The Right to Resist Illegal Searches, Seizures and Arrests

Sometimes discretion is the better valor. Sometimes we cooperate with an authority figure or an armed robber or a bully in order to avoid the immediate bodily injury that would ensue if we didn't. That's a choice that every person has the right to make based on the circumstances, and it is not a good idea to judge other people on their failure to put up a fight when they had every right to. Not everybody is equally as brave. Not everybody is equally as good at martial arts. Not everybody can resist. And besides, it is wrong to blame the victim. But what about the other side of the coin? What if someone does stand up to the bully, the robber or the authority figure acting outside the law? Shouldn't we have that right? And shouldn't the law reviewing the case after the fact come down on the side of the resister using force to protect his or her constitutional rights? If we are not allowed to use force and arms to protect our rights, what good are they, anyway?

In the wake of the Sandra Bland incident, Lew Rockwell had the following "legal" advice to give:

https://www.lewrockwell.com/2015/07/steve-silverman/be-prepared-to-flex-your-rights/

The advice boils down to this: you should not consent to an illegal search, you should voice your lack of consent clearly, but you should also not resist the search. This is about the same as telling a rape victim that she should loudly proclaim her lack of consent while passively submitting to a rape.

One of the reasons this advice is given is in order to later help exclude evidence found during the search.

If police search your car and find illegal items despite your refusal, your lawyer can file a motion to suppress — or throw out — the evidence in court. If the judge agrees that the officer’s search violated the 4th Amendment’s probable cause requirements, she’ll grant the motion. Unless the prosecution has other evidence, your charges would be dismissed.

But what if your objection to the illegal search has nothing to do with any contraband in your possession or evidence of a crime? What if you really have nothing to hide, except that you want your right to be free from illegal searches and seizures upheld? What if you're shy, and you don't want other people to see your stuff? What if being searched makes you feel violated?

The rules set down in the constitution and in the bill of rights were not meant to be some kind of technicality to get criminals off the hook in a trial. They were not meant as a legal trick to nullify bad drug laws. They were supposed to help citizens feel secure in their persons and their property . They were meant to guarantee that Americans would not be bullied and harassed in their own homes or their own turf by their government, in the way that they had been before by the redcoats. That was the purpose. Unless these rights can be protected by force of arms, they don't really exist.

I dealt with this issue in the wake of the Le Brave case in Theodosia and the Pirates: The War Against Spain. 

The result of many an encounter between government forces and ordinary citizens is that the moment the government decides to violate rights, any resistance is deemed a cause for arrest and prosecution. In this way, even if there were no original reasons for arrest, justification can always be trumped up.

The same sort of reasoning was used in the Burr case, when even though Burr and his men never levied war on the United States, and never intended so to do, resisting arrest was seen as levying war against the government. Justice Marshall did not ever rule on this aspect of the case, because he merely found that since Burr was not there when his men were resisting arrest, he was not responsible for their actions. This left the way open for every atrocity since which was based on resistance to tyranny as an act of war against the state.

When the ATF agents climbed in through the window at Mt. Carmel, they had a sealed warrant that they did not bother to share with the Branch Davidians. The Davidians had every right to fire at strangers breaking into their home. But they were deemed to be in the wrong, because you are not allowed to resist the government, even if you don't know it's the government.

That is what is wrong with our constitutional rights at the moment -- that they exist only on paper and not in reality. With mottos like those of Lew Rockwell -- anti-state, anti-war, pro-market -- we can never win our rights back, Passive capitulation is not the answer.

Zora Nadrimal's Half Brothers

The acorn does not fall far from the oak, they say. But Jean Laffite's father was a tanner. It is true that his brother Alexandre preceded him in the privateering profession. But was Alexandre a self-taught sailor -- a pioneer in this new trade? Hardly. Though their father was not a sailor, Alexandre, Pierre and Jean had family members who were ready to teach them the ropes. They were none other than their grandmother's three half-brothers, Reyne, Felix and Clemente,

Excerpt from t he Journal of Jean Laffite
"...under the orders of Uncle Reyne, Felix and Clemente who were the half-brothers of Grandmother"

Was Jean Laffite a self-made man? Yes and No. He was undoubtedly an individual who made much of the opportunities presented to him and who achieved a great deal on his own. But he was also part of a family, and he benefited from the supportive upbringing of his grandmother and the broad horizons offered by her kinsmen.

