When rioting St. Paul cops arrested Amy Goodman, CREDO Mobile published the video and issued an action alert with the odd declarative title This is America. We don’t arrest journalists here..

The first problem is the false subject. We don’t arrest journalists, or anyone else. Government cops arrest people. I don’t, and neither do you.

So, let’s rephrase: This is America. Police don’t arrest journalists here.

But what’s the don’t supposed to mean here? If it’s supposed to be a simple declarative statement, then it’s obviously false. Police evidently do arrest journalists here; I know because I saw it happen in the video CREDO linked to.

Obviously, even though the statement seems to be declarative, it’s actually intended to do something other than state a fact. The statement is being made in the context of an outraged action alert, so it seems fair to interpret it as a normative claim instead of a descriptive claim. If I say You just don’t treat people that way, what I’m saying is that you shouldn’t treat people like that. So let’s rephrase: This is America. Police shouldn’t arrest journalists here.

That’s certainly true. Police shouldn’t arrest journalists. But then what’s the purpose of the This is America and the here? It’s true that police shouldn’t arrest journalists in America; but that’s no less true in Egypt or China. Police shouldn’t arrest journalists anywhere. So what did CREDO really mean?

There’s another voice in which people sometimes use this kind of talk — a voice different from the statement of fact, and a voice different from the expression of a moral judgment. It is the voice of authority laying down an expectation for others to follow. (We don’t use that kind of language in this household; Catholics do not use birth control; etc.) And I think here we have a clear understanding of what it was CREDO meant to say, and what purpose the This is America is supposed to serve. Not content with simply pointing out the fact that it’s wrong for police to arrest journalists — that this kind of conduct is violent, repressive, tyrannical, and indeed evil — what they wanted to do was to cite an authority on their side. The authority is supposedly wrapped up in the idea of America (meaning the U.S.A.) — U.S. norms, U.S. political culture, and the U.S. Constitution.

But what good does it do to try to assume the voice of authority here? What justifies the claim? What purpose does it serve? In St. Paul, several different police agencies, ramrodded by the Ramsey County Sheriff’s department, staged massive pre-emptive raids against houses where activists were staying and against the RNC Welcoming Committee’s convergence space. Many of the imprisoned protesters were held for days without charges. Many were abused by their jailers, including a woman being knocked to the ground and dragged by her hair, several protesters being denied prescription or over-the-counter medications for serious medical conditions, and a 19-year-old activist named Elliot Hughes, who was beaten and tortured for over an hour because, according to the Ramsey County Sheriff’s department, he was being verbally disruptive.

There is little or no evidence that any legal authority, either executive or judicial, will ever hold any of these cops or jailers accountable for what they did. Nobody in a position of authority disapproves. Nobody in a position of authority cares. Whatever source of authority CREDO hopes to invoke here is a dead letter; the very people that it gave the power to interpret it and enforce it have decided that there’s nothing to forbid police to harass and terrorize journalists like this. If those authorities are right, then CREDO’s attempt to speak in the voice of authority is fraudulent: the authority that they are trying to invoke has nothing to say for them. If those authorities are wrong, then CREDO’s attempt to speak in the voice of authority is idle: the same system that they hope to call to their aid is constructed so that CREDO can do nothing about it.

The first step is admitting that you have a problem. We live in a state where the highest authorities consider this repressive violence perfectly acceptable behavior in the name of Law and Order. And it is long past time to give up on the delusion that the Authorities and the Law will get our back against this kind of abuse of power.

They haven’t.

They aren’t.

They won’t.

It is long past time to give up on the voice of authority and its false promises. To be willing to make our demands in the voice of morality, to speak up for our rights as human rights, not as the easily-revoked privileges of a paper constitution. America, if that means the political entity that rules over this territory, is not our friend, or our ally. It will do nothing for us. When we protest, it will turn those very cops on us. We are in no position to lay down expectations or give orders to our occupiers. We have no authority that they will ever recognize. What we have to do is to speak to the justice of our cause, and the righteousness of our resistance against acts that are unjust and tyrannical, no matter where they may be committed. Peace, freedom, and justice are good enough to stand on their own, just as they are, whether in America, or Egypt, or China, or anywhere else in the world.

Happy International Ignore the Constitution Day, fellow citizens.

See also:

• GT 2008-07-15: I feel safer already… (#2)
• GT 2008-06-24: U.S. out of Las Vegas!
• GT 2007-09-06: Marching orders
• GT 2007-09-17: International Ignore the Constitution Day #220
• GT 2006-09-17: International Ignore the Constitution Day festivities

From Drug War Chronicle (2008-08-22): Feature: The Drug Checkpoint That Wasn’t — Louisiana Lawmen Play Fast and Loose with the Constitution:

In its 2000 decision in Indianapolis v. Edmond, the US Supreme Court held that the city’s effort to attack the drug trade by holding a checkpoint to look for drugs was an unconstitutional violation of the Fourth Amendment’s protection of the right to be free from unwarranted searches and seizures. But in the years since then, a handful of departments across the county, usually in the South, have brazenly trumpeted their resort to drug checkpoints.

The latest department to step into the breach was Louisiana’s Beauregard Parish Sheriff’s Office, which held such a checkpoint last Thursday night near the town of Starks. Following the lead of sheriff’s deputies, the local newspaper was all over the story.

Narcotics checkpoint a success, blared the headline in Monday’s Derrider Daily News story on the police action. The article went on to explain how, following complaints of drug dealing in the neighborhood, police decided to take action:

The Beauregard Parish Sheriff’s Office set up a Narcotics Checkpoint Thursday night near Starks, Louisiana, the local paper reported. Due to several complaints coming from the Fields area, the BPSO put together a joint operation with the help of Sheriff Ricky Moses and the DeRidder city police department. The operations utilized several BPSO deputies as well as the new Drug Interdiction team led by Detectives Dale Sharp and Greg Hill. Seven police units total were used for the operation in addition to four other units performing regular patrols.

The checkpoint resulted in three arrests for marijuana and hydrocodone possession, a quarter pound of marijuana being tossed from an unknown vehicle’s window, and a number of traffic citations.

