

    Philippe:

    Absolutely nothing would change the fact that my above scenario is aggression towards you, if I somehoe managed to convince at least half the population that my actions towards you are moral and just. Nothing. Nada. Zilch.

    Theft and coercion from someone don’t suddenly turn into something else if a particular number of other random people started supporting their actions.

    This is why democracy is so evil. It sanctions evil as long as 51% want to engage in evil against the remaining 49%.

  56. Gravatar of Philippe Philippe
    31. July 2014 at 10:00

    you’re like a ranting angry, confused child. It’s pathetic.

    I said tax revenue is the property of the state, not of the individual tax payer. This is a legal fact.

    Similarly, rent is the property of the landlord, not of the tenant. This is also a legal fact.

    In either case, if you legally owe money and you refuse to pay, law enforcement will get involved. You may be required to go to court. You might get arrested, etc.

    “Aggression, for the purposes of NAP, is defined as the initiation or threatening of violence against a person or legitimately owned property of another.”

    http://en.wikipedia.org/wiki/Non-aggression_principle

    According to this definition of aggression, if tax revenue is the legitimate property of the state, then demanding payment of it, or enforcing payment, is not aggression.

  57. Gravatar of Major.Freedom Major.Freedom
    31. July 2014 at 13:21

    Philippe:

    “you’re like a ranting angry, confused child. It’s pathetic.”

    Haha! Yes! That’s the spirited mentality of a socialist! Government is mommy and daddy, and grown adult “citizens” are children. Wanting to have nothing to do with psychopathic power hungry thugs is like a spoiled little child who disrespects his parents. Way to go!

    “I said tax revenue is the property of the state, not of the individual tax payer. This is a legal fact.”

    I said you owe me 10k MF dollars or else you’ll be kidnapped and thrown into a cage. That is a legal fact.

    What’s that? You don’t recognize that legality? Spoiled ranting child!

    “Similarly, rent is the property of the landlord, not of the tenant. This is also a legal fact.”

    That isn’t similar at all. A legitimate landlord homesteaded or traded for the land upon which he can ask for payment and have final authority over its disposition.

    A state just imposes its rule over other people’s lands.

    Apples and oranges. I could just as easily declare that you paying me 10k MF dollars for living on “my” land is “legal fact.”

    Disrespect that legality? Spoiled child!

    “In either case, if you legally owe money and you refuse to pay, law enforcement will get involved. You may be required to go to court. You might get arrested, etc.”

    I like playing show and tell too. Now can you delve a little deeper into this “legality” word you keep throwing around as if it is a magic word that presto chango turns theft and aggression into something “like” a homesteader building an apartment building on previously unowned land, and charging a fee to anyone who wants to use it, but does not impose fees on other people for using their own homesteades land?

    “Aggression, for the purposes of NAP, is defined as the initiation or threatening of violence against a person or legitimately owned property of another.”

    Right. Theft and conquest is not a legitimate means of acquiring or owning property.

    “According to this definition of aggression, if tax revenue is the legitimate property of the state…”

    It isn’t.

    Man, like is all you have is “it’s the law!” Like I said before, do we need to Godwin this? Why do you keep giving the Nazi defense? They said “it is the law!” too, and yet THERE you think like me and say it wasn’t legitimate law.

    What you think about unjust laws is what I think about the laws you claim are just in a mob rule society like a democracy.

  58. Gravatar of Philippe Philippe
    31. July 2014 at 14:00

    “That’s the spirited mentality of a socialist! Government is mommy and daddy, and grown adult “citizens” are children.”

    No, you delusional idiot, that’s not what I think.

    I think that YOU in particular are a pathetic fool, because of the specfic stupid things YOU say and YOUR specific behaviour.

    Do you understand, idiot?

  59. Gravatar of Philippe Philippe
    31. July 2014 at 16:06

    “I said you owe me 10k MF dollars or else you’ll be kidnapped and thrown into a cage. That is a legal fact.”

    No that is not a fact. Why are you lying?

    “A legitimate landlord homesteaded or traded for the land upon which he can ask for payment and have final authority over its disposition.”

    It is patently false to assert that the current distribution of property ownership is simply the result of individual acts of “homesteading” unoccupied land and subsequent voluntary exchange. That is just an ahistorical nonsense story.

    “Man, like is all you have is “it’s the law!”

    No, you’re just too stupid and deranged to understand anything at all which doesn’t conform to your idiotic, infantile belief system.

  60. Gravatar of Major.Freedom Major.Freedom
    31. July 2014 at 16:21

    Philippe:

    “No, you delusional idiot, that’s not what I think.”

    You mean that’s what you think, you just don’t want people to think that’s what you think, hence your outburst.

    “I think that YOU in particular are a pathetic fool, because of the specfic stupid things YOU say and YOUR specific behaviour.”

    K.

    “Do you understand, idiot?”

    Depends. By idiot do you mean I don’t understand simpletons?

    Careful..

    “I said you owe me 10k MF dollars or else you’ll be kidnapped and thrown into a cage. That is a legal fact.”

    “No that is not a fact. Why are you lying?”

    I am not lying. I declare it a legal fact.

    Why is your declaration valid whereas mine is not?

    Why do you deceive yourself?

