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3. The State

The State as Aggressor

The central thrust of libertarian thought, then, is to oppose any and all aggression against the property rights of individuals in their own persons and in the material objects they have voluntarily acquired. While individual and gangs of criminals are of course opposed, there is nothing unique here to the libertarian creed, since almost all persons and schools of thought oppose the exercise of random violence against persons and property.

There is, however, a difference of emphasis on the part of libertarians even in this universally accepted area of defending people against crime. In the libertarian society there would be no “district attorney” who prosecutes criminals in the name of a nonexistent “society,” even against the wishes of the victim of crime. The victim would himself decide whether to press charges. Furthermore, as another side to the same coin, in a libertarian world the victim would be able to press suit against a wrongdoer without having to convince the same district attorney that he should proceed. Moreover, in the system of criminal punishment in the libertarian world, the emphasis would never be, as it is now, on “society’s” jailing the criminal; the emphasis would necessarily be on compelling the criminal to make restitution to the victim of his crime. The present system, in which the victim is not recompensed but instead has to pay taxes to support the incarceration of his own attacker—would be evident nonsense in a world that focuses on the defense of property rights and therefore on the victim of crime.

Furthermore, while most libertarians are not pacifists, they would not join the present system in interfering with people’s right to be pacifists. Thus, suppose that Jones, a pacifist, is aggressed against by Smith, a criminal. If Jones, as the result of his beliefs, is against defending himself by the use of violence and is therefore opposed to any prosecution of crime, then Jones will simply fail to prosecute, and that will be the end of it. There will be no governmental machinery that pursues and tries criminals even against the wishes of the victim.

But the critical difference between libertarians and other people is not in the area of private crime; the critical difference is their view of the role of the State—the government. For libertarians regard the State as the supreme, the eternal, the best organized aggressor against the persons and property of the mass of the public. All States everywhere, whether democratic, dictatorial, or monarchical, whether red, white, blue, or brown.

The State! Always and ever the government and its rulers and operators have been considered above the general moral law. The “Pentagon Papers” are only one recent instance among innumerable instances in history of men, most of whom are perfectly honorable in their private lives, who lie in their teeth before the public. Why? For “reasons of State.” Service to the State is supposed to excuse all actions that would be considered immoral or criminal if committed by “private” citizens. The distinctive feature of libertarians is that they coolly and uncompromisingly apply the general moral law to people acting in their roles as members of the State apparatus. Libertarians make no exceptions. For centuries, the State (or more strictly, individuals acting in their roles as “members of the government”) has cloaked its criminal activity in high-sounding rhetoric. For centuries the State has committed mass murder and called it “war”; then ennobled the mass slaughter that “war” involves. For centuries the State has enslaved people into its armed battalions and called it “conscription” in the “national service.” For centuries the State has robbed people at bayonet point and called it “taxation.” In fact, if you wish to know how libertarians regard the State and any of its acts, simply think of the State as a criminal band, and all of the libertarian attitudes will logically fall into place.

Let us consider, for example, what it is that sharply distinguishes government from all other organizations in society. Many political scientists and sociologists have blurred this vital distinction, and refer to all organizations and groups as hierarchical, structured, “governmental,” etc. Left-wing anarchists, for example, will oppose equally government and private organizations such as corporations on the ground that each is equally “elitist” and “coercive.” But the “rightist” libertarian is not opposed to inequality, and his concept of “coercion” applies only to the use of violence. The libertarian sees a crucial distinction between government, whether central, state, or local, and all other institutions in society. Or rather, two crucial distinctions. First, every other person or group receives its income by voluntary payment: either by voluntary contribution or gift (such as the local community chest or bridge club), or by voluntary purchase of its goods or services on the market (i.e., grocery store owner, baseball player, steel manufacturer, etc.). Only the government obtains its income by coercion and violence—i.e., by the direct threat of confiscation or imprisonment if payment is not forthcoming. This coerced levy is “taxation.” A second distinction is that, apart from criminal outlaws, only the government can use its funds to commit violence against its own or any other subjects; only the government can prohibit pornography, compel a religious observance, or put people in jail for selling goods at a higher price than the government deems fit. Both distinctions, of course, can be summed up as: only the government, in society, is empowered to aggress against the property rights of its subjects, whether to extract revenue, to impose its moral code, or to kill those with whom it disagrees. Furthermore, any and all governments, even the least despotic, have always obtained the bulk of their income from the coercive taxing power. And historically, by far the overwhelming portion of all enslavement and murder in the history of the world have come from the hands of government. And since we have seen that the central thrust of the libertarian is to oppose all aggression against the rights of person and property, the libertarian necessarily opposes the institution of the State as the inherent and overwhelmingly the most important enemy of those precious rights.

There is another reason why State aggression has been far more important than private, a reason apart from the greater organization and central mobilizing of resources that the rulers of the State can impose. The reason is the absence of any check upon State depredation, a check that does exist when we have to worry about muggers or the Mafia. To guard against private criminals we have been able to turn to the State and its police; but who can guard us against the State itself? No one. For another critical distinction of the State is that it compels the monopolization of the service of protection; the State arrogates to itself a virtual monopoly of violence and of ultimate decision-making in society. If we don’t like the decisions of the State courts, for example, there are no other agencies of protection to which we may turn.

It is true that, in the United States, at least, we have a constitution that imposes strict limits on some powers of government. But, as we have discovered in the past century, no constitution can interpret or enforce itself; it must be interpreted by men. And if the ultimate power to interpret a constitution is given to the government’s own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. Furthermore, the highly touted “checks and balances” and “separation of powers” in the American government are flimsy indeed, since in the final analysis all of these divisions are part of the same government and are governed by the same set of rulers.

One of America’s most brilliant political theorists, John C. Calhoun, wrote prophetically of the inherent tendency of a State to break through the limits of its written constitution:

A written constitution certainly has many and considerable advantages, but it is a great mistake to suppose that the mere insertion of provisions to restrict and limit the powers of the government, without investing those for whose protection they are inserted with the means of enforcing their observance, will be sufficient to prevent the major and dominant party from abusing its powers. Being the party in possession of the government, they will . . . be in favor of the powers granted by the constitution and opposed to the restrictions intended to limit them. As the major and dominant parties, they will have no need of these restrictions for their protection. . . .