If this really was a drug checkpoint, it is clearly unconstitutional, said Steve Silverman, executive director of the constitutional rights defense group Flex Your Rights.

Well, O.K., whatever. If you are ever hauled into court as the result of one of these checkpoints, that’s important information to have. But the problem is that cops are, as a rule, better at manipulating the court than you are; they are trained in how to exploit loopholes, how to manipulate people, and how to get cheap sympathy from judges and juries. As Silverman himself says:

If people went to court and fought it, the evidence would be dismissed — unless they consented to a search. The sheriff down there must know checkpoints like this are constitutionally questionable, but they can still ask people to consent, and they know how to phrase that request in such a way that people are likely to consent, he said.

The problem with these roadblocks and checkpoints by uniformed highwaymen, which impose blanket screening of ordinary people by police and which intimidate or force everyone to submit to interrogation and searches, treating anyone who happens to be on a particular road as a presumptive criminal, who needs to prove her innocence to the police in order to be left alone to go about her own business, based on no probable cause whatever — and all in order to find and imprison a handful of nonviolent drug traffickers, who are violating absolutely nobody’s rights, who are doing a peaceful and productive service for willing customers, whose only crime was to defy a senseless government prohibition on the kinds of chemicals that people may willingly put into their own bodies — the problem with that, I say, has nothing to do with whether these internal checkpoints and constrictions on peaceful people’s freedom of movement and security in their persons and effects, happen to be consistent or inconsistent with a fundamentalist reading of the words scribbled onto a 200-year-old piece of paper. The real problem is not that this kind of Ihre Papiere, bitte treatment is unconstitutional; it’s that it’s tyrannical. Tyranny is bad enough whether or not the Nine can be convinced that it can be excused on a legal technicality, and the reasons why are moral, not constitutional. Even when cops can invent absurd technicalities in order to convince a judge (who is always willing to be convinced that another State employee was acting within bounds) that their extraction of searches through intimidation, coercion, and the inevitable recourse to the threat of arbitrary arrest on any of the countless vague laws that nobody can possibly avoid violating in daily life, all somehow amounts to consent. And those of us who oppose the drug war, and the police state that has emerged in order to prosecute it, ought to be more clear and less timid about saying so. We don’t need The Law on our side to be right. If the Constitution allows that kind of brigandry and tyranny, then the Constitution itself is tyrannical. If the Constitution does not allow it, then it has been demonstrated as thoroughly as you please that the Constitution can do nothing effective to prevent it. In either case it is unfit to exist, and certainly undeserving of our deferential appeals.

In related news, holiday bloggers should keep in mind that there are only 7 more ranting days left before International Ignore the Constitution Day.

See also:

• GT 2007-12-04: We put the Arch in Anarchy #2
• GT 2007-09-06: Marching orders
• GT 2006-01-25: We put the Arch in Anarchy
• GT 2006-01-05: An Open Question for Constitutionalist Liberals

Other than setting off explosions and taking strong drink, indulging in nationalist nostalgia is probably the most popular way to celebrate July 4th in the U.S. of A. It is, we are told, a day to sing national hymns, pledge our allegiance, have a parade, say a few words about the glory of this old Union, and fly the military colors from every available flagpole. We are told that it is, above all, a day sanctified for celebrating the birth of a new nation.

No it isn’t.

July 4th is not the anniversary of the birth of a new government; it is the anniversary of the ignominious death of a tyranny. On July 4th, 1776, there was no such thing as the United States of America, and the events of that day did nothing to create it. The regime under which we live today was not proclaimed until almost a decade later, on September 17, 1787. What was proclaimed on July 4th was not the establishment of a new government, but the dissolution of all political allegiance to the old one. All for the best: in this secessionist republic of one, we see no reason to celebrate the birth and rise of a foreign power; and in any case a transfer of power from London to Washington, from King George III to President George I, is no more worthy of celebration than any other coup d’etat. What is worth celebrating is this:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it …. [W]hen a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

—Declaration of Independence, 4 July 1776

That is, the revolutionary doctrine that we all, each of us, are the equal of every puffed-up prince and President—that as such you, personally, have every right to refuse the arbitrary orders of tyrants—to ignore their sanctimonious claims of sovereignty—to sever all political connections if you want—and to defend yourself from any usurper who would try to rule you without your consent. There is no man or woman on this earth who has the natural right to rule over you, and you have every right, whenever and wherever you will to do so, to oppose, withdraw, resist, and thus stand aright as a free and sovereign human being.

The logical conclusion of the radical equality proclaimed by the Declaration is not, however, what Jefferson or any of the other quasi-revolutionists thought it was. It is not home rule, and it is not republican government. It is not majoritarian democracy or the elective kingship that passes for the Presidency today. It is not democratic government or limited government; it is not any kind of government at all. If you, personally, are equal in rightful authority to your would-be rulers, and so have every right to tell them where they can go promulgate their law; if you, personally, have every right to refuse their demands and nullify their authority over you, at your discretion; if you have every right to withdraw your allegiance, and every right to defend yourself if they should come after you; then the logical conclusion is not popular sovereignty, but individual sovereignty, for each of us, which is to say, anarchy. So when a self-styled Progressive Patriot like Russ Feingold, arbitrary Senator over the state of Wisconsin, utters something like this, in opposing the efforts of the efforts of the arbitrary Congress over the United States to implement an unapologetically tyrannical regime of government eavesdropping and surveillance:

I teased some of my colleagues and said we can celebrate the Constitution on July 4th and maybe when we come back you’ll decide not to tear it up.

… We should applaud the political cause, but recognize the reasons given for the counter-historical bunk that they are. July 4th had nothing to do with begging the existing government to abide by the promises supposedly made in its own Constitution, or with trying to get the powers that be to exercise their better natures. The throne of the Constitution, or of the Law, or of the Majority, is no more dignified or sacred than the old thrones of the Czars and Sultans. Let’s not bow and scrape before them. William Lloyd Garrison, for one, knew what this Revolutionary anniversary was all about, and 154 years ago today, in Framingham, Massachusetts, he showed how you ought to celebrate the Constitution on July 4th:

The rally began with a prayer and a hymn. Then Garrison launched into one of the most controversial performances of his career. To-day, we are called to celebrate the seventy-eighth anniversary of American Independence. In what spirit? he asked, with what purpose? to what end? The Declaration of Independence had declared that all men are created equal … It is not a declaration of equality of property, bodily strength or beauty, intellectually or moral development, industrial or inventive powers, but equality of RIGHTS—not of one race, but of all races.