                                           Excerpt from Theodosia and the Pirates: The Battle Against Britain

It takes many generations in a family before a spark of talent can flicker into a flame. Aaron Burr wanted to be a sailor, too. He ran away from home at age ten and signed on as a cabin boy. But his Uncle Timothy, unfortunately, was not a sailor himself, and he would not allow the orphaned boy under his charge to pursue a path that was not part of the family tradition. So Aaron was sent off to Princeton to study the classics, like his father and grandfather before him, And Aaron Burr, despite his adventurous streak, excelled in his studies, because he did indeed have the ability to parse classical languages programmed into his genes. At first Burr applied himself to his studies until he looked around and noticed that nobody else was doing half as well as he was, and then he relaxed and proceeded to enjoy the rest of his college years.

"You didn't build that." is a phrase that is bandied about by people who think it is unfair that we each have an inheritance and a family legacy and talents that are nurtured in us by relatives who appreciate what we can do, because they can do that themselves, too. But just because you have a foundation built by your parents, grandparents and countless generations before you, that does not mean you have built nothing yourself. Nor does it mean that you should be deprived of whatever advantages you were given at birth in an attempt to level the playing field for everybody else.

Everybody else also has parents, grandparents and nameless ancestors, too. We each come with something built in, and something to pass on to the generations to come.

Why You Can't Just Set Men Free

When I first read the Journal of Jean Laffite, I came across a passage that had me baffled. In it, Jean described how he and Pierre arrived in Mobile with a cargo of slaves that they had plundered from the Spanish, but the American customs tax was too high, so they could not unload and sell the slaves.  They turned back with their cargo in the direction of New Orleans, but could not sell them there, either,  and on the way they met a fishermen and gave him the slaves free of charge. What they could not sell, they gave away. That was when the Laffites realized they would need to find a base of operation in the New Orleans area where they would not have to go through American customs. Luckily, they found Grande Terre and Grande Isle.

The Passage about Giving Slaves to a Fisherman

"In November of 1804 we embarked for Cuba to capture our seventeenth vessel with a cargo of slaves. We set off for Mobile to sell the slaves, a very poor market, and lots of fees for right of entry of the Customs authority. We embarked for New Orleans and also had very little luck with the slaves. We took the boats back out to ocean in order to find a base to discharge the cargo. We found Grande Terre and Grande Isle, and we gave our slaves to a fisherman."

Why couldn't they simply have set the slaves free? Why did they have to give those people away, like a litter of kittens that had no resale value? Jean Laffite did not explain this, because to him it went without saying. The slaves had to go to a good home. They needed someone who would provide for them. They could not just be abandoned hungry and penniless to wander around like strays.

I later dramatized this predicament in a scene from Theodosia and the Pirates; The Battle Against Britain.

Excerpt from Theodosia and the Pirates: The Battle Against Britain

It is easy to become enslaved. Sometimes it happens suddenly. Sometimes it happens gradually. But you cannot expect to become free all at once. Biblical examples tell us that it requires at least forty years in the desert. Forty years is the time it used to take for most of the previous generation that had been born in slavery to die, and for those who were born free to take over the positions of leadership. In fact, chimpanzees, just like indigenous humans, tend to live about forty years in the wild, though much longer in captivity.

Photo Credit: The Daily Mail, UK
Chimpanzeessin Liberia, abandoned by their captors, beg for a handout

I recently read a news story about how the New York Blood Bank set up a virus testing laboratory in Liberia in 1974. They captured wild chimpanzees in order to run medical experiments on them. The captured chimpanzees lived on six little islands and were fed by their captors. They became totally dependent, even though they had once lived free. In 2005 the New York Blood Bank shut down their operation in Liberia, but they promised to care for the chimpanzees they had captured. The funds ran out last year. Now the chimpanzees are living on charity. Even though they are ostensibly free, they have become totally dependent on humans.

