March 1, 2023

There’s a story from Taoist lore about a doctor who became famous for curing severe conditions and helping his patients recover from acute diseases.

When praised for his renowned accomplishments, the humble doctor quickly replied that he was not the skillful one, his brother was.  He said that his brother helped his patients stay healthy before diseases became acute. Promoting a harmonious balance that maintains the health of their clients is the true mark of skill for a caregiver.

Similarly, the great Chinese strategist Sun Tzu wrote in his Art of War that those skilled in warfare achieve victory without gaining a reputation for wisdom or courage because they avoid pitched battles and win by first setting the conditions for an easy triumph.

The idea of winning a hard-fought battle, as an underdog with the odds stacked against you, may sound noble or make for the stuff of legend.  Movies and television shows create drama by having the main characters sustain damage and snatch victory from the jaws of defeat.  Conditioned by these narratives, many people are enamored with epic tales and the struggle of a mythical hero’s journey.

These beliefs manifest as calling for a ‘fair fight’ or expecting someone to sustain damage before retaliating against an aggressor.  This all sounds just and equitable, particularly with so much social conditioning in this direction, yet it is completely contrary to the idea of ‘domestic tranquility’ for which republican government was established among the United States.

The US Constitution sought to form a more perfect union, a federated republic of cooperative independent states, to provide greater stability than the tumultuous era after the Revolutionary War yet prior to ratification.  The states were flailing at the whims of democracy, printing worthless paper money, allowing debts to go unpaid, and imposing mercantilist tariffs on behalf of politically connected cronies.  These policies fostered inequality, an air of chaos, and impeded commerce across state lines.

Under the Articles of Confederation, amidst the post-war recession, caused by emitting bills of credit and printing Continental Scrip, and, under the mob-rule of democracy, the states were internally turbulent and hostile toward one another.

The US Constitution was an attempt to restore justice by curtailing democracy, establishing a binding rule of law to be shared by the several states, and enforcing the use of standard weights and measures for a commodity based monetary system using gold and silver.

This is what the Preamble to the Constitution means when setting the intent to establish justice, insure domestic tranquility, and secure the blessings of liberty.  Sudden or violent social upheaval is antithetical to the purpose of good government.

Due to the erosion of the key pillars in a sound constitutional order, namely money and militia, the people of the United States no longer enjoy domestic tranquility.  The monetary system has been displaced by the Federal Reserve Note.  Rather than have fixed weights and measures the fiat dollar is in constant flux, subject to the whims of politicians and bureaucrats.  This has led to increasingly severe boom-bust business cycles.

Similarly, subject to enforcement by unaccountable bureaucracies, law has become increasingly onerous, arbitrary, and destructive of its very purpose.  People are no longer secure in their persons, houses, papers, or effects.  When certain classes of property, whether it be bump stocks or raw milk, can be declared contraband through executive order
or agency regulation, the individual rights to probable cause and due process have been annulled.

All of this is averse to the reasons for which the US Constitution was ratified.  Government actors are preventing the domestic tranquility promised to the people of the American republic, not necessarily because they are bad, or they are wrong for the job, but because of structural problems.

People in government are just like any other human being.  We know from the science of political economy that people respond to incentives.  This does not change when people enter government service.  However, being paid through taxation regardless of the value delivered to customers, coupled with the levers of state power creates tremendously perverse incentives.  This is known as “moral hazard”.

Again, we can set aside our emotional condemnation of “those people” in government that have designs on seizing more property, including your firearms, and seeking more decision-making power over your life.  It’s a function of the incentive structures and the only way to reduce the moral hazards embedded in the institutional arrangements is at the institutional level.

This is exactly what the framers of the Constitution were intending to do, and you can see evidence of these intentions in writings such as the Federalist Papers as well as the ratification debates in the several states.

The desire for a ‘separation of powers’ is why the general government is composed of three branches: legislative, executive, and judicial.  Yet we should remember that the Congress, President, and Supreme Court all derive their funding and authority, their livelihoods and prestige, from the same source: the power of the central state.

It should come as no surprise, then, that the solution to every problem the general government looks to solve carries with it an urging for more funding, extracted from taxpayers, and authorities, imposed as limits on individual choice, to be centralized at the national level.