—Massachussets Historical Society, July 2005

We have proved recreant to our own faith, false to our own standard, treacherous to the trust committed to our hands; so that, instead of helping to extend the blessings of freedom, we have mightily served the cause of tyranny throughout the world. Garrison then spoke about the prospects for the success of the revolutionary spirit within the nation, prospects he regarded as dismal because of the insatiable greed, boundless rapacity, and profligate disregard of justice prevalent at the time. He concluded his speech by asserting, Such is our condition, such are our prospects, as a people, on the 4th of July, 1854! Setting aside his manuscript, he told the assembly that he should now proceed to perform an action which would be the testimony of his own soul to all present, of the estimation in which he held the pro-slavery laws and deeds of the nation …

— from Thoreau: Lecture 43, 4 July, 1854

Producing a copy of the Fugitive Slave Law, he set fire to it, and it burst to ashes. Using an old and well-known phrase, he said, And let all the people say, Amen; and a unanimous cheer and shout of Amen burst from the vast audience. In like manner, Mr. Garrison burned the decision of Edward G. Loring in the case of Anthony Burns, and the late charge of Judge Benjamin R. Curtis to the United States Grand Jury in reference to the treasonable assault upon the Court House for the rescue of the fugitive—the multitude ratifying the fiery immolation with shouts of applause. Then holding up the U.S. Constitution, he branded it as the source and parent of all the other atrocities,—a covenant with death, and an agreement with hell,—and consumed it to ashes on the spot, exclaiming, So perish all compromises with tyranny! And let all the people say, Amen! A tremendous shout of Amen! went up to heaven in ratification of the deed, mingled with a few hisses and wrathful exclamations from some who were evidently in a rowdyish state of mind, but who were at once cowed by the popular feeling.

—from The Liberator, 7 July 1854 (boldface added)

Today is not a day for nationalist bromides; least of all is it a day for government or its laws or its foot-soldiers. It’s a day for radicals and revolutionaries. A day to proclaim independence, and a day to remember that the American Revolution, if it was worth anything, is far from over. Here is how Frederick Douglass, a refugee from Southern slavery who became one of the United States’ most celebrated orators, put it back in July of 1852:

Fellow-citizens, pardon me, allow me to ask, why am I called upon to speak here to-day? What have I, or those I represent, to do with your national independence? Are the great principles of political freedom and of natural justice, embodied in that Declaration of Independence, extended to us? and am I, therefore, called upon to bring our humble offering to the national altar, and to confess the benefits and express devout gratitude for the blessings resulting from your independence to us?

…

Fellow-citizens; above your national, tumultous joy, I hear the mournful wail of millions! whose chains, heavy and grievous yesterday, are, to-day, rendered more intolerable by the jubilee shouts that reach them. If I do forget, if I do not faithfully remember those bleeding children of sorrow this day, may my right hand forget her cunning, and may my tongue cleave to the roof of my mouth! To forget them, to pass lightly over their wrongs, and to chime in with the popular theme, would be treason most scandalous and shocking, and would make me a reproach before God and the world. My subject, then fellow-citizens, is AMERICAN SLAVERY. I shall see, this day, and its popular characteristics, from the slave’s point of view. Standing, there, identified with the American bondman, making his wrongs mine, I do not hesitate to declare, with all my soul, that the character and conduct of this nation never looked blacker to me than on this 4th of July! Whether we turn to the declarations of the past, or to the professions of the present, the conduct of the nation seems equally hideous and revolting. America is false to the past, false to the present, and solemnly binds herself to be false to the future. Standing with God and the crushed and bleeding slave on this occasion, I will, in the name of humanity which is outraged, in the name of liberty which is fettered, in the name of the constitution and the Bible, which are disregarded and trampled upon, dare to call in question and to denounce, with all the emphasis I can command, everything that serves to perpetuate slavery—the great sin and shame of America! I will not equivocate; I will not excuse; I will use the severest language I can command; and yet not one word shall escape me that any man, whose judgement is not blinded by prejudice, or who is not at heart a slaveholder, shall not confess to be right and just.

But I fancy I hear some one of my audience say, it is just in this circumstance that you and your brother abolitionists fail to make a favorable impression on the public mind. Would you argue more, and denounce less, would you persuade more, and rebuke less, your cause would be much more likely to succeed. But, I submit, where all is plain there is nothing to be argued. What point in the anti-slavery creed would you have me argue? On what branch of the subject do the people of this country need light? Must I undertake to prove that the slave is a man? That point is conceded already. Nobody doubts it. The slaveholders themselves acknowledge it in the enactment of laws for their government. They acknowledge it when they punish disobedience on the part of the slave. There are seventy-two crimes in the State of Virginia, which, if committed by a black man, (no matter how ignorant he be), subject him to the punishment of death; while only two of the same crimes will subject a white man to the like punishment. What is this but the acknowledgement that the slave is a moral, intellectual and responsible being? The manhood of the slave is conceded. It is admitted in the fact that Southern statute books are covered with enactments forbidding, under severe fines and penalties, the teaching of the slave to read or to write. When you can point to any such laws, in reference to the beasts of the field, then I may consent to argue the manhood of the slave. When the dogs in your streets, when the fowls of the air, when the cattle on your hills, when the fish of the sea, and the reptiles that crawl, shall be unable to distinguish the slave from a brute, there will I argue with you that the slave is a man!