You can read the original news story here:

http://www.dailymail.co.uk/news/article-3173127/The-heartbreaking-battle-save-66-chimpanzees-baby-left-starve-African-island-medical-firm-abandoned-finished-experimenting-them.html

When the Zionists settled in Palestine at the turn of the previous century, under the Ottoman Rule and later the British Mandate, they were the desert generation. When Israel acquired its independence in 1948, they were ready to be self-governing, and they had the ability to fight for their own freedom. Unfortunately, the country was then flooded with holocaust survivors who had not gone through the desert culling. They arrived with the values of dependency built in. That is why today, just like the chimpanzees in Liberia, Israel asks for handouts from the US.

The essence of slavery is not whips or chains or cages. You can tear off the manacles and open the cage door wide, but if the spirit is enslaved, the man is not free. Slavery is abject dependency.  The example of the liberated Liberian chimpanzees shows this very clearly.

The Declaration of Independence Through Theodosia's Eyes

The Declaration of Independence is one of the founding documents of the American republic. But it is also Thomas Jefferson's lasting legacy as an individual. Despite the many signatures at the bottom of the document, everyone knows that this is Jefferson's literary masterpiece.

Jean Laffite was a very big fan of Thomas Jefferson. Theodosia Burr despised him. Their contrasting views of the man and of his words and deeds are a big part of the conflict in Theodosia and the Pirates. 

When Theodosia and Jean first meet, the following exchange sets the stage for all other encounters that concern the virtue of Thomas Jefferson.

This fourth of July, if you are looking for a fresh new perspective on Jefferson's legacy and his literary oeuvre, the Declaration of Independence, you might want to consider Theodosia and the Pirates. It deals with issues of high interest to American patriots.

The Return of Rationing

Just as it was in Weihsien Internment Camp for enemy aliens, and in the United States under FDR during WWII, it seems we are arriving at an era of rationing again. There seems to be a mysterious shortage of eggs in certain parts of the United States.

http://www.wfaa.com/story/news/nation/2015/05/31/whataburger-breakfast-hours-egg-shortage/28287737/

Whataburger can serve breakfast only while supplies last, due to an egg shortage.

Now, eggs come from chickens, so a shortage of eggs implies a shortage of chickens. In most cases such shortages are government induced and are not inherent in the circumstances. People who raise their own chickens usually have a surplus of eggs, but are often prevented from selling them to other people who want them.

The current egg shortage is said to be due to an outbreak of avian flu among the nation's biggest producer of eggs in Iowa.

http://article.wn.com/view/2015/05/22/Egg_prices_surge_to_record_on_shortage_caused_by_bird_flu_1/

But the idea that egg production has to be so centralized that no other source of eggs could compete has something to do with the fact that small producers are not allowed to sell directly to the consumer without undergoing inspection and licensing.

http://smallfarm.about.com/od/chickens/a/How-To-Sell-Chicken-Eggs.htm

There are many movements afoot to discourage the eating of eggs and even buying them from one's neighbors.

http://www.theveganwoman.com/is-it-ethical-to-eat-eggs-from-home-grown-chickens/

And while many of these laws are local and vary from state to state, soon the the Federal dietary guidelines are going to contain a provision that food consumed has to be sustainable from a global standpoint.

http://health.gov/dietaryguidelines/2015-scientific-report/10-chapter-5

From the Government's Committee on Updating the Guidelines
http://health.gov/dietaryguidelines/2015-scientific-report/img/Figure-D51.png

"Support Universal Food Security" is one of the values the government is espousing, That is tantamount to saying that free market principles go out the window, and food will be rationed so as to be available equally to all, even people overseas.

This policy will not enhance biodiversity, even though that is another of their goals. Centralized planning is never good for biodiversity. 

Was the 16th Amendment Ever Ratified?

