Subjective Empiricism 1

At the core, so far, I am left with three basic interrelated ideas, impressions, or realizations about what is real and meaningful, from which all else proceeds:

(1) Consciousness.  I am.  This is axiomatic and primal.  Rationalize, mythicize, romanticize, or criticize as one may, this is the essential fact, that I exist; that I experience; that I am a consciousness.  What I am, what it means, whether or to what extent my consciousness is conscious or unconscious or subconscious, everything else is secondary because none of it assails the fact I am here experiencing this moment.

(2) Experience.  To be a consciousness, to have a point of attention, is to attend and to experience.  Whether I am dreaming my reality, or reality is a dream; whether the world is a stage or an illusion or the only thing; whether time is real or consciousness is instantaneous; regardless of any other conceit or doubt I may entertain, the fact and fundamental point is, I am surely experiencing.

(3) Conscience.  My consciousness is active, not passive; and universally creates or perceives or communicates or echoes meaning.  Whether I listen to it or try to ignore it, whether I consider my conscience (or conclude it is, or can discern whether it is) right or wrong, whether and to what extent I am rightly skeptical of it or hang desperately onto it, to be conscious is to be in the house, with the potential and powers and responsibilities of perception, reception, transmission, initiation, decision, attribution, meaning, morality, error, and impact.


What, if anything, proceeds from these three principles can generate (and has already generated) any number of posts on this blog, not to mention thousands of scribblings, restless thoughts, excited actions, feelings of insight, and sometimes, puzzling over what I meant when I wrote something down or embarrassment about how it appears in retrospect.


But a couple of thoughts/suggestions/ideas as a beginning to indicate where all this might go, as complex and confusing and significant as life itself:

  • I must do my best
  • I must be modest
  • I must be tolerant of what I can tolerate
  • I must act in the face of what I cannot abide
  • I must always try
  • I must forgive and pray for forgiveness
  • I must hold myself and others accountable because we are all accountable
  • I cannot be sure what the truth is
  • There is no escaping the truth
  • I cannot use my uncertainty as an excuse
  • There is meaning to everything
  • Some things are more important than others
  • I cannot control everything, and perhaps I cannot control anything
  • But I must conduct myself as if I can
  • Because I am responsible for what I am, what I do, and what I cause
  • I learn, and I make mistakes
  • I cannot avoid or banish fear or anger
  • But I must find love and joy where I may
  • There are no objective universal answers to any specific questions, even if there is an objective reality we move within
  • I cannot judge others or even myself in any ultimate sense
  • But I cannot ignore my own conscience, or accept actions of others that my conscience impels me to resist


The Agenda & the Stakes—Draft I, Part 5

Some Propositions regarding Identification, Monitoring, Voting, and Harassment of Citizens