The minor or weaker party, on the contrary, would take the opposite direction and regard them as essential to their protection against the dominant party. . . . But where there are no means by which they could compel the major party to observe the restrictions, the only resort left them would be a strict construction of the constitution. . . . To this the major party would oppose a liberal construction—one which would give to the words of the grant the broadest meaning of which they were susceptible. It would then be construction against construction—the one to contract and the other to enlarge the powers of the government to the utmost. But of what possible avail could the strict construction of the minor party be, against the liberal interpretation of the major, when the one would have all the powers of the government to carry its construction into effect and the other be deprived of all means of enforcing its construction? In a contest so unequal, the result would not be doubtful. The party in favor of the restrictions would be overpowered. . . . The end of the contest would be the subversion of the constitution . . . the restrictions would ultimately be annulled and the government be converted into one of unlimited powers.

Nor would the division of government into separate and, as it regards each other, independent departments prevent this result . . . as each and all the departments—and, of course, the entire government—would be under the control of the numerical majority, it is too clear to require explanation that a mere distribution of its powers among its agents or representatives could do little or nothing to counteract its tendency to oppression and abuse of power.[1]

But why worry about the weakness of limits on governmental power? Especially in a “democracy,” in the phrase so often used by American liberals in their heyday before the mid-1960s when doubts began to creep into the liberal Utopia “Are we not the government?” In the phrase “we are the government,” the useful collective term “we” has enabled an ideological camouflage to be thrown over the naked exploitative reality of political life For if we truly are the government, then anything a government does to an individual is not only just and not tyrannical, it is also “voluntary” on the part of the individual concerned. If the government has incurred a huge public debt which must be paid by taxing one group on behalf of another, this reality of burden is conveniently obscured by blithely saying that “we owe it to ourselves” (but who are the “we” and who the “ourselves”?) If the government drafts a man, or even throws him into jail for dissident opinions, then he is only “doing it to himself” and therefore nothing improper has occurred. Under this reasoning, then, Jews murdered by the Nazi government were not murdered, they must have “committed suicide,” since they were the government (which was democratically chosen), and therefore anything the government did to them was only voluntary on their part. But there is no way out of such grotesqueries for those supporters of government who see the State merely as a benevolent and voluntary agent of the public.

And so we must conclude that “we” are not the government, the government is not “us.” The government does not in any accurate sense “represent” the majority of the people, but even if it did, even if 90% of the people decided to murder or enslave the other 10%, this would still be murder and slavery, and would not be voluntary suicide or enslavement on the part of the oppressed minority. Crime is crime, aggression against rights is aggression, no matter how many citizens agree to the oppression There is nothing sacrosanct about the majority, the lynch mob, too, is the majority in its own domain.

But while, as in the lynch mob, the majority can become actively tyrannical and aggressive, the normal and continuing condition of the State is oligarchic rule: rule by a coercive elite which has managed to gain control of the State machinery. There are two basic reasons for this: one is the inequality and division of labor inherent in the nature of man, which gives rise to an “Iron Law of Oligarchy” in all of man’s activities; and second is the parasitic nature of the State enterprise itself.

We have said that the individualist is not an egalitarian. Part of the reason for this is the individualist’s insight into the vast diversity and individuality within mankind, a diversity that has the chance to flower and expand as civilization and living standards progress. Individuals differ in ability and in interest both within and between occupations; and hence, in all occupations and walks of life, whether it be steel production or the organization of a bridge club, leadership in the activity will inevitably be assumed by a relative handful of the most able and energetic, while the remaining majority will form themselves into rank-and-file followers. This truth applies to all activities, whether they are beneficial or malevolent (as in criminal organizations). Indeed, the discovery of the Iron Law of Oligarchy was made by the Italian sociologist Robert Michels, who found that the Social Democratic Party of Germany, despite its rhetorical commitment to egalitarianism, was rigidly oligarchical and hierarchical in its actual functioning.

A second basic reason for the oligarchic rule of the State is its parasitic nature—the fact that it lives coercively off the production of the citizenry. To be successful to its practitioners, the fruits of parasitic exploitation must be confined to a relative minority, otherwise a meaningless plunder of all by all would result in no gains for anyone. Nowhere has the coercive and parasitic nature of the State been more clearly limned than by the great late nineteenth-century German sociologist, Franz Oppenheimer. Oppenheimer pointed out that there are two and only two mutually exclusive means for man to obtain wealth. One, the method of production and voluntary exchange, the method of the free market, Oppenheimer termed the “economic means”; the other, the method of robbery by the use of violence, he called the “political means.” The political means is clearly parasitic, for it requires previous production for the exploiters to confiscate, and it subtracts from instead of adding to the total production in society. Oppenheimer then proceeded to define the State as the “organization of the political means”—the systematization of the predatory process over a given territorial area.[2]

In short, private crime is, at best, sporadic and uncertain; the parasitism is ephemeral, and the coercive, parasitic lifeline can be cut at any time by the resistance of the victims. The State provides a legal, orderly, systematic channel for predation on the property of the producers; it makes certain, secure, and relatively “peaceful” the lifeline of the parasitic caste in society. The great libertarian writer Albert Jay Nock wrote vividly that “the State claims and exercises the monopoly of crime. . . . It forbids private murder, but itself organizes murder on a colossal scale. It punishes private theft, but itself lays unscrupulous hands on anything it wants, whether the property of citizen or of alien.”[3]

At first, of course, it is startling for someone to consider taxation as robbery, and therefore government as a band of robbers. But anyone who persists in thinking of taxation as in some sense a “voluntary” payment can see what happens if he chooses not to pay. The great economist Joseph Schumpeter, himself by no means a libertarian, wrote that “the state has been living on a revenue which was being produced in the private sphere for private purposes and had to be deflected from these purposes by political force. The theory which construes taxes on the analogy of club dues or of the purchase of the services of, say, a doctor only proves how far removed this part of the social sciences is from scientific habits of mind.”[4] The eminent Viennese “legal positivist” Hans Kelsen attempted, in his treatise, The General Theory of Law and the State, to establish a political theory and justification of the State, on a strictly “scientific” and value-free basis. What happened is that early in the book, he came to the crucial sticking-point, the pons asinorum of political philosophy: What distinguishes the edicts of the State from the commands of a bandit gang? Kelsen’s answer was simply to say that the decrees of the State are “valid,” and to proceed happily from there, without bothering to define or explain this concept of “validity.” Indeed, it would be a useful exercise for non-libertarians to ponder this question: How can you define taxation in a way which makes it different from robbery?