    “A legitimate landlord homesteaded or traded for the land upon which he can ask for payment and have final authority over its disposition.”

    “It is patently false to assert that the current distribution of property ownership is simply the result of individual acts of “homesteading” unoccupied land and subsequent voluntary exchange. That is just an ahistorical nonsense story.”

    Cool story. Do you know of anyone who has asserted this? Let me know.

    Also, let me know since when did past injustices warrant future injustices. Let me know where in the world did it become justified for Obama to steal property from others because people 290 years ago stole the land underneath their feet.

    “Man, like is all you have is “it’s the law!”

    “No, you’re just too stupid and deranged to understand anything at all which doesn’t conform to your idiotic, infantile belief system.”

    K.

    Hahaha.

  61. Gravatar of Philippe Philippe
    31. July 2014 at 16:52

    “You mean that’s what you think, you just don’t want people to think that’s what you think”

    No, that’s simply not what I think. You liar.

    “I declare it a legal fact.”

    But it isn’t a legal fact, so you are lying. Declaring that the moon is made out of green cheese doesn’t make it so either.

    “Do you know of anyone who has asserted this?”

    Yes. You.

    “since when did past injustices warrant future injustices'”

    They don’t.

    “where in the world did it become justified for Obama to steal property from others”

    I didn’t say It is justified for Obama to steal property from others, you idiot.

  62. Gravatar of Major_Freedom Major_Freedom
    31. July 2014 at 17:10

    Philippe:

    “No, that’s simply not what I think.”

    It simply is what you think. You are a liar.

    “But it isn’t a legal fact.”

    But it is, because I have declared it to be legal.

    Why is your declaration valid, but mine is not?

    I am outnumbered?

    “Yes. You.”

    Where?

    “They don’t.”

    Then why do you keep bringing up past injustices to justify your advocacy of present injustices?

    “I didn’t say it is justified.”

    You don’t have to literally say something before your words show you to be saying that same something.

    You do believe it is justified for Obama’s goons to steal. You have just brainwashed yourself into believing it is not theft.

  63. Gravatar of Philippe Philippe
    31. July 2014 at 18:23

    “Why is your declaration valid, but mine is not?”

    Your ‘declaration’ is factually untrue.

    Your actual question is: ‘why can’t I decide what the law is?’

    This is actually all that your ideology boils down to: the assertion that you and only you should be able to decide what the law is.

    “why do you keep bringing up past injustices”

    why do you keep making up stories which have nothing to do with reality?

    “You do believe it is justified for Obama’s goons to steal.”

    No, I don’t.

    The problem is that you are apparently incapable of understanding any point of view which is not as stupid as your own.

  64. Gravatar of Major_Freedom Major_Freedom
    31. July 2014 at 18:53

    Philippe:

    “Your ‘declaration’ is factually untrue.”

    It’s factually true. I have declared it legal. If my declaration is not enough, why isn’t it enough?

    Why is your declaration factually true whereas mine is not?

    “Your actual question is: ‘why can’t I decide what the law is?'”

    No, I have already decided what my laws are. Whether or not you follow them is up to you. If you don’t follow them, then you should move to Cuba.

    “This is actually all that your ideology boils down to: the assertion that you and only you should be able to decide what the law is.”

    As opposed to your ideology that boils down to: the assertion that NOT me and only me should decide what laws apply to me and only me? Namely, your assertion that your laws should apply to me?

    “why do you keep making up stories which have nothing to do with reality?”

    Why do you keep making up stories which have nothing to do with reality?

    “No, I don’t.”

    Yes, you do. You support theft of money and you call it taxation.

    “The problem is that you are apparently incapable of understanding any point of view which is not as stupid as your own.”

    The problem is that you are apparently incapable of understanding any point of view which is not as stupid as your own.

  65. Gravatar of Major_Freedom Major_Freedom
    31. July 2014 at 18:53

    Philippe:

    “Your ‘declaration’ is factually untrue.”

    It’s factually true. I have declared it legal. If my declaration is not enough, why isn’t it enough?

    Why is your declaration factually true whereas mine is not?

    “Your actual question is: ‘why can’t I decide what the law is?'”

    No, I have already decided what my laws are. Whether or not you follow them is up to you. If you don’t follow them, then you should move to Cuba.

    “This is actually all that your ideology boils down to: the assertion that you and only you should be able to decide what the law is.”

    As opposed to your ideology that boils down to: the assertion that NOT me and only me should decide what laws apply to me and only me? Namely, your assertion that your laws should apply to me?

    “why do you keep making up stories which have nothing to do with reality?”

    Why do you keep making up stories which have nothing to do with reality?

    “No, I don’t.”

    Yes, you do. You support theft of money and you call it taxation.

    “The problem is that you are apparently incapable of understanding any point of view which is not as stupid as your own.”

    The problem is that you are apparently incapable of understanding any point of view which is not as stupid as your own.

  66. Gravatar of Philippe Philippe
    1. August 2014 at 06:40

    “It’s factually true”

    If I owe you money then send me a bill. Of course I don’t owe you money, so you won’t. So stop lying about it.

    “I have already decided what my laws are”

    Great. No one cares.

    Your ideal world is one in which you are the dictator who decides what the law is. Because no one wants to live in your fantasy world, you think that makes them immoral. That’s all there is to it.

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