  • Any and all government and private databases and records of citizens shall be abolished except those created with the knowing, reasoned, and thoughtful prior consent of each citizen included therein.
  • Any and all permanent government and private databases of living citizens shall be abolished except: (1) those created with the knowing, reasoned, thoughtful, voluntary, and free prior consent of each citizen included therein, (2) birth certificates, (3) national passports, (4) state ID cards, and (5) criminal records for persons convicted of capital crimes.
  • No government or person may collect or maintain any biometric information of any kind regarding any citizen except: (1) for purposes of security or financial clearances of employees by their employers, (2) for purposes of employees performing military service or hazardous civil or private service by their employers, or (3) for purposes of investigation, prosecution, conviction, and enforcement in connection with a felony crime or a civil tort subject to permanent injunction.  Such information may only be collected or maintained to the extent and for the period of time reasonably required for such permitted purposes, which presumptively must expire no later than six years after such a clearance is revoked, such service is terminated, or such enforcement ended, unless there is a reasonable basis considering such person’s individual conduct or position during and after such six-year period, to extend such period.
  • No government or person may collect or maintain any information, documents, or records of any kind that may be used contemporaneously or after the fact to track the movement, location, or actions of any person, or that is linked or known to be connected to such person, except (1) subject to a duly issued warrant or subpoena, or (2) with the knowing, reasoned, thoughtful, voluntary, and free prior consent of each citizen, or (3) temporarily in accordance with the rules of investigation and evidence. No government or person shall be liable under this provision merely because information, documents, or records within their memory or control, or which they created, later proved to be relevant evidence or probative regarding the treatment of a third person; but evidence of systematic collection or maintenance of such information (at all, in the case of government; or except in relation to customers, suppliers, competitors, relatives, friends, and acquaintances of a private person; or except in relation to voluntary celebrities and public figures.
  • No government or person may conduct a search of any information, documents, or records of any kind except (1) subject to a duly issued warrant or subpoena, (2) in connection with the crossing of an international border, or (3) with the knowing, reasoned, thoughtful, voluntary, and free prior consent of the person whose data is being searched for, or which is being compared with the stored data.
  • If the government creates or maintains any information regarding citizens, such information must be used to the extent relevant to reasonably determine and verify eligibility to vote in elections held by the United States or any of the several States.
  • Nothing shall prohibit the US or any state government from requiring passports or state ID cards as part of determining and verifying eligibility to vote, as long as such use is reasonable.
  • No state ID card may be required [or offered [or used]] for any purpose other than determining and verifying eligibility to vote.
  • No passport may be required, offered, or used]] for any purpose other than determining and verifying eligibility to vote, or to travel internationally.
  • At least [Solely?] for the purpose of determining and verifying eligibility to vote, the government may [to the extent reasonable must] acquire and use information from private sources [such as credit rating agencies] on the same basis [e., by purchase not compulsion] as private citizens.
  • No passport or state ID card or other requirement of identification may be used to monitor or impede the movement or disturb the privacy or conduct of any citizen except subject to a duly-issued search warrant.
  • The information which may be required [requested?] of citizens or maintained in connection with the issuance of birth certificates is limited to the child’s full name, the full names [and birth certificate numbers or national passport or state ID card numbers?] of the child’s parents (if known), the certifying physician’s name and professional credentials, and the date, time, hospital, and jurisdiction(s) of the child’s birth.
  • The information which may be required [requested?] of citizens or maintained in connection with the issuance of national passports or state ID cards is limited to the person’s birth certificate and such information as is reasonably required to identify such person uniquely. It may [must?] [may not?] include biometric data.  It may not include information disclosing anything about the person’s movements, activities, beliefs, culture, affiliations, or associations; and it may not include anything more than is necessary to conclusively identify such citizen.
  • Any mandate not adequately funded contemporaneously with its passage shall be null and void ab initio.
  • No government agency or agent may unnecessarily create, impose, support, or otherwise sustain or increase any physical, financial, reputational, or otherwise effective obstacle to any citizen’s life, liberty, property, commerce, association, movement, prosperity, social status, learning, or other legal activity of any kind. In particular, no stop, application process, entry, exit, permit requirement, or other impediment to freedom shall be imposed requiring more than five minutes of a citizen’s time except in connection with due process detentions and arrests; no citizen shall be embarrassed or harassed in connection with due process detentions and arrests; and no charge of any kind may be imposed, nor anything conveying any benefit to any government (or any person associated with such government) be required, of any citizen in connection with any legal exercise of such citizen’s rights, or with any legal activity of any kind.
  • No charge or fee of any kind or in any form may be required by any government in connection with the enforcement of any law or regulation; nor may any cost or burden of any kind be shifted to any citizen in connection with any licensure, permitting, or regulation of any kind.
  • The government shall be liable to all citizens for their reasonable costs and damages occasioned by compliance with government regulations other than prohibitions on crimes.


Some more propositions to expand the individual liberties enumerated in the Bill of Rights

  • Citizens [All persons?] have the right to move freely anywhere within the US [through any public space in the US?] without search, identification, permitting, let, or other hinderance by government.


Some Fundamental Economic Principles

  • The more laws there are, the weaker the rule of law becomes.


Some Propositions to Reform the Judicial Selection Process

  • No judge may hold more than one [federal] judicial office in their lifetime, and no one appointed to any [federal] judgeship may thereafter be appointed to any state or federal office. OR Lifetime tenure of federal judges shall be abolished and in place thereof there shall be 12 [or 8 or 10?]-year terms for each such judge.
  • No one who serves as a federal judge may be elected to any federal office; and no one who is elected to any federal office may serve as a federal judge.