To the great nineteenth-century individualist anarchist—and constitutional lawyer—Lysander Spooner, there was no problem in finding the answer. Spooner’s analysis of the State as robber group is perhaps the most devastating ever written:

It is true that the theory of our Constitution is, that all taxes are paid voluntarily; that our government is a mutual insurance company, voluntarily entered into by the people with each other. . . .

But this theory of our government is wholly different from the practical fact. The fact is that the government, like a highwayman, say to a man: “Your money, or your life.” And many, if not most, taxes are paid under the compulsion of that threat.

The government does not, indeed, waylay a man in a lonely place, spring upon him from the roadside, and holding a pistol to his head, proceed to rifle his pockets. But the robbery is none the less a robbery on that account; and it is far more dastardly and shameful.

The highwayman takes solely upon himself the responsibility, danger, and crime of his own act. He does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. He does not pretend to be anything but a robber. He has not acquired impudence enough to profess to be merely a “protector,” and that he takes men’s money against their will, merely to enable him to “protect” those infatuated travellers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. He is too sensible a man to make such professions as these. Furthermore, having taken your money, he leaves you, as you wish him to do. He does not persist in following you on the road, against your will; assuming to be your rightful “sovereign,” on account of the “protection” he affords you. He does not keep “protecting” you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you as a rebel, a traitor, and an enemy to your country, and shooting you down without mercy, if you dispute his authority, or resist his demands. He is too much of a gentleman to be guilty of such impostures, and insults, and villainies as these. In short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave.[5]

If the State is a group of plunderers, who then constitutes the State? Clearly, the ruling elite consists at any time of (a) the full-time apparatus? the kings, politicians, and bureaucrats who man and operate the State; and (b) the groups who have maneuvered to gain privileges, subsidies, and benefices from the State. The remainder of society constitutes the ruled. It was, again, John C. Calhoun who saw with crystal clarity that, no matter how small the power of government, no matter how low the tax burden or how equal its distribution, the very nature of government creates two unequal and inherently conflicting classes in society: those who, on, net, pay the taxes (the “tax-payers”), and those who, on net, live off taxes (the “tax-consumers”). Suppose that the government imposes a low and seemingly equally distributed tax to pay for building a dam. This very act takes money from most of the public to pay it out to net “tax-consumers”: the bureaucrats who run the operation, the contractors and workers who build the dam, etc. And the greater the scope of government decision-making, the greater its fiscal burdens, Calhoun went on, the greater the burden and the artificial inequality it imposes between these two classes:

Few, comparatively, as they are, the agents and employees of the government constitute that portion of the community who are the exclusive recipients of the proceeds of the taxes. Whatever amount is taken from the community in the form of taxes, if not lost, goes to them in the shape of expenditures or disbursements. The two—disbursement and taxation—constitute the fiscal action of the government. They are correlatives. What the one takes from the community under the name of taxes is transferred to the portion of the community who are the recipients under that of disbursements. But as the recipients constitute only a portion of the community, it follows, taking the two parts of the fiscal process together, that its action must be unequal between the payers of the taxes and the recipients of their proceeds. Nor can it be otherwise; unless what is collected from each individual in the shape of taxes shall be returned to him in that of disbursements, which would make the process nugatory and absurd. . . .

The necessary result, then, of the unequal fiscal action of the government is to divide the community into two great classes: one consisting of those who, in reality, pay the taxes and, of course, bear exclusively the burden of supporting the government; and the other, of those who are the recipients of their proceeds through disbursements, and who are, in fact, supported by the government; or, in fewer words, to divide it into tax-payers and tax-consumers.

But the effect of this is to place them in antagonistic relations in reference to the fiscal action of the government—and the entire course of policy therewith connected. For the greater the taxes and disbursements, the greater the gain of the one and the loss of the other, and vice versa. . . . The effect, then, of every increase is to enrich and strengthen the one, and impoverish and weaken the other.[6]

If states have everywhere been run by an oligarchic group of predators, how have they been able to maintain their rule over the mass of the population? The answer, as the philosopher David Hume pointed out over two centuries ago, is that in the long run every government, no matter how dictatorial, rests on the support of the majority of its subjects. Now this does not of course render these governments “voluntary,” since the very existence of the tax and other coercive powers shows how much compulsion the State must exercise. Nor does the majority support have to be eager and enthusiastic approval; it could well be mere passive acquiescence and resignation. The conjunction in the famous phrase “death and taxes” implies a passive and resigned acceptance to the assumed inevitability of the State and its taxation.

The tax-consumers, the groups that benefit from the operations of the State, will of course be eager rather than passive followers of the State mechanism. But these are only a minority. How is the compliance and acquiescence of the mass of the population to be secured? Here we come to the central problem of political philosophy—that branch of philosophy that deals with politics, the exercise of regularized violence: the mystery of civil obedience. Why do people obey the edicts and depredations of the ruling elite? Conservative writer James Burnham, who is the reverse of libertarian, put the problem very clearly, admitting that there is no rational justification for civil obedience: “Neither the source nor the justification of government can be put in wholly rational terms . . . why should I accept the hereditary or democratic or any other principle of legitimacy? Why should a principle justify the rule of that man over me?” His own answer is hardly calculated to convince many others: “I accept the principle, well . . . because I do, because that is the way it is and has been.”[7] But suppose that one does not accept the principle; what will the “way” be then? And why have the bulk of subjects agreed to accept it?

The State and the Intellectuals

The answer is that, since the early origins of the State, its rulers have always turned, as a necessary bolster to their rule, to an alliance with society’s class of intellectuals. The masses do not create their own abstract ideas, or indeed think through these ideas independently; they follow passively the ideas adopted and promulgated by the body of intellectuals, who become the effective “opinion moulders” in society. And since it is precisely a moulding of opinion on behalf of the rulers that the State almost desperately needs, this forms a firm basis for the age-old alliance of the intellectuals and the ruling classes of the State. The alliance is based on a quid pro quo: on the one hand, the intellectuals spread among the masses the idea that the State and its rulers are wise, good, sometimes divine, and at the very least inevitable and better than any conceivable alternatives. In return for this panoply of ideology, the State incorporates the intellectuals as part of the ruling elite, granting them power, status, prestige, and material security. Furthermore, intellectuals are needed to staff the bureaucracy and to “plan” the economy and society.