For the present, it is enough to affirm the equal manhood of the negro race. Is it not astonishing that, while we are ploughing, planting and reaping, using all kinds of mechanical tools, erecting houses, constructing bridges, building ships, working in metals of brass, iron, copper, silver and gold; that, while we are reading, writing and cyphering, acting as clerks, merchants and secretaries, having among us lawyers, doctors, ministers, poets, authors, editors, orators and teachers; that, while we are engaged in all manner of enterprises common to other men, digging gold in California, capturing the whale in the Pacific, feeding sheep and cattle on the hill-side, living, moving, acting, thinking, planning, living in families as husbands, wives and children, and, above all, confessing and worshipping the Christian’s God, and looking hopefully for life and immortality beyond the grave, we are called upon to prove that we are men!

Would you have me argue that man is entitled to liberty? that he is the rightful owner of his own body? You have already declared it. Must I argue the wrongfulness of slavery? Is that a question for Republicans? Is it to be settled by the rules of logic and argumentation, as a matter beset with great difficulty, involving a doubtful application of the principle of justice, hard to be understood? How should I look to-day, in the presence of Americans, dividing, and subdividing a discourse, to show that men have a natural right to freedom? speaking of it relatively, and positively, negatively, and affirmatively. To do so, would be to make myself ridiculous, and lo offer an insult to your understanding. There is not a man beneath the canopy of heaven, that does not know that slavery is wrong for him.

What, am I to argue that it is wrong to make men brutes, to rob them of their liberty, to work them without wages, to keep them ignorant of their relations to their fellow men, to beat them with sticks, to flay their flesh with the lash, to load their limbs with irons, to hunt them with dogs, to sell them at auction, to sunder their families, to knock out their teeth, to burn their flesh, to starve them into obedience and submission to their masters? Must I argue that a system thus marked with blood, and stained with pollution, is wrong? No! I will not. I have better employments for my time and strength, than such arguments would imply.

What, then, remains to be argued? Is it that slavery is not divine; that God did not establish it; that our doctors of divinity are mistaken? There is blasphemy in the thought. That which is inhuman, cannot be divine! Who can reason on such a proposition? They that can, may; I cannot. The time for such argument is past.

At a time like this, scorching irony, not convincing argument, is needed. O! had I the ability, and could I reach the nation’s ear, I would, to-day, pour out a fiery stream of biting ridicule, blasting reproach, withering sarcasm, and stern rebuke. For it is not light that is needed, but fire; it is not the gentle shower, but thunder. We need the storm, the whirlwind, and the earthquake. The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled; the hypocrisy of the nation must be exposed; and its crimes against God and man must be proclaimed and denounced.

What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy—a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour.

—Frederick Douglass (1852): What to the Slave is the Fourth of July?

And let the people say, Amen.

Happy Revolution Day. Let’s shut off the Lee Greenwood, and take down that damned flag. It’s time to celebrate the day under a new banner. One which reads:

All power to the people!

And:

No truce with Kings!

And:

Anarchy is the radical notion that other people are not your property.

Other orations:

• GT 2005-07-04: Burn, baby, burn
• GT 2006-07-04: Independence Day
• Roderick Long, Austro-Athenian Empire (2006-07-04): A Thought for the Fourth

(Via Miriam @ feministing 2008-06-18, via Feminist in Pink 2008-06-22.)

Here is the latest proposal from the American Medical Association, to have the government insist that every birth is properly institutionalized, so that they can make sure every birth leads to a fat and healthy hospital bill, with a proper Birth Guild-certified Expert looking over every midwife’s shoulder and between every expectant mother’s legs. And if the expectant mother doesn’t want that kind of a birth, well, she’d better learn to want it—or else.

• Whereas, Twenty-one states currently license midwives to attend home births, all using the certified professional midwife (CPM) credential (CPM or lay midwives), not the certified midwives (CM) credential which both the American College of Obstetricians and Gynecologists (ACOG) and American College of Nurse Midwives (ACNM) recognize; and

• Whereas, There has been much attention in the media by celebrities having home deliveries, with recent Today Show headings such as Ricki Lake takes on baby birthing industry: Actress and former talk show host shares her at-home delivery in new film; and

• Whereas, An apparently uncomplicated pregnancy or delivery can quickly become very complicated in the setting of maternal hemorrhage, shoulder dystocia, eclampsia or other obstetric emergencies, necessitating the need for rigorous standards, appropriate oversight of obstetric providers, and the availability of emergency care, for the health of both the mother and the baby during a delivery; therefore be it

• RESOLVED, That our American Medical Association support the recent American College of Obstetricians and Gynecologists (ACOG) statement that the safest setting for labor, delivery, and the immediate post-partum period is in the hospital, or a birthing center within a hospital complex, that meets standards jointly outlined by the American Academy of Pediatrics (AAP) and ACOG, or in a freestanding birthing center that meets the standards of the Accreditation Association for Ambulatory Health Care, The Joint Commission, or the American Association of Birth Centers (New HOD Policy); and be it further

• RESOLVED, That our AMA develop model legislation in support of the concept that the safest setting for labor, delivery, and the immediate post-partum period is in the hospital, or a birthing center within a hospital complex, … (Directive to Take Action)

—American Medical Association, Resolution 205: Home Deliveries

Note especially the second Whereas; the AMA has, more or less explicitly, called for government force against home-birthing mothers because recent cultural trends suggest that women might be persuaded to choose otherwise if allowed to choose freely. The birth freedom group The Big Push for Midwives has this to say:

WASHINGTON, D.C. (June 16, 2008) — Just in time for Father’s Day, at its annual meeting last weekend, the American Medical Association (AMA) adopted a resolution to introduce legislation outlawing home birth, and potentially making criminals of the mothers who choose home birth with the help of Certified Professional Midwives (CPMs) for their families.

It’s unclear what penalties the AMA will seek to impose on women who choose to give birth at home, either for religious, cultural or financial reasons—or just because they didn’t make it to the hospital in time, said Susan Jenkins, Legal Counsel for The Big Push for Midwives 2008 campaign. What we do know, however, is that any state that enacts such a law will immediately find itself in court, since a law dictating where a woman must give birth would be a clear violation of fundamental rights to privacy and other freedoms currently protected by the U.S. Constitution.