The Agenda & the Stakes—Draft I, Part 4

Some Propositions to Empower Citizens Against the State

  • Every high school in America shall offer and require four years of Civic Law.
  • No person may vote without passing the Civic Law curriculum, or accomplishing the same through a GED or following private training. No one may be prohibited from retaking their Civic Law exam as many times as they like, or at any age, although the government need not pay for the provision of repeat training where it can prove to the unanimous satisfaction of a jury that it has previously made reasonable and sufficient efforts towards the education of the person.
  • The nationally-prescribed Civic Law curriculum must, at a minimum, include a full explanation of each citizen’s rights, the basic structure of the US government, including the personal and organizational liability of the US government for offenses against citizens, and how to determine what the law is with the resources available to members of the public online and reasonably available to every citizen without a computer; and this must be proven every year by statistically sufficient sampling and testing to determine the mean and variance of the national population’s performance that year on the relevant test(s).
  • Persons born before yyyy shall be deemed for all purposes to have fulfilled the national civics requirement; but are entitled to free education of the same regardless of age if they wish it.
  • No person may be convicted of any crime that is not recorded in sufficient specificity to give certainty to such person that they would be in violation of such crime, if a reasonable person who has passed the Civic Law curriculum would not have been able to determine to a reasonable certainty that the act for which such person is being prosecuted is against the law, using the training and knowledge learned in their Civic Law curriculum. Such proof may be offered in any form allowed by law by any criminal defendant or civil litigant against the government or any government employee. Without limiting the foregoing, the specificity with which each crime is recorded must be proven every year by statistically sufficient sampling and testing to determine the mean and variance of the national population’s performance that year on the relevant test(s).
  • No one may be prosecuted or convicted for violating any law or regulation where they can show they had at the time, or can articulate at trial, any reasonable apprehension that they might have been in violation of any other law or regulation by obeying (or making a good-faith effort to obey) the first law or regulation.
  • No person’s rights shall be abrogated by reason of their having been convicted of any crime, following the completion of their sentence.
  • The failure of any elected or appointed official, or any member of the civil service, to disclose any misdeeds of any branch or department of government, shall be a felony.


Some Propositions to Promote Transparency

  • All federal accounts, budgets, and estimates must be prepared and maintained using the same accounting standards and rules applicable to publicly-traded private companies listed on any US exchange.
  • No part of federal funds or expenditures subject to Congressional control, modification, or elimination, may be isolated or defined as a “trust.”
  • Elected officials shall be liable for all accounting errors and improprieties to the same extent as any officer of any publicly-traded private company.


Some Propositions to Protect the Integrity of the Judicial System

  • No one may be convicted of any crime unless all evidence admitted in support of such conviction is made public prior to conviction and is published to the jury prior to conviction.
  • No one may be convicted of any crime if any part of the proceedings, or any information or material observed or observable to the fact finder, is not public.
    No one may be convicted or held in custody by any secret court or tribunal, by any court or tribunal acting in secret, by any court or tribunal whose records are sealed or secret, or by any court or tribunal whose proceedings are closed to the public.
  • No one may be deprived of their life, liberty, or property by the government, except as part of the lawful range of sentences prescribed by a criminal statute following conviction.
  • No public defender may be asked to defend more cases than any prosecutor against whom such public defender is representing a client, is prosecuting; and no public defender may be asked to defend more cases than the average number of cases defended by private attorneys. Any conviction or other decision against any client of such a public prosecutor shall be vacated and reversed, and any harm to such person as a result of conviction or other decision compensated to them, in any year with respect to any public defender who is not in compliance with this rule.  Any public defender who voluntarily takes on more cases than he or she is allowed under this provision, when other adequate defenders are available, shall be jointly liable with such prosecutors.
  • Once any criminal defendant is charged, the government has an obligation to spend as much on behalf of each defense as on behalf of each prosecution, and to provide as many resources of every description to the defense, as are available to the prosecution.
  • No one who has made any plea bargain may testify against another as a component of that bargain.
  • Plea bargains are subject to the same anti-bribery rules as those applicable to all other witnesses.
  • A jury and judge must rule on whether the case against the plea-bargain witness would have ended/create precedent, before any testimony obtained as a result of or in connection with any plea bargain may be used against anyone else.
  • No law may be applied retroactively if the effect is to impose a crime or increase the effect or the risk of a finding of liability or the consequences/sentence of such liability, after the fact.
  • No plea bargains at all. OR No plea bargain may reduce any sentence by more than 30%.
  • No one may be convicted of a crime under a law where it is a case of first impression, but instead may only be convicted and sentenced under lesser-included charges that are well-established, although the charges of first impression shall be treated in all other respects as an adjudication on the merits.
  • No confidential plea bargains shall be allowed in any criminal case, and the evidence and reasoning of the judge in approving each plea bargain, with specific reference to risks, facts, and applicable law and charges in each case as to each charge plead on, must be entered in the record.
  • A defendant may appeal any sentence resulting from a plea bargain on a basis of actual innocence under the same circumstances allowed post-trial to any other convicted criminal. OR No plea of actual innocence shall be voided by any plea agreement.
  • No one may be prosecuted or convicted for any conduct in defense of a criminal matter, where the prosecutor would not be similarly liable for the same conduct (g., plea bargains vs witness bribery).
  • No act may be counted as an element of more than one criminal offense in any one or more criminal charges, indictments, jury instructions, plea bargains, or other judicial processes of any government or governments.