Before the modern era, particularly potent among the intellectual handmaidens of the State was the priestly caste, cementing the powerful and terrible alliance of warrior chief and medicine man, of Throne and Altar. The State “established” the Church and conferred upon it power, prestige, and wealth extracted from its subjects. In return, the Church anointed the State with divine sanction and inculcated this sanction into the populace. In the modern era, when theocratic arguments have lost much of their lustre among the public, the intellectuals have posed as the scientific cadre of “experts” and have been busy informing the hapless public that political affairs, foreign and domestic, are much too complex for the average person to bother his head about. Only the State and its corps of intellectual experts, planners, scientists, economists, and “national security managers” can possibly hope to deal with these problems. The role of the masses, even in “democracies,” is to ratify and assent to the decisions of their knowledgeable rulers.

Historically, the union of Church and State, of Throne and Altar, has been the most effective device for inducing obedience and support among the subjects. Burnham attests to the power of myth and mystery in inducing support when he writes that “In ancient times, before the illusions of science had corrupted traditional wisdom, the founders of Cities were known to be gods or demi-gods.”[8] To the established priestcraft, the ruler was either anointed by God or, in the case of the absolute rule of many Oriental despotisms, was even himself God; hence, any questioning or resistance to his rule would be blasphemy.

Many and subtle are the ideological weapons the State and its intellectuals have used over the centuries to induce their subjects to accept their rule. One excellent weapon has been the power of tradition. The longer lasting the rule of any given State, the more powerful this weapon; for then the X-Dynasty or the Y-State has the seeming weight of centuries of tradition behind it. Worship of one’s ancestors then becomes a none-too-subtle means of cultivating worship of one’s ancestral rulers. The force of tradition is, of course, bolstered by ancient habit, which confirms the subjects in the seeming propriety and legitimacy of the rule under which they live. Thus, the political theorist Bertrand De Jouvenel has written:

The essential reason for obedience is that it has become a habit of the species. . . . Power is for us a fact of nature. From the earliest days of recorded history it has always presided over human destinies . . . the authorities which ruled . . . in former times did not disappear without bequeathing to their successors their privilege nor without leaving in men’s minds imprints which are cumulative in their effect. The succession of governments which, in the course of centuries, rule the same society may be looked on as one underlying government which takes on continuous accretions.[9]

Another potent ideological force is for the State to deprecate the individual and exalt either the past or the present collectivity of society. Any isolated voice, any raiser of new doubts, can then be attacked as a profane violator of the wisdom of his ancestors. Moreover, any new idea, much less any new critical idea, must necessarily begin as a small minority opinion. Therefore, in order to ward off any potentially dangerous idea from threatening majority acceptance of its rule, the State will try to nip the new idea in the bud by ridiculing any view that sets itself against mass opinion. The ways in which the State rulers in ancient Chinese despotisms used religion as a method of binding the individual to the State-run society were summarized by Norman Jacobs:

Chinese religion is a social religion, seeking to solve the problems of social interests, not individual interests. . . . Religion is essentially a force of impersonal social adjustment and control—rather than a medium for the personal solutions of the individual—and social adjustment and control are effected through education and reverence for superiors. . . . Reverence for superiors—superior in age and hence in education and experience—is the ethical foundation of social adjustment and control. . . . In China, the inter-relationship of political authority with orthodox religion equated heterodoxy with political error. The orthodox religion was particularly active in persecuting and destroying heterodox sects; in this it was backed by the secular power.[10]

The general tendency of government to seek out and thwart any heterodox views was outlined, in typically witty and delightful style, by the libertarian writer H. L. Mencken:

All [that government] can see in an original idea is potential change, and hence an invasion of its prerogatives. The most dangerous man, to any government, is the man who is able to think things out for himself, without regard to the prevailing superstitions and taboos. Almost inevitably he comes to the conclusion that the government he lives under is dishonest, insane and intolerable, and so, if he is romantic, he tries to change it. And even if he is not romantic personally he is very apt to spread discontent among those who are.[11]

It is also particularly important for the State to make its rule seem inevitable: even if its reign is disliked, as it often is, it will then be met with the passive resignation expressed in the familiar coupling of “death and taxes.” One method is to bring to its side historical determinism: if X-State rules us, then this has been inevitably decreed for us by the Inexorable Laws of History (or the Divine Will, or the Absolute, or the Material Productive Forces), and nothing that any puny individuals may do can change the inevitable. It is also important for the State to inculcate in its subjects an aversion to any outcropping of what is now called “a conspiracy theory of history.” For a search for “conspiracies,” as misguided as the results often are, means a search for motives, and an attribution of individual responsibility for the historical misdeeds of ruling elites. If, however, any tyranny or venality or aggressive war imposed by the State was brought about not by particular State rulers but by mysterious and arcane “social forces,” or by the imperfect state of the world—or if, in some way, everyone was guilty (“We are all murderers,” proclaims a common slogan), then there is no point in anyone’s becoming indignant or rising up against such misdeeds. Furthermore, a discrediting of “conspiracy theories”—or indeed, of anything smacking of “economic determinism”—will make the subjects more likely to believe the “general welfare” reasons that are invariably put forth by the modern State for engaging in any aggressive actions.

The rule of the State is thus made to seem inevitable. Furthermore, any alternative to the existing State is encased in an aura of fear. Neglecting its own monopoly of theft and predation, the State raises the spectre among its subjects of the chaos that would supposedly ensue if the State should disappear. The people on their own, it is maintained, could not possibly supply their own protection against sporadic criminals and marauders. Furthermore, each State has been particularly successful over the centuries in instilling fear among its subjects of other State rulers. With the land area of the globe now parcelled out among particular States, one of the basic doctrines and tactics of the rulers of each State has been to identify itself with the territory it governs. Since most men tend to love their homeland, the identification of that land and its population with the State is a means of making natural patriotism work to the State’s advantage. If, then, “Ruritania” is attacked by “Walldavia,” the first task of the Ruritanian State and its intellectuals is to convince the people of Ruritania that the attack is really upon them, and not simply upon their ruling class. In this way, a war between rulers is converted into a war between peoples, with each people rushing to the defense of their rulers in the mistaken belief that the rulers are busily defending them. This device of nationalism has been particularly successful in recent centuries; it was not very long ago, at least in Western Europe, when the mass of subjects regarded wars as irrelevant battles between various sets of nobles and their retinues.