Until the AMA proposed Resolution 205 on Home Deliveries, no state had considered legislation forcing women to deliver their babies in the hospital or limiting the choice of birth setting. Instead, states have regulated the types of midwives that may legally provide care. Currently, 22 states already license and regulate CPMs, who specialize in out-of-hospital maternity care and have received extensive training to qualify as experts in the types of risk assessment and preventive care necessary for safe and high-quality care for women who choose give birth at home. Certified Nurse Midwives (CNMs), who are trained primarily as hospital-based providers, are licensed in all 50 states and the District of Columbia.

The resolution did not offer any science-based information for the AMA’s anti-midwife or anti-home birth position.

Maternity care is a multi-billion dollar industry in the United States, said Steff Hedenkamp, Communications Coordinator for The Big Push for Midwives. So it’s no surprise to see the AMA join the American College of Obstetricians and Gynecologists in its ongoing fight to corner the market and ensure that the only midwives able to practice legally are hospital-based midwives forced to practice under physician control. I will say, though, that I’m shocked to learn that the AMA is taking this turf battle to the next level by setting the stage for outlawing home birth itself—a direct attack on those families who choose home birth, who could be subject to criminal prosecution if the AMA has its way.

—Press release, The Big Push for Midwives (2008-06-16): Father Knows Best Meets Big Brother Is Watching: Physician Group Seeks to Outlaw Home Birth—Is Jail for Moms Next?

For what it’s worth, I suppose it’s true that if the emanations and penumbras of the Bill of Rights provide for a right of privacy from government interference in adult women’s decisions to use contraception or abort a first-trimester pregnancy, they probably also provide for a right of privacy from government interference in where a woman chooses to give birth. And if a state should pass any of the AMA’s contemptible model legislation and somebody takes up the issue in federal court, I hope that they’ll win.

But setting aside the politico-legal maneuvering for the moment, should anyone really even care what the Constitution says about it? If the Constitution does authorize this kind of tyrannical state intervention in women’s reproductive choices, then to hell with the Constitution. The important argument here is the moral one, about what simple justice demands. And taken from the standpoint of simple justice for women, it is absurd that I should even have to sit here and type out, in so many words, that a birth experience rightly belongs to the woman who labors on it—not to the AMA, not to a hospital, and not to the State.

Of course it does. Christ. To hell with any know-it-all blowhard busybody, with any association of know-it-all blowhard busybodies, or with any document that says otherwise.

See also:

• GT 2006-04-10: Bureaucratic rationality #4: State Ownership of the Means of Reproduction edition

You talk of simplification. But if you can simplify in one point, you can simplify in all. Instead of a million laws, a single law will suffice. What shall this law be? Do not to others what you would not they should do to you: do to others as you would they should do to you. That is the law and the prophets.

But it is evident that this is not a law; it is the elementary formula of justice, the rule of all transactions. Legislative simplification then leads us to the idea of contract, and consequently to the denial of authority. In fact, if there is but a single law, if it solves all the contradictions of society, if it is admitted and acceptedby everybody, it is sufficient for the social contract. In promulgating it you announce the end of government. What prevents you then from making this simplification at once?

—Pierre-Joseph Proudhon (1851), General Idea of the Revolution in the Nineteenth Century, Fourth Study, The Principle of Authority, § 2.2 ¶¶ 9–10.

Over at newsrack, lefty Thomas Nephew kindly took notice of GT 2008-05-16: Women and the Invisible Fist. Nephew wrote:

Via Jim Henley, who seems lately to be about metamorphosing your father’s (and/or mother’s) libertarianism into something more honest, multifaceted, and interesting. See also in this respect Henley’s Art of the Possible post, and the site as a whole: Liberals and libertarians on common ground… and otherwise. Henley says that the challenge is to correct spontaneous malign orders without the tool of state violence. I’m not sure that circle can be squared — some countervailing force is needed against spontaneous malign orders, and that force will need some agreed on norms of justice and enforcement. But I’m interested that libertarians are thinking about the challenge.

—Thomas Nephew (2008-05-24): Worth reading

That lead to some interesting discussion in the comments thread. I replied:

Thomas,

Thank you for the kind mention, and for the thoughtful comments.

You write: “Henley says that the challenge is to ‘correct spontaneous malign orders without the tool of state violence.’ I’m not sure that circle can be squared — some countervailing force is needed against spontaneous malign orders, and that force will need some agreed on norms of justice and enforcement”

There are a couple of different kinds of malign spontaneous orders that need to be differentiated here.

The first are malign undesigned orders that emerge, in part, from diffuse forms of violence — what I called “invisible fist” processes, as with the socio-cultural ripple effects of stranger-rape and other prevalent forms of violence against women.

The second are malign orders that don’t emerge from diffuse forms of violence, but rather from voluntary interactions. Unlike some libertarians, I believe that there are plenty of examples of these, too (for example, certain kinds of widespread credentialism and elitism that have emerged over the past century, and which have a big effect on education and on the workplace). These malign undesigned orders are often intimately connected with social orders that have coercive elements (for example, I’d say that certain pernicious forms of credentialism and managerialism, which contribute to classism and to the exploitation of working folks, have an awful lot to do with consistent government intervention on behalf of the managerial class and against the deskilled proletariat over the past century — cf. for examples my essay Scratching By at http://www.fee.org/publications/the-freeman/article.asp?aid=8204 or Kevin Carson’s Mutualist Blog at http://mutualist.blogspot.com/) — but, while intimately connected, are not identical with them (it’s likely that even without that government intervention they might live on through institutionalized cultural prejudices, unless deliberately confronted and undermined).

Libertarians and anarchists can consistently endorse the use of physical force as part of the response to the former (violent) sort of undesigned order; they can’t consistently endorse the use of physical force as part of the response to the latter (non-violent, but still ugly) sort of undesigned order.

In the second case, though, I ought to stress that not abandoning the use of force doesn’t mean abandoning the use of confrontation or hardball tactics—they just have to be carried out through tactics and institutions outside the political arena, the legal arena, or the regulatory bureaucracy. (On what should be done instead, I’m really an old Leftist at heart: I think people should form fighting unions and community organizations, build counter-institutions and mutual aid societies, use targeted and general strikes, boycotts, work-to-rule, hardball forms of social ostracism, stage sit-ins, etc. etc. etc. Forget about the government; we can do this ourselves.)