Innovations in taxation are usually justified by war, as emergency measures,  but once established, it is very hard to get rid of them. There was a "temporary" income tax during the Civil War. The Revenue Act of 1861 was explicitly  set to expire in 1866. But before it did, it was replaced by the Revenue Act of 1862, which was a progressive tax. This was followed by the Revenue Act of 1864 that did not expire until 1873. It was replaced by the Wilson-Gorman Act of 1894, which also included an income tax. This was the first peacetime income tax in the United States.

Cartoon from Harpers Source: Wikimedia

Then the 16th amendment was passed shortly before the first World War.

Those who proposed the 16th amendment to the United States constitution may have done so because they hoped it would not pass. It may have been introduced as a way to bypass direct legislation on the subject, and it was believed that such an amendment would be defeated in the more conservative states. But they were hoist by their own petard.

http://www.latterdayconservative.com/articles/history-of-the-16th-amendment/

There are convincing arguments to the effect that the 16th amendment to the United States constitution was not ever legally ratified, but such arguments are only heeded now by a small minority, and everyone who has any power to change things consider them part of the lunatic fringe.

Here is a link to an article that discusses the facts:

http://givemeliberty.org/features/taxes/notratified.htm

To learn the established responses to these arguments and the way the government disposes of these issues, we have only to read the following wikipedia article.

https://en.wikipedia.org/wiki/Tax_protester_Sixteenth_Amendment_arguments

At this point it is clear that it is not going to be possible to overcome the the machinery that is currently in place to enforce the income tax with legal arguments alone. It is so well established that whatever irregularity there may have been in its passage no longer has any practical importance.  Any attempt to roll back the clock on government encroachment  that is based merely on words and not actions will be ineffective.

Memorial Day and Altruism

For people who have lost no one in battle, Memorial Day can be a time of picnics, barbecues and summer fun. For those who have lost a loved one to war, it can be a time to visit the graveyard and to mourn. It can even be a time to feel angry and let down and to ask: Why me? Why my son, my brother, my husband or my father? Why did he have to die for everyone? Why couldn't it have been someone else?

When I wrote the article linked below, I was musing about the different attitude that Israeli popular songs have toward the death of a soldier in battle compared to American songs.

http://www.pubwages.com/35/where-the-personal-and-the-public-intersect-memorial-day-musings

In the old fashioned Israeli song, the mother who lost a son -- a son that she raised for the express purpose of keeping her people free -- is saluted by another soldier who promises to treat her like a mother and to be a son to her instead of the son she lost.

Do mothers really raise sons just to keep their people free? And how could another soldier take her son's place -- ever?  There is a kind of unrealistic romanticism to this scenario, even though, I'll admit, I am attracted to it. It is in that spirit that I told the story of the relationship between Jean Laffite and his grandmother in my two Theodosia and the Pirates books. At the same time, I thought that the American consciousness was sorely lacking in this kind of patriotism, and I could not think of one single patriotic song that explained how a mother was prepared to sacrifice her son for the greater good of her nation. And while Israeli patriotic music is full of courageous grandmothers, I cannot think of a single American song singing the praises of a grandmother who taught her grandson how to fight.

But more recently, after attending Republican political events as well as high school concerts in which all the veterans are asked to stand for certain songs, I realized that in the American public consciousness, the blood sacrifice of Christ on the Cross is the leading metaphor for the soldier's death in battle. Instead of a valiant warrior, fighting to protect the womenfolk in his family, the soldier is seen as a hapless sacrifice for the sins of someone else. This metaphor can be clearly read in these lines from The Battle Hymn of the Republic.

In the beauty of the lilies Christ was born across the sea,

With a glory in His bosom that transfigures you and me.

As He died to make men holy, let us die to make men free

While God is marching on.

 While the original lyrics to this song were a religious hymn that was later filked to great effect as   "John Brown's Body Lies a Mouldering in the Grave", the Battle Hymn of the Republic by Julia Ward Howe is a song that people still sing today. Howe's  lyrics  make explicit the analogy between the  sacrifice on the cross of an innocent and soldiers sacrificing for others and not fighting for their own interests. For many Americans, this view of sacrifice sanctifies war. Such people, whether religious or not, are strongly invested in altruism.