Oppression in the Information Society—Part One

The State, and more broadly even civil society through its prejudices and lack of self-awareness or of respect for the freedom of others, may encroach upon and degenerate liberty in myriad ways against which citizens must always be vigilant.  In this regard, any category of force is a tool of oppression and by its nature, inherently susceptible to evil.  Probably most or all of these methods have been around in some form throughout human history, but unfortunately technological advances create perils and risks as well as opportunities and benefits in terms of ever-more-sophisticated and effective methods of control, even as they offer us similarly advancing methods of resistance and liberty.  It is up to us as citizens to have the wisdom to resist the sophistication of evil and instead empower liberty with technological advances.  It is up to us as citizens to out-think and out-smart the slavers, to keep up with their insidious tools of manipulation and oppression.  It is up to us as citizens to think for ourselves, feel for ourselves, act for ourselves, live for liberty, live for love, live for the truth.  It is up to us to be, and prove ourselves, citizens not subjects.

In particular, with the rapid advance of information technology, there is a challenge to all of us at this time to be alert to and think critically about the ways in which the improving technology of knowledge may be used not only to enhance well-established and long-familiar methods of oppression, and to conceal and obscure them from us.  Secrecy may be the most powerful tool of oppression, because it is so hard to resist what one is unaware of, or cannot attribute to a source.  Without knowing what a problem is, or its source, we are handicapped, or even paralyzed, in our efforts to resist, fight, learn about, and overcome them.

The citizen’s great disadvantage in this struggle is that the citizen is not focused on trying to control, manipulate, destroy, or oppress others.  The citizen researches and conceives for the betterment of the spirit, of the soul, of the world, of humanity, of loved ones, of everything.  It is, instead, the slaver or oppressor who obsesses and fantasizes about how to serve their own purposes, whether consciously recognized or not, who spends hours and months and wastes a lifetime and a soul on trying to manipulate and control.  Citizens are therefore likely to be incredulous of what is done or intended for technology by the petty and mean, and slow to believe it.  We are indeed lucky in the US to have the opportunity to have observed many forms of oppression in their more-virulent forms, at a distance, for much of the past 50 years; and that is an advantage we must seize upon to protect ourselves.  The safest course is to resist the creation of centers of power, and it is our right to do so.

Here, as in other areas, everyone should ask themselves:

  • If you wouldn’t want your neighbor to have such power or knowledge over you by illegally surveilling you, why would it ever be okay to give a gigantic corporation with immense wealth and power, and which could easily be and probably has been, infiltrated by foreign governments to have it?
  • if actions are so harmful or wicked that we would consider banning private actors from undertaking them, why on Earth would we suffer our government to engage in them?