In the first case, the use of countervailing physical force in defense of self or others is defense, not aggression, so it need not offend any libertarian or anarchist sensibilities (unless one is a principled pacifist—which I’m not, and which most libertarians and anarchists aren’t either). You worry that that force will need some agreed on norms of justice and enforcement. I’m inclined to agree with that (although we might disagree on what the importance of agreement is here). But supposing that we do agree, I don’t think it tells against Jim’s point. Agreed-upon norms of justice and enforcement aren’t in and of themselves a problem for anarchism or libertarianism. The question is how the agreement on those norms is brought about: whether the agreement comes about by general acquiescence to privileged demands, or whether it comes about by means of a broad consensus among equals.

Government ensures agreement upon these norms by erecting privileged institutions which are legally empowered to force everyone else to acquiesce to the norms they propound and act on.

Anarchy, on the other hand, doesn’t mean chaos or the break-up of any agreed-upon norms of justice or enforcement. (At least, that’s not what anarchy means in the mouths of anarchists who use the term.) What it does mean is that any agreement upon those norms should be brought about through the free interactions among equals and by the emergence of a broad social consensus.

Further, anarchists generally believe that that kind of consensus can rightfully be acted on by any free association that puts reasonable norms for justice and enforcement into practice — rather than being limited to a privileged class of government-approved cops, judges, etc. The idea here being that the justice of judgments and the righteousness of enforcement are things that ought to be assessed on the merits of the conduct itself, not according to the identity or the political status of the judge or the enforcer. That is to say, that it should be considered as a matter to be resolved by appeals to the content of the norms, rather than to the political status and prerogatives of the body propounding them.

So the ideal here is not to abolish any general norms of justice or enforcement, but rather to keep the ideal of consensus on norms while detaching the crafting of the consensus from the imposition of exclusive government-granted prerogatives.

Does that help clarify, or does it muddify?

—Rad Geek (2008-06-01): Comments on Worth reading

Thomas replied with some comments on professionalization and specialization in the law, which are the main thing that I want to focus on today. In part because the issue is interesting and important in itself; in part also because the way that police forces and the legal system operate today is, in many different ways, ideologically dependent on the idea that we need to turn a great deal of our lives and freedom over to a cadre of trained, specialized legal professionals for our own protection and in order to ensure justice and social peace. He wrote:

Thank you very much for your comment — it’s really an excellent post in its own right. I think I understand what you’re driving at; I’m trying to decide what I think about it, and that takes me longer than maybe it should. My thoughts so far:

1. I suppose I have a sneaking agreement that there’s too much that’s privileged and mysterious about judges, lawyers, and law enforcement. But I also think there’s specialization and craft in these pursuits, just as there is in, say, cabinetmaking or watchmaking. Those are pursuits I leave to others; maybe so is law enforcement or judging. Even just a policeman has to master tons of information and training — knowing the law, when to wait, when to intervene, how to gather evidence, how to avoid violating rights while pushing back against spontaneous malign orders.

2. But I also see the difficulty with that analogy: unlike with the cabinet or watchmaking trades, I recognize I have a citizen’s responsibility in understanding my political system and helping point it in the right direction, to the best of my puny abilities.

—Thomas Nephew (2008-06-02): Comments on Worth reading

By way of reply, I argued that the need for specialized expertise and training (1) isn’t an argument for monopoly, and also (2) is itself a function of the expansiveness and authoritarianism of the State:

Thomas,

Thank you for your kind words.

You write: “But I also think there’s specialization and craft in these pursuits, just as there is in, say, cabinetmaking or watchmaking.”

Probably so, although I’m inclined to think that there is, or ought to be, much LESS specialization and craft than the professionalized government enforcers and judges would have you believe. To be sure, the government laws that are on the books today are tremendously complicated and require years of specialized training and practice to even begin to get a good grip on a relatively small specialty. But I think that that’s precisely because the people who make and use the laws have a political and a professional interest in making those laws extremely complicated, and in having them cover an extremely wide and not very well defined scope of human affairs. Libertarians and anarchists believe that regularized enforcement should cover a much more precisely delimited and a much, much smaller field than it currently does, so to some extent the problem vanishes along with the laws that libertarians and anarchists believe ought to be abolished.

For example, labor relations law as it presently exists is extremely complicated — it requires making a lot of very fine distinctions, balancing many different prerogatives granted to and regulatory limitations imposed upon unions, individual employees, and employers, etc. etc. etc. It takes a lot to even understand the basics of the situation, and the tricky details of a concrete case often can’t even be resolved without hashing out the issues in bureaucratic negotiations through the NLRB or in federal court. But the complexity of the legal situation is clearly a function of its being channeled through the federal regulatory bureaucracy. That situation clearly benefits NLRB bureaucrats and professional labor lawyers; it’s much less clear that it benefits the rank-and-file workers for whose benefit this sort of thing was supposedly constructed, but who are substantially deprived of any real control over the process by putting so much of it into the hands of professional legal experts. If agreed-upon norms of justice and enforcement were (as anarchists believe that they should be) limited only to the issue of protecting innocent people from being attacked by physical force, or vindicating their rights after the fact if they should be attacked — with all the rest to be handled by free contracts between the individual parties, unregimented by a government bureaucracy, and by whatever forms of nonviolent leverage and activism that the creativity of organized workers and a fighting union might devise — then it’s much less clear what need for specialization or professionalization there would be. (There might still be a lot of need for impartial arbitrators; but impartiality is distinct from technical expertise, and is something you can get by finding any third party of good will and good sense for the duration of the arbitration; it doesn’t require a distinct class of professional arbitrators.)