Another tried and true method for bending subjects to one’s will is the infusion of guilt. Any increase in private well-being can be attacked as “unconscionable greed,” “materialism,” or “excessive affluence”; and mutually beneficial exchanges in the market can be denounced as “selfish.” Somehow the conclusion always drawn is that more resources should be expropriated from the private sector and siphoned into the parasitic “public,” or State, sector. Often the call upon the public to yield more resources is couched in a stern call by the ruling elite for more “sacrifices” for the national or the common weal. Somehow, however, while the public is supposed to sacrifice and curtail its “materialistic greed,” the sacrifices are always one way. The State does not sacrifice; the State eagerly grabs more and more of the public’s material resources. Indeed, it is a useful rule of thumb: when your ruler calls aloud for “sacrifices,” look to your own life and pocketbook!

This sort of argumentation reflects a general double standard of morality that is always applied to State rulers but not to anyone else. No one, for example, is surprised or horrified to learn that businessmen are seeking higher profits. No one is horrified if workers leave lower-paying for higher-paying jobs. All this is considered proper and normal behavior. But if anyone should dare assert that politicians and bureaucrats are motivated by the desire to maximize their incomes, the hue and cry of “conspiracy theorist” or “economic determinist” spreads throughout the land. The general opinion—carefully cultivated, of course, by the State itself—is that men enter politics or government purely out of devoted concern for the common good and the public weal. What gives the gentlemen of the State apparatus their superior moral patina? Perhaps it is the dim and instinctive knowledge of the populace that the State is engaged in systematic theft and predation, and they may feel that only a dedication to altruism on the part of the State makes these actions tolerable. To consider politicians and bureaucrats subject to the same monetary aims as everyone else would strip the Robin Hood veil from State predation. For it would then be clear that, in the Oppenheimer phrasing, ordinary citizens were pursuing the peaceful, productive “economic means” to wealth, while the State apparatus was devoting itself to the coercive and exploitative organized “political means.” The emperor’s clothes of supposed altruistic concern for the common weal would then be stripped from him.

The intellectual arguments used by the State throughout history to “engineer consent” by the public can be classified into two parts: (1) that rule by the existing government is inevitable, absolutely necessary, and far better than the indescribable evils that would ensue upon its downfall; and (2) that the State rulers are especially great, wise, and altruistic men—far greater, wiser, and better than their simple subjects. In former times, the latter argument took the form of rule by “divine right” or by the “divine ruler” himself, or by an “aristocracy” of men. In modern times, as we indicated earlier, this argument stresses not so much divine approval as rule by a wise guild of “scientific experts” especially endowed in knowledge of statesmanship and the arcane facts of the world. The increasing use of scientific jargon, especially in the social sciences, has permitted intellectuals to weave apologia for State rule which rival the ancient priestcraft in obscurantism. For example, a thief who presumed to justify his theft by saying that he was really helping his victims by his spending, thus giving retail trade a needed boost, would be hooted down without delay. But when this same theory is clothed in Keynesian mathematical equations and impressive references to the “multiplier effect,” it carries far more conviction with a bamboozled public.

In recent years, we have seen the development in the United States of a profession of “national security managers,” of bureaucrats who never face electoral procedures, but who continue, through administration after administration, secretly using their supposed special expertise to plan wars, interventions, and military adventures. Only their egregious blunders in the Vietnam war have called their activities into any sort of public question; before that, they were able to ride high, wide, and handsome over the public they saw mostly as cannon fodder for their own purposes.

A public debate between “isolationist” Senator Robert A. Taft and one of the leading national security intellectuals, McGeorge Bundy, was instructive in demarking both the issues at stake and the attitude of the intellectual ruling elite. Bundy attacked Taft in early 1951 for opening a public debate on the waging of the Korean war. Bundy insisted that only the executive policy leaders were equipped to manipulate diplomatic and military force in a lengthy decades-long period of limited war against the communist nations. It was important, Bundy maintained, that public opinion and public debate be excluded from promulgating any policy role in this area. For, he warned, the public was unfortunately not committed to the rigid national purposes discerned by the policy managers; it merely responded to the ad hoc realities of given situations. Bundy also maintained that there should be no recriminations or even examinations of the decisions of the policy managers, because it was important that the public accept their decisions without question. Taft, in contrast, denounced the secret decision-making by military advisers and specialists in the executive branch, decisions effectively sealed off from public scrutiny. Furthermore, he complained, “If anyone dared to suggest criticism or even a thorough debate, he was at once branded as an isolationist and a saboteur of unity and the bipartisan foreign policy.”[12]

Similarly, at a time when President Eisenhower and Secretary of State Dulles were privately contemplating going to war in Indochina, another prominent national security manager, George F. Kennan, was advising the public that “There are times when, having elected a government, we will be best advised to let it govern and let it speak for us as it will in the councils of the nations.”[13]

We see clearly why the State needs the intellectuals; but why do the intellectuals need the State? Put simply, the intellectual’s livelihood in the free market is generally none too secure; for the intellectual, like everyone else on the market, must depend on the values and choices of the masses of his fellow men, and it is characteristic of these masses that they are generally uninterested in intellectual concerns. The State, on the other hand, is willing to offer the intellectuals a warm, secure, and permanent berth in its apparatus, a secure income, and the panoply of prestige.

The eager alliance between the State and the intellectuals was symbolized by the avid desire of the professors at the University of Berlin, in the nineteenth century, to form themselves into what they themselves proclaimed as the “intellectual bodyguard of the House of Hohenzollern.” From a superficially different ideological perspective, it can be seen in the revealingly outraged reaction of the eminent Marxist scholar of ancient China, Joseph Needham, to Karl Wittfogel’s acidulous critique of ancient Chinese despotism. Wittfogel had shown the importance for bolstering the system of the Confucian glorification of the gentleman-scholar officials who manned the ruling bureaucracy of despotic China. Needham charged indignantly that the “civilization which Professor Wittfogel is so bitterly attacking was one which could make poets and scholars into officials.”[14] What matter the totalitarianism so long as the ruling class is abundantly staffed by certified intellectuals!