The Civil War, we are taught, was not started in order to settle the economic conflict between the industrial North and the agrarian South, but was fought to make free a third party to the dispute, the slaves who were emancipated. From there, every war the United States has been involved in was never a war simply to safeguard American interests at home or abroad. It had to have some sort of "humanitarian" component like making the world safe for democracy, averting genocide in a distant land or helping those less fortunate than ourselves. For someone to fight just to secure his own financial interests and to protect his own family would be scandalous.

As cloying and unreal as the song about the Israeli mother is in "On the Plains of Negev", there is a degree of realism in it about why people fight wars that is absent in the current accepted take on "Just War" in both conservative and liberal circles in the United States.

Enter Yaron Brook of the Ayn Rand Institute.  Today, for Memorial Day, he gave a talk about how serving in the military should not be about self-sacrifice. It should be selfish. It should be in the interest of securing your own freedom, rather than that of somebody else.

If I didn't know what sorts of things Yaron Brook was reacting against, and if I did not understand his context, I would have thought what he was saying was entirely trivial. Of course, soldiers fight to defend their country and have something to gain when they win: namely their own freedom and the well-being of their families. Of course, countries should pursue their own interests when waging war. Of course, the Commander in Chief should not sacrifice soldiers under his command to help complete strangers in other countries to secure floating abstractions such as "freedom" or "democracy" by overthrowing their "bad" leaders and installing "good" puppet governments, instead. If it does not serve our interests, we should not be spending American lives and taxpayer funding on a war.

In this, I am in complete agreement with Yaron Brook, Ayn Rand's current representative on earth. (Leonard Peikoff, Rand's intellectual heir,  has approved Yaron Brook as the new Objectivist Caliph.)

Here's where it gets a little silly. If  being in favor of selfishness merely means that you should support the armed forces only if they actually are working to protect us, you might as well say that you are in favor of public funding for roads, but only if the money is actually used to build roads that you can drive on. Or you could say that you are in favor of public education, but only if they teach true facts in school using competent teachers. Or you could say you are in favor of Obamacare, but only if it helps everyone get good health insurance. This is, after all, the stance of most people on the right and left who want to keep the status quo while rooting out "corruption." They have a pie in a sky view of what government entities should do for us, but no idea how to make sure they actually do it. The mechanisms are a black box.

The basic principle behind the free market is that no business works optimally unless those who have a stake in the matter are the only ones who get to choose. That's true of schools, roads, health insurance and navies.  A free market should determine which ships and fighter planes are built, because any other way to do it results in a huge waste of resources under government contracts. And a free market should train tomorrow's warriors, because the best training for war is engaging in war all the time, which is what privateers do, at their own expense and without taxpayer funding.

Yaron Brook should read this article to understand that there is more to solving the war problem than just preaching to people they should be more selfish.

http://www.pubwages.com/55/who-should-pay-for-waging-war


Ayn Rand's contribution to philosophy should not be dumbed down to the point where the virtue of selfishness just means that government agencies should be told to function efficiently so that taxpayers will get good services for their money. It needs to be understood in the spirit in which it was intended: that the free market, by recruiting people to do what they profit by the most, gives the best services possible for the lowest price.

Where Ayn Rand went wrong in describing her fictional pirate, Ragnar Danneskjold, was in saying that he robbed the government and returned 100% of what he got to the people it was taken from. That is not economically feasible. How did he pay his sailors? How did he finance his ship? How did he get the money to support his beautiful wife? Of course, he had to keep some of the loot to himself. The pirate that Rand described was an altruist!

That's why Jean Laffite is a much better model. He looted our enemies and sold us the loot at a discount, while making a fortune for himself all the while. Now that is what I call a win/win situation.  And every sailor under him served for love of country and for the glory -- but also for a percentage of the take! Now there is the virtue of selfishness as it applies to war and patriotism.

There is no shame in making a profit. It is good to be selfish in the service of our country. (I wish Trumpeldor had said that, instead!)  But we still haven't seen Ayn Rand's successor make that connection between free market economics and a strong defense.