Generalizing from that case, I agree with Lysander Spooner that if the realm of enforcement were strictly limited to questions of interpersonal justice, then, quote:

No objection can be made to these voluntary associations upon the ground that they would lack that knowledge of justice, as a science, which would be necessary to enable them to maintain justice, and themselves avoid doing injustice. Honesty, justice, natural law, is usually a very plain and simple matter, easily understood by common minds. Those who desire to know what it is, in any particular case, seldom have to go far to find it. It is true, it must be learned, like any other science. But it is also true that it is very easily learned. Although as illimitable in its applications as the infinite relations and dealings of men with each other, it is, nevertheless, made up of a few simple elementary principles, of the truth and justice of which every ordinary mind has an almost intuitive perception. And almost all men have the same perceptions of what constitutes justice, or of what justice requires, when they understand alike the facts from which their inferences are to be drawn.

Men living in contact with each other, and having intercourse together, CANNOT AVOID learning natural law to a very great extent, even if they would. The dealing of men with men, their separate possessions and their individual wants, and the disposition of every man to demand, and insist upon, whatever he believes to be his due, and to resent and resist all invasions of what he believes to be his rights, are continually forcing upon their minds the questions, Is this act just? or is it unjust? Is this thing mine? or is it his? And these are questions of natural law; questions which, in regard to the great mass of cases, are answered alike by the human mind everywhere.”

—Lysander Spooner (1882), Natural Law, or the Science of Justice, section 4.

And I would follow up your second point by urging that it is dangerous, and to some degree irresponsible, to adopt large-scale systems of law and practice that practically require ordinary citizens to abandon the questions of political and interpersonal justice to a privileged, insular, and easily corrupted class of specialists.

But, secondly, I would also argue, further, that even if the requirements of justice ARE complicated enough in some particular case that it requires some specialized training and expertise to sort them out, or where correctly applying and implementing them requires specialized training and expertise in something else (e.g., for enforcers, training and expertise in de-escalating potentially violent situations may be a form of specialization well worth having), that seems to me like an argument for leaving the field open to many specialists, who can offer their services to anyone who is interested in retaining them (e.g. many private associations for arbitration and/or defense, which people go to on the basis of choice rather than being forced to go to one in particular on the basis of fixed territorial monopolies). Not so much an argument for limiting the field to a single fixed, institutionalized class of specialists (e.g. a government court or a government police force with rigidly and exclusively defined territorial or topical jurisdictions).

The first (non-monopolistic) solution really would make the business of law a skilled trade or profession, much like watchmaking or medicine, where people go to acknowledged experts freely, but aren’t forced to choose one particular expert on the basis of political status, and can choose another, on the basis of their own considered judgment and comfort levels, or for that matter can still choose none at all, if they decide to hazard the risks and trouble of doing it for themselves.

The second, monopolistic solution doesn’t make the business of law so much like skilled trades and professions, but rather like a feudal or command economy, in which people are assigned particular experts and forced to turn matters over to that particular expert rather than another, on the basis of the political status of the experts rather than on the basis of broadly and consensually acknowledged expertise. It’s that which, as an anarchist, I really object to.

Does that help? What do you think?

—Rad Geek (2008-06-02): Comments on Worth reading

In reply, Thomas raised some fairly common counter-objections and worries, especially about the dangers supposedly posed by the devolution of policing from public control to private defense — or, to spin it another way, from government to civil society.

But the complexity of the legal situation is clearly a function of its being channeled through the federal regulatory bureaucracy. That situation clearly benefits NLRB bureaucrats and professional labor lawyers; it’s much less clear that it benefits the rank-and-file workers for whose benefit this sort of thing was supposedly constructed, but who are substantially deprived of any real control over the process by putting so much of it into the hands of professional legal experts.

This seems like blaming the chickens for the fox’s raid on the chicken coop. At least lately, the situation you refer to clearly benefits management in most NLRB disputes. I’d put down most of what’s wrong with NLRB to its being an easily subverted agency, most of the blame for that to corporations achieving via the back door of a compliant board what they couldn’t via the statutes authorizing the NRLB in the first place … and most of what’s wrong with those statutes to earlier corporate influence in making things like unionization far too difficult in the first place. Rightly administered and empowered, NLRB ought to be a counterweight to moneyed and propertied interests that have no interest in worker’s rights. The fact that it isn’t rightly administered and empowered seems to me a measure of the strength of the forces arrayed against it, not of the weakness of the idea of an NLRB itself.

The first (non-monopolistic) solution really would make the business of law a skilled trade or profession, much like watchmaking or medicine, where people go to acknowledged experts freely, but aren’t forced to choose one particular expert on the basis of political status, and can choose another, on the basis of their own considered judgment and comfort levels, or for that matter can still choose none at all, if they decide to hazard the risks and trouble of doing it for themselves.

At least for legal representation, that — in theory — is already the case, isn’t it? The problem is when the innocent can’t afford a Clarence Darrow, a Johnny Cochrane, or an F Lee Bailey to get them off but the guilty can.

I don’t see how to bid out for police functions, though, without that turning into yet another part of society baldly favoring the rich and privileged over the poor and disenfranchised. While that may be too much the case even with a police force as public monopoly, I think it would surely be worse in a “Deadwood“-type services-to-the-highest-bidder world. But maybe I’m misunderstanding you in how police functions ideally ought to work.

—Thomas Nephew (2008-06-02): Comments on Worth reading

To which I made some counter-counter-objections, and raised what I think ought to be some obvious questions:

Thomas,

You write: “This seems like blaming the chickens for the fox’s raid on the chicken coop.”

I’m not sure what you mean. I don’t blame rank-and-file workers for the way the NLRB functions. I blame the politicos, the “Progressive” bosses, and the conservative union bosses who pushed to create the system. (Radical unions, like the I.W.W., rightly opposed the system as an effort to promote conservative unionism and to capture and domesticate unions through a combination of government patronage and government regulation.)

You write: “Rightly administered and empowered, NLRB ought to be a counterweight to moneyed and propertied interests that have no interest in worker’s rights.”

Two things.

First, I have no confidence in anyone’s ability to craft a regulatory agency that successfully resists being substantially captured by the interests that it regulates. I can’t think of any example in the history of American regulatory bodies where this has been pulled off for any length of time, and I don’t think it should be particularly surprising that, since political entities respond to political incentives, they will tend to be administered in a way that systematically benefits the wealthiest and most politically-connected people.