The worshipful and fawning attitude of intellectuals toward their rulers has been illustrated many times throughout history. A contemporary American counterpart to the “intellectual bodyguard of the House of Hohenzollern” is the attitude of so many liberal intellectuals toward the office and person of the President. Thus, to political scientist Professor Richard Neustadt, the President is the “sole crown-like symbol of the Union.” And policy manager Townsend Hoopes, in the winter of 1960, wrote that “under our system the people can look only to the President to define the nature of our foreign policy problem and the national programs and sacrifices required to meet it with effectiveness.”[15] After generations of such rhetoric, it is no wonder that Richard Nixon, on the eve of his election as President, should thus describe his role: “He [the President] must articulate the nation’s values, define its goals and marshall its will.” Nixon’s conception of his role is hauntingly similar to Ernst Huber’s articulation, in the Germany of the 1930s, of the Constitutional Law of the Greater German Reich. Huber wrote that the head of State “sets up the great ends which are to be attained and draws up the plans for the utilization of all national powers in the achievement of the common goals . . . he gives the national life its true purpose and value.”[16]

The attitude and motivation of the contemporary national security intellectual bodyguard of the State has been caustically described by Marcus Raskin, who was a staff member of the National Security Council during the Kennedy administration. Calling them “megadeath intellectuals,” Raskin writes that:

. . . their most important function is to justify and extend the existence of their employers. . . . In order to justify the continued large-scale production of these [thermonuclear] bombs and missiles, military and industrial leaders needed some kind of theory to rationalize their use. . . . This became particularly urgent during the late 1950s, when economy-minded members of the Eisenhower Administration began to wonder why so much money, thought, and resources were being spent on weapons if their use could not be justified. And so began a series of rationalizations by the “defense intellectuals” in and out of the universities. . . . Military procurement will continue to flourish, and they will continue to demonstrate why it must. In this respect they are no different from the great majority of modern specialists who accept the assumptions of the organizations which employ them because of the rewards in money and power and prestige. . . . They know enough not to question their employers’ right to exist.[17]

This is not to say that all intellectuals everywhere have been “court intellectuals,” servitors and junior partners of power. But this has been the ruling condition in the history of civilizations—generally in the form of a priestcraft—just as the ruling condition in those civilizations has been one or another form of despotism. There have been glorious exceptions, however, particularly in the history of Western civilization, where intellectuals have often been trenchant critics and opponents of State power, and have used their intellectual gifts to fashion theoretical systems which could be used in the struggle for liberation from that power. But invariably, these intellectuals have only been able to arise as a significant force when they have been able to operate from an independent power base—an independent property base—separate from the apparatus of the State. For wherever the State controls all property, wealth, and employment, everyone is economically dependent on it, and it becomes difficult, if not impossible, for such independent criticism to arise. It has been in the West, with its decentralized foci of power, its independent sources of property and employment, and therefore of bases from which to criticize the State, where a body of intellectual critics has been able to flourish. In the Middle Ages, the Roman Catholic Church, which was at least separate if not independent from the State, and the new free towns were able to serve as centers of intellectual and also of substantive opposition. In later centuries, teachers, ministers, and pamphleteers in a relatively free society were able to use their independence from the State to agitate for further expansion of freedom. In contrast, one of the first libertarian philosophers, Lao-tse, living in the midst of ancient Chinese despotism, saw no hope for achieving liberty in that totalitarian society except by counseling quietism, to the point of the individual’s dropping out of social life altogether.

With decentralized power, with a Church separate from the State, with flourishing towns and cities able to develop outside the feudal power structure, and with freedom in society, the economy was able to develop in Western Europe in a way that transcended all previous civilizations. Furthermore, the Germanic—and particularly the Celtic—tribal structure which succeeded the disintegrating Roman Empire had strong libertarian elements. Instead of a mighty State apparatus exerting a monopoly of violence, disputes were solved by contending tribesmen consulting the elders of the tribe on the nature and application of the tribe’s customary and common law. The “chief” was generally merely a war leader who was only called into his warrior role whenever war with other tribes was under way. There was no permanent war or military bureaucracy in the tribes. In Western Europe, as in many other civilizations, the typical model of the origin of the State was not via a voluntary “social contract” but by the conquest of one tribe by another. The original liberty of the tribe or the peasantry thus falls victim to the conquerors. At first, the conquering tribe killed and looted the victims and rode on. But at some time the conquerors decided that it would be more profitable to settle down among the conquered peasantry and rule and loot them on a permanent and systematic basis. The periodic tribute exacted from the conquered subjects eventually came to be called “taxation.” And, with equal generality, the conquering chieftains parcelled out the land of the peasantry to the various warlords, who were then able to settle down and collect feudal “rent” from the peasantry. The peasants were often enslaved, or rather enserfed, to the land itself to provide a continuing source of exploited labor for the feudal lords.[18]

We may note a few prominent instances of the birth of a modern State through conquest. One was the military conquest of the Indian peasantry in Latin America by the Spaniards. The conquering Spanish not only established a new State over the Indians, but the land of the peasantry was parcelled out among the conquering warlords, who were ever after to collect rent from the tillers of the land. Another instance was the new political form imposed upon the Saxons of England after their conquest by the Normans in 1066. The land of England was parcelled out among the Norman warrior lords, who thereby formed a State and feudal-land apparatus of rule over the subject population. For the libertarian, the most interesting and certainly the most poignant example of the creation of a State through conquest was the destruction of the libertarian society of ancient Ireland by England in the seventeenth century, a conquest which established an imperial State and ejected numerous Irish from their cherished land. The libertarian society of Ireland, which lasted for a thousand years—and which will be described further below—was able to resist English conquest for hundreds of years because of the absence of a State which could be conquered easily and then used by the conquerors to rule over the native population.

But while throughout Western history, intellectuals have formulated theories designed to check and limit State power, each State has been able to use its own intellectuals to turn those ideas around into further legitimations of its own advance of power. Thus, originally, in Western Europe the concept of the “divine right of kings” was a doctrine promoted by the Church to limit State power. The idea was that the king could not just impose his arbitrary will. His edicts were limited to conforming with the divine law. As absolute monarchy advanced, however, the kings were able to turn the concept around to the idea that God put his stamp of approval on any of the king’s actions; that he ruled by “divine right.”

Similarly, the concept of parliamentary democracy began as a popular check on the absolute rule of the monarch. The king was limited by the power of parliament to grant him tax revenues. Gradually, however, as parliament displaced the king as head of State, the parliament itself became the unchecked State sovereign. In the early nineteenth century, English utilitarians, who advocated additional individual liberty in the name of social utility and the general welfare, were to see these concepts turned into sanctions for expanding the power of the State.