For consideration, a listing of loose associations of related principles, extreme forms and examples historically, analogies to experiences already known within the US, and brief statements trying to get down on paper sources of concern related to the age of Big Data and channeled electronic communications, and how they may relate to historical experiences:

Pride Changed Angels Into Devils


  • Intimidation—Knowledge is power and power is intimidating. I am amazed at the willful naïveté, and indeed hubris, in the statement “I have nothing to hide,” or “People who have nothing to hide, have nothing to worry about from surveillance.”  I am flat-out stunned when I hear attorneys or law-enforcement officials say something like this.  Every citizen (and certainly any self-respecting attorney) should and must be aware, at the core, that there is a problem with the mere fact of the government being capable of listening to or observing privileged communications between a criminal defendant and his or her legal counsel.  Surely it doesn’t take great imagination or understanding to recognize the core problem here applies much more broadly—first, perhaps, to people not yet arrested or charged with crimes who are trying to ensure they comply with the law by asking about their current conduct; second, to the activities and communications of attorneys and their agents in representing criminal defendants or indeed citizens concerned they need legal advice on whether something they are doing or did, complies with the law.  Only a person with the greatest pride and lack of personal awareness can fail to recognize there is something or someone in their life they care about that could be threatened with the right information—particularly in a society, like ours, with literally thousands of inconsistent, ambiguous, and overlapping criminal and quasi-criminal prohibitions covering nearly every aspect of our lives.  The bread and butter of criminal prosecutions are informants whose technical offenses against the law even the police and prosecutors don’t really care about, but knowledge of which can be used to leverage them into providing testimony against others.  Private actors without color of government authority can also use information as leverage; historically this is associated with crimes such as blackmail and extortion, particularly by organized criminal organizations such as triads, the mafia, or spy networks to manipulate and control others.
  • Concealment/Isolation—Denial is a powerful form of avoidance of one’s moral obligations and indeed, righteous indignation as humans with an inherent urge to be citizens. Perhaps the easiest way to corrupt and seduce people with good instincts is to help them pretend there is nothing to object to by keeping the details, or indeed the broad outlines, of government actions invisible.  Includes censorship, security clearances, detention facilities, and exile in all their forms; the Nacht-und-Nebel-Erlass secret order (“Night and Fog Decree”) of 7 December 1941; probably concentration camps in all forms and locations, but notably the NKVD special or “silence” camps in occupied Germany (“Schweigelager”); detainment in Guantanamo Bay and US government “black sites.”  The Stasi’s very motive in developing Zersetzung and the FBI’s in Cointelpro were to conceal actions by removing them from commonly-recognized statistics like incarcerations for political reasons.  More recently, the US government’s fury at Edward Snowden was based on his revelation of what everyone already knew, or should have known, the NSA was already doing; but which to our country’s shame, so many Americans were willing to ignore or overlook before the details were thrust into our faces.


More propositions to expand the individual liberties enumerated in the Bill of Rights

  • Citizens have the right to bear, maintain, and use arms for self-defense—in their homes, on their private property other than at times when the public is invited onto such property, in transit to and from purchase or sale, in transit to and from practice and every lawful use, and in every other time, location, and circumstance where they have a reasonable apprehension of harm or impairment.
  • Any government or government official who impairs or prevents the ability of a person to defend their life, liberty, or property is strictly liable for the protection thereof under all circumstances, at all times, and in all places where such impairment or prevention applies.
  • To the extent an individual right or principle of individual right can be enshrined and protected by the law, it must be.


Some Propositions Regarding Checks and Balances

Part of the genius of the US Constitution was the system of checks and balances which handicapped and restrained each branch of government, and which cumulatively, acted like a heavy weight of inertia to make expansion of the state slow and difficult.  But after 242 years, even the slow accretion of power has passed the tipping point and now the very inertia that once protected the citizens, traps and oppresses them with an unresponsive government that serves to concentrate wealth and power in the hands of the few.  The federal system also offers opportunities for the multiple governments operating within a given jurisdiction to check and counterbalance one another; although as historically structured it has always been subject to abuse, and the primary effect of the federal system today often seems to be subjecting citizens to additional levels of bureaucracy, multiplying the inconsistency of regulations already present within each government, and exponentially increasing the number of criminal charges to which any given act may be subjected.  In the same vein, even within a single government, the number of agencies with regulatory and enforcement power has exploded to the point where citizens may be subjected to multiplicative, unreasonably burdensome, and often flatly inconsistent regulations and laws.