Second, even if the NLRB were ideally administered, the system is designed from the ground up as a means of constraining union demands and restricting unions to the most conservative and least effectual methods. (Thus, the Taft-Hartley bans on secondary strikes, secondary boycotts, union hiring halls, wildcat strikes, etc. etc. etc.; thus the emphasis on a heavily regulated process of collective bargaining, controlled by very elaborate legal requirements that are often next to impossible for rank-and-file workers to understand, in place of extremely effective and very simple to understand tactics, like work-to-rule and other forms of direct action in the workplace.)

You write: “At least for legal representation, that — in theory — is already the case, isn’t it?”

Well, not entirely — you can choose one lawyer rather than another, as long as you can afford their fees, but you can’t choose anyone as your advocate except those who have been officially approved for membership in the government-created and government-regulated lawyer’s guild. But lawyers weren’t the “experts” I was referring to; I was referring to the fact that the government forces people to take legal disputes before specific judges (with jurisdiction fixed by the issue in dispute and by accidents of geography), and excludes other no-less qualified and impartial experts from taking up the dispute simply because the privileged judge has a particular political status and the other would-be arbitrator doesn’t. If we are really talking about a form of specialized expertise here, like that of the watchmaker or of the doctor, then anyone should be able to take the case, not just a judge deemed to have that topic and that location within his bailiwick by the government.

You write: “I don’t see how to bid out for police functions, though, without that turning into yet another part of society baldly favoring the rich and privileged over the poor and disenfranchised.”

Well, I don’t know. Isn’t that already how government policing works?

Tax funding doesn’t prevent government cops from treating poor people pretty shitty, or from acting as an instrument of class power. In fact, the fact that poor neighborhoods have no real control over who provides policing in their neighborhoods, and no way of cutting off their portion of the funding for neglectful or abusive police forces, is part and parcel of the problem.

Anyway, I’m not sure what you mean by bid out for police functions. If you mean the government outsourcing policing to private security corporations (Wackenhut, Blackwater, whatever), I’m not for that, and I don’t consider it an example of free market self-defense. I think that all government involvement in policing (whether in-sourced or out-sourced) should be abolished.

If you mean individual people choosing to cover the costs of policing, and having a choice about who, if anyone, they get police services from, then I don’t think there’s any guarantee that the result will be (even more) plutocratic policing. It’s true that, if all policing were based on free association and not on government monopoly, there might well be some policing that is done by private goon squads for hire, and those might have an incentive to favor the rich over the poor. But (1) again, I’m not convinced that they’d have more of an incentive to do so than government cops already have; and (2) there are lots of other ways of using free association to get self-defense and neighborhood defense done. For example, the Black Panthers and the Young Lords organized historically oppressed people to arm themselves, and to patrol and defend their own neighborhoods (including defending them from the predation of abusive white cops). In any case, where there are many, competing and countervailing associations that serve defensive functions, if one association becomes especially neglectful, or, worse, predatory, against marginalized people, other associations can move in to compete, or new associations can be formed, to check the first. But when policing is monopolized by a single institution, there is no real reason for them to try to please anybody outside of their firmest base of support (in the case of political monopolies, that means the ruling class—as is confirmed by how police departments already operate today). If they don’t please marginalized people, why would they care? They stay paid anyway, and there’s no countervailing force to hold them to account for their abusiveness.

My own view is that the need for any form of professional policing at all would be dramatically less in a free society than it is in the present day. (For example, in a free society there would be no drug laws, vice laws, or border laws, and thus no narcs, no vice cops, and no La Migra. There would also be much less entrenched urban poverty, because — for reasons I discuss in the Freeman article — ghettoized urban poverty as we know it is largely a function of interlocking government interventions against poor people’s survival strategies and attemtps to flourish through creative hustling; hence much less economically motivated crime, and also much less of certain kinds of antisocial behavior. So, again, this is, to a great extent, a problem that vanishes along with the needless government laws and endless government “wars” on consensual behavior, which I already favor abolishing. But, even if the demand for specialized policing were to remain just as high as it is today, I still think that it is far, far better to have a situation in which people are free to withdraw their support from abusive agencies, and where there are many acknowledged experts to keep each other in check, than a situation in which people are forced to pay for their own abuse, and in which cops are never held to account for wrongdoing by any means other than “handling it internally” and issuing the occasional “Oops, our bad”.

—Rad Geek (2008-06-01): Comments on Worth reading

It’s a fairly wide-ranging discussion, and you ought to read the whole thing if you want to follow up on some of the sub-threads about, for example, organizing, class, tactics, immigration, and so on. For now, I want to highlight the discussion about specialization and professionalization in policing. On that note, I want to stress that it’s precisely those ideals in lawyering and law enforcement that lead directly to things like this, and this, and this. And, less directly but very quickly, gets us from those to this and this. And that from there it doesn’t take a very slippery slope to get down to this and this and this.

And the perceived need for specialization, professionalization, and expertise is a need which only exists because of the very system of law and enforcement it is invoked to justify. On a related note, consider this video (thanks to Jeremy at Social Memory Complex 2008-06-04: Don’t talk to the police), which provides both excellent legal advice, from the standpoint of simple self-interest, and some solid analysis of our present predicament how ordinary folks like you and me ought to relate to government cops under these conditions.

Without that system, without its politically-fabricated complexity, and without the tremendous latitude deliberately created by that complexity for government police to exercise arbitrary power in stopping, detaining, fining, and arresting suspect people — the 10,000 or more crimes that government law has fabricated, the crimes so numerous that not even the government itself can count them all anymore, and so potentially ruinous for anyone in trouble with the law that you have little choice but to regard anyone threatening to exercise their specialization and craft in the law as little more than a dangerous soldier in a hostile, occupying force — without all that, I say, there would be no basis, no need, and no call for that complexity or that arbitrary authority, or for the privileged, professionalized retinue of lawyers and enforcers who are expected today to go around navigating that complexity and exercising that arbitrary authority, in order to solve the very problems that the same complexity and arbitrary authority created in the first place.

Further reading:

• GT 2007-11-03: Opinion Columns of the Libertarian Left