As De Jouvenel writes:

Many writers on theories of sovereignty have worked out one or the other of these restrictive devices. But in the end every single such theory has, sooner or later, lost its original purpose, and come to act merely as a springboard to Power, by providing it with the powerful aid of an invisible sovereign with whom it could in time successfully identify itself.[19]

Certainly, the most ambitious attempt in history to impose limits on the State was the Bill of Rights and other restrictive parts of the United States Constitution. Here, written limits on government became the fundamental law, to be interpreted by a judiciary supposedly independent of the other branches of government. All Americans are familiar with the process by which John C. Calhoun’s prophetic analysis has been vindicated; the State’s own monopoly judiciary has inexorably broadened the construction of State power over the last century and a half. But few have been as keen as liberal Professor Charles Black—who hails the process—in seeing that the State has been able to transform judicial review itself from a limiting device into a powerful instrument for gaining legitimacy for its actions in the minds of the public. If a judicial decree of “unconstitutional” is a mighty check on governmental power, so too a verdict of “constitutional” is an equally mighty weapon for fostering public acceptance of ever greater governmental power.

Professor Black begins his analysis by pointing out the crucial necessity for “legitimacy” of any government in order to endure; that is, basic majority acceptance of the government and its actions. Acceptance of legitimacy, however, becomes a real problem in a country like the United States, where “substantive limitations are built into the theory on which the government rests.” What is needed, adds Black, is a method by which the government can assure the public that its expanding powers are indeed “constitutional.” And this, he concludes, has been the major historic function of judicial review. Let Black illustrate the problem:

The supreme risk [to the government] is that of disaffection and a feeling of outrage widely disseminated throughout the population, and loss of moral authority by the government as such, however long it may be propped up by force or inertia or the lack of an appealing and immediately available alternative. Almost everybody living under a government of limited powers, must sooner or later be subjected to some governmental action which as a matter of private opinion he regards as outside the power of government or positively forbidden to government. A man is drafted, though he finds nothing in the Constitution about being drafted. . . . A farmer is told how much wheat he can raise; he believes, and he discovers that some respectable lawyers believe with him, that the government has no more right to tell him how much wheat he can grow than it has to tell his daughter whom she can marry. A man goes to the federal penitentiary for saying what he wants to, and he paces his cell reciting . . . “Congress shall make no laws abridging the freedom of speech.” . . . A businessman is told what he can ask, and must ask, for buttermilk.

The danger is real enough that each of these people (and who is not of their number?) will confront the concept of governmental limitation with the reality (as he sees it) of the flagrant overstepping of actual limits, and draw the obvious conclusion as to the status of his government with respect to legitimacy.[20]

This danger is averted, Black adds, by the State’s propounding the doctrine that some one agency must have the ultimate decision on constitutionality, and that this agency must be part of the federal government itself. For while the seeming independence of the federal judiciary has played a vital role in making its actions virtual Holy Writ for the bulk of the population, it is also true that the judiciary is part and parcel of the government apparatus and is appointed by the executive and legislative branches. Professor Black concedes that the government has thereby set itself up as a judge in its own case, and has thus violated a basic juridical principle for arriving at any kind of just decision. But Black is remarkably lighthearted about this fundamental breach: “The final power of the State . . . must stop where the law stops it. And who shall set the limit, and who shall enforce the stopping, against the mightiest power? Why, the State itself, of course, through its judges and its laws. Who controls the temperate? Who teaches the wise? . . .”[21] And so Black admits that when we have a State, we hand over all our weapons and means of coercion to the State apparatus, we turn over all of our powers of ultimate decision-making to this deified group, and then we must jolly well sit back quietly and await the unending stream of justice that will pour forth from these institutions—even though they are basically judging their own case. Black sees no conceivable alternative to this coercive monopoly of judicial decisions enforced by the State, but here is precisely where our new movement challenges this conventional view and asserts that there is a viable alternative: libertarianism.

Seeing no such alternative, Professor Black falls back on mysticism in his defense of the State, for in the final analysis he finds the achievement of justice and legitimacy from the State’s perpetual judging of its own cause to be “something of a miracle.” In this way, the liberal Black joins the conservative Burnham in falling back on the miraculous and thereby admitting that there is no satisfactory rational argument in support of the State.[22]

Applying his realistic view of the Supreme Court to the famous conflict between the Court and the New Deal in the 1930s, Professor Black chides his liberal colleagues for their shortsightedness in denouncing judicial obstructionism:

. . . the standard version of the story of the New Deal and the Court, though accurate in its way, displaces the emphasis. . . . It concentrates on the difficulties; it almost forgets how the whole thing turned out. The upshot of the matter was (and this is what I like to emphasize) that after some twenty-four months of balking . . . the Supreme Court, without a single change in the law of its composition, or, indeed, in its actual manning, placed the affirmative stamp of legitimacy on the New Deal, and on the whole new conception of government in America. [Italics the author’s.][23]

In this way, the Supreme Court was able to put the quietus to the large body of Americans who had strong constitutional objections to the expanded powers of the New Deal:

Of course, not everyone was satisfied. The Bonnie Prince Charlie of constitutionally commanded laissez-faire still stirs the hearts of a few zealots in the Highlands of choleric unreality. But there is no longer any significant or dangerous public doubt as to the constitutional power of Congress to deal as it does with the national economy. . . . We had no means, other than the Supreme Court, for imparting legitimacy to the New Deal.[24]

Thus, even in the United States, unique among governments in having a constitution, parts of which at least were meant to impose strict and solemn limits upon its actions, even here the Constitution has proved to be an instrument for ratifying the expansion of State power rather than the opposite. As Calhoun saw, any written limits that leave it to government to interpret its own powers are bound to be interpreted as sanctions for expanding and not binding those powers. In a profound sense, the idea of binding down power with the chains of a written constitution has proved to be a noble experiment that failed. The idea of a strictly limited government has proved to be Utopian; some other, more radical means must be found to prevent the growth of the aggressive State. The libertarian system would meet this problem by scrapping the entire notion of creating a government—an institution with a coercive monopoly of force over a given territory—and then hoping to find ways to keep that government from expanding. The libertarian alternative is to abstain from such a monopoly government to begin with.