If you look at virtually every policy proposal coming out of Washington DC, you can see these two elements. The incentives and institutional arrangements are currently such that everything the general government does comes at the expense, in terms of money taken in taxation and the liberty to choose, of the individual.

Further, while Congress is legislating in areas far outside those afforded by the Constitution, the legislation passed to the executive is written in such a way that tremendous latitude is granted to the bureaucrats in the executive branch as to how it will be carried into practice.  Because Congress members have disregarded the responsibility to legislate effectively, and in accordance with their oaths, executive agencies enjoy excessive discretion to implement legislation in such a way as to benefit the politicians and bureaucrats, again, at the expense of the tax-paying citizen’s liberty.

The federal republic was, by design, denied ultimate decision-making authority to the general government on all matters aside from those enumerated and defined by the operating charter known as the US Constitution.  To be sure, dividing the power of the general government into the legislative, executive, and judicial branches was intended
to further diffuse the authorities delegated to it so as to prevent abuses of power.

The diffused federal structure did not stop there, however.  We need to keep in mind that the US Constitution was an agreement of pre-existing states to cooperate toward their mutual security, foreign relations, and domestic tranquility.  The Constitution incorporated the free and independent states as well as other pre-existing institutions into the federal system and these elements also have roles to play in the maintenance of a well-functioning, federated republic.

Not the least of these is the militia of the several states.  The militia system has a several hundred-year legacy in the Anglo-American tradition from which the United States were formed.  In the American colonies, dating back to the early 1600’s, militia were the primary mode of community defense and law enforcement.

The militia of the several states, a term adopted into the US Constitution without definition (nor was Congress granted an authority to define), were a key component to federal operations.  You can see in Article 1, Section 8, Clause 15 of the Constitution that the militia of the several states are responsible for executing the laws, repelling invasions, and suppressing insurrections.

In order to accomplish this, Congress was granted authority to arm, organize, and discipline the militia for service to the union.  This, however, does not totally, or permanently, co-opt the militia of the several states under “national” control.

While Congress has authority to organize the militia for service to the union, they are “called forth” from their respective states.  Further, the militia of the several states are only under the command of the general government when called forth for actual service to the United States. Finally, Congress directly governs only the portion, or specific units, of the militia that are actively employed, for limited durations, in the service of the United States.

In times when militia units are not actively serving the general government, they operate according to the structure and rules set forth within their respective states, performing their traditional functions in community defense and public safety. And, as Article 1, Section 8, Clause 16 indicates, the several states reserve control of how officers are appointed and how the local units train in order to meet the requirements prescribed by Congress.

What this describes is just a few of the ways in which a monopoly on the use of force was denied to the general government by way of diffusing practical law enforcement functions to the most local and organic jurisdictions.

In order to execute its authority, under constitutional design, the general government is dependent upon cooperation from the several states, and, at an operational level, the general government must rely upon the people themselves, organized as local militia units, to execute the legislation passed to the Executive by Congress.

The President, as the chief executive of the general government, is the commander in chief of the portion of, and only for the duration of which they are called forth, the militia of the several states when in actual service of the United States. The President “takes care” that the laws are faithfully executed, yet at the local level the execution of law is a task for the militia of that particular jurisdiction.

Notice that the words police, sheriff, constable, or special agent do not occur in the US Constitution. Not even once.  This does not mean that these public offices should not exist, yet it does signify that these public offices hold no constitutional authority, vis-à-vis the United States federation.

Allowing any political entity a monopoly on the use of force, coupled with the power to tax, is a slippery slope on the path to tyranny.

We in the current generation are fortunate to have an ever advancing understanding of political and economic science, yet those people that framed the federal republic were also widely read and highly prescient.  They studied history and were steeped in liberal Enlightenment theory.  The founding fathers were highly suspicious of anyone who made their living solely through taxation, and with good reason.

Moral hazard is baked into the incentive structure of those who enjoy a monopoly on the use of force and make their living through taxation.  They will always seek to increase their income, through taxation, and decision-making authority, by curtailing individual choice, at the expense of the governed. That is why sound money and militia-based security are essential elements for maintaining constitutional order.

These two pillars are also essential to legally restoring the ‘blessings of liberty’ for which the federation was formed.