We will explore the entire notion of a State-less society, a society without formal government, in later chapters. But one instructive exercise is to try to abandon the habitual ways of seeing things, and to consider the argument for the State de novo. Let us try to transcend the fact that for as long as we can remember, the State has monopolized police and judicial services in society. Suppose that we were all starting completely from scratch, and that millions of us had been dropped down upon the earth, fully grown and developed, from some other planet. Debate begins as to how protection (police and judicial services) will be provided. Someone says: “Let’s all give all of our weapons to Joe Jones over there, and to his relatives. And let Jones and his family decide all disputes among us. In that way, the Joneses will be able to protect all of us from any aggression or fraud that anyone else may commit. With all the power and all the ability to make ultimate decisions on disputes in the hands of Jones, we will all be protected from one another. And then let us allow the Joneses to obtain their income from this great service by using their weapons, and by exacting as much revenue by coercion as they shall desire.” Surely in that sort of situation, no one would treat this proposal with anything but ridicule. For it would be starkly evident that there would be no way, in that case, for any of us to protect ourselves from the aggressions, or the depredations, of the Joneses themselves. No one would then have the total folly to respond to that long-standing and most perceptive query: “Who shall guard the guardians?” by answering with Professor Black’s blithe: “Who controls the temperate?” It is only because we have become accustomed over thousands of years to the existence of the State that we now give precisely this kind of absurd answer to the problem of social protection and defense.

And, of course, the State never really did begin with this sort of “social contract.” As Oppenheimer pointed out, the State generally began in violence and conquest; even if at times internal processes gave rise to the State, it was certainly never by general consensus or contract.

The libertarian creed can now be summed up as (1) the absolute right of every man to the ownership of his own body; (2) the equally absolute right to own and therefore to control the material resources he has found and transformed; and (3) therefore, the absolute right to exchange or give away the ownership to such titles to whoever is willing to exchange or receive them. As we have seen, each of these steps involves property rights, but even if we call step (1) “personal” rights, we shall see that problems about “personal liberty” inextricably involve the rights of material property or free exchange. Or, briefly, the rights of personal liberty and “freedom of enterprise” almost invariably intertwine and cannot really be separated.

We have seen that the exercise of personal “freedom of speech,” for example, almost invariably involves the exercise of “economic freedom”—i.e., freedom to own and exchange material property. The holding of a meeting to exercise freedom of speech involves the hiring of a hall, traveling to the hall over roads, and using some form of transportation, etc. The closely related “freedom of the press” even more evidently involves the cost of printing and of using a press, the sale of leaflets to willing buyers—in short, all the ingredients of “economic freedom.” Furthermore, our example of “shouting ‘fire’ in a crowded theater” provides us with the clear guideline for deciding whose rights must be defended in any given situation—the guidelines being provided by our criterion: the rights of property.

Endnotes

[1] John C. Calhoun, A Disquisition on Government (New York Liberal Arts Press, 1953), PP 25–27.

[2] Franz Oppenheimer, The State (New York: Vanguard Press, 1926), pp. 24–27 and passim.

[3] Albert Jay Nock, On Doing the Right Thing, and Other Essays (New York Harper & Bros , 1928), p. 145.

[4] Joseph A. Schumpeter, Capitalism, Socialism, and Democracy (New York Harper & Bros , 1942), pp. 198 and 198n.

[5] Lysander Spooner, No Treason, No. VI: The Constitution of No Authority (1870, reprinted in Larkspur, Colo.: Pine Tree Press, 1966), p. 17.

[6] Calhoun, Disquisition on Government, pp. 16–18.

[7] James Burnham, Congress and the American Tradition (Chicago: Henry Regnery, 1959), pp. 6–8.

[8] Burnham, op. cit., p. 3.

[9] Bertrand De Jouvenel, On Power (New York: Viking Press, 1949), p. 22.

[10] Norman Jacobs, The Origin of Modern Capitalism and Eastern Asia (Hong Kong: Hong Kong University Press, 1958), pp. 161–63, 185. The great work on all aspects of Oriental despotism is Karl A. Wittfogel, Oriental Despotism: A Comparative Study of Total Power (New Haven: Yale University Press, 1957).

[11] H. L. Mencken, A Mencken Crestomathy (New York: Alfred A. Knopf, 1949), p. 145.

[12] See Leonard P. Liggio, Why the Futile Crusade? (New York: Center for Libertarian Studies, April 1978), pp. 41–43.

[13] George F. Kennan, Realities of American Foreign Policy (Princeton: Princeton University Press, 1954), pp. 95–96.

[14] Joseph Needham, “Review of Karl A. Wittfogel, Oriental Despotism,” Science and Society (1958), p. 65. For an attitude in contrast to Needham’s, see John Lukacs, “Intellectual Class or Intellectual Profession?,” in George B. deHuszar, ed., The Intellectuals (Glencoe, Ill.: The Free Press, 1960), p. 522.

[15] Richard Neustadt, “Presidency at Mid-Century,” Law and Contemporary Problems (Autumn, 1956), pp. 609–45; Townsend Hoopes, “The Persistence of Illusion: The Soviet Economic Drive and American National Interest,” Yale Review (March 1960), p. 336.

[16] Quoted in Thomas Reeves and Karl Hess, The End of the Draft (New York: Vintage Books, 1970), pp. 64–65.

[17] Marcus Raskin, “The Megadeath Intellectuals,” The New York Review of Books (November 14, 1963), pp. 6–7. Also see Martin Nicolaus, “The Professor, the Policeman, and the Peasant,” Viet-Report (June-July 1966), pp. 15–19.

[18] On the typical genesis of the State, see Oppenheimer, op. cit., Chapter II. While scholars such as Lowie and Wittfogel (op. cit., pp. 324–25) dispute the Gumplowicz-Oppenheimer-Rüstow thesis that the State always originated in conquest, they concede that conquest often entered into the alleged internal development of States. Furthermore, there is evidence that in the first great civilization, Sumer, a prosperous, free and Stateless society existed until military defense against conquest induced the development of a permanent military and State bureaucracy. Cf Samual Noah Kramer, The Sumerians (Chicago University of Chicago Press, 1963), pp. 73ff.

[19] De Jouvenel, op. cit., p. 27.

[20] Charles L. Black, Jr., The People and the Court (New York: Macmillan, 1960), pp. 42–43.

[21] Ibid., pp. 32–33.

[22] In contrast to the complacency of Black was the trenchant critique of the Constitution and the powers of the Supreme Court by the political scientist J. Allen Smith. Smith wrote that “Clearly, common sense required that no organ of the government should be able to determine its own powers.” J. Allen Smith, The Growth and Decadence of Constitutional Government (New York: Henry Holt and Co., 1930), p. 87. Clearly, common sense and “miracles” dictate very different views of government.

[23] Ibid., p. 64.

[24] Ibid., p. 65.