Some ideas for addressing these problems and getting the system to work better:

  • State Constitution protections of citizens trump Federal regulations within that State, and the protections of the Constitutions of each State implicated by any interstate activity trump Federal regulations and the regulations of any other State with respect to any such activity.
  • Mandamus shall be available as of right to every criminal defendant with respect to every right asserted by such defendant under any applicable state or federal constitution, both to the court having appellate jurisdiction over the case where the defendant is charged, and to the appellate court that would have had jurisdiction over the matter if the defendant were charged by the government whose constitutional right is asserted.
  • No government agent or agency shall have simultaneous authority to stop, detain, arrest, hold, indict, prosecute, or adjudicate criminal and civil matters concurrently.
  • No agency having any regulatory authority may enforce any criminal law, and no criminal penalties may be imposed on anyone for violating any agency-promulgated regulation.
  • No regulation promulgated by any part of the executive branch shall have any force or effect whatsoever.
  • No regulation promulgated by the President or the President’s office or any military or civilian agency of the executive branch shall have any force or effect whatsoever except with respect to the premises owned by the Federal government and administered by such agency, and employees or agents of such agency.
  • Every legal and regulatory violation must be prosecuted and tried in the first instance by an Article III Court. Nothing less than an Article III Court affords minimum due process to any citizen.
  • The power of each branch of government (and each level of government) is to be exercised broadly insofar as such power acts to protect the citizen or constrain the authority of any other branch or government; and narrowly insofar as such power would have the effect of complementing, supplementing, or confirming, the authority of any other branch.
  • No public or continuing injunction may be exercised by any Court over any government employee or agent, or other governmental body, or on behalf of any class that is incapable of certification by a plaintiff class as a class action. Nothing in the foregoing sentence shall limit the ability of any Court to prohibit or constrain illegal or unconstitutional conduct of any governmental employee, agent, or body.
  • Neither Congress nor the President may limit the jurisdiction of the US Supreme Court, or of any US Appellate Court within its area of subject matter jurisdiction; nor may Congress nor the President limit the subject matter jurisdiction of any District Court in such a way as to actually or effectively eliminate or constrain access to original courts having subject matter jurisdiction Constitutionally allowed to the courts.
  • Private bills and private executive actions, except Presidential pardons, shall be abolished, unenforceable, and unconstitutional. The Courts have sole jurisdiction over private and specific matters and actions pertaining to US citizens and [legal?] residents within the United States.


Some Propositions to Improve Accountability of Public Officials

  • No vote of Congress nor veto of the President nor judicial decision may be taken off the record. Every Congressional and Presidential vote or abstention and judicial opinion and abstension shall be recorded and stored electronically with the text of every bill or decision or opinion or other document voted upon or opined on or abstained from, in a searchable database accessible from the world wide web.  The Library of Congress shall maintain one version of the database, Each Presidential Library another for the relevant President’s term, and the Supreme Court a third, in block-chain fashion, to prevent corruption of the databases. Copies of any or all of these databases may be downloaded for free (or at actual cost proven by the relevant database holder of making such copy or providing such download) by anyone wishing to combine such data with analytical tools or other data.
  • No criminal statute shall be sustainable or enforceable without a separate legislative history explaining the intentions of each logically distinct provision of the statute, being enacted separately. Such statements of intent may be authored unanimously, individually, or by any majority or minority of officials voting for such measure (and similarly, officials voting against such measure shall be
  • Elected officials and judges are personally liable for all harms caused to any person within the US, and to any US citizen, whether intended or not, where such official or judge cannot prove they read and had a fair understanding of every word of such statute at the time they voted for it. A reasonable, contemporaneous (at the time of the vote) statement written and signed or recorded and verified by such official using their own words actually written by them or demonstrably (by contemporaneous redline and similarly written and signed, or recorded and verified, prior instructions to such aides or clerks as may assist them in drafting) (i) stating all bases necessary for their decision, (ii) with reference to the specific language of any bill or law, and the national situation and need (for elected officials) or the specific facts of each case (for judges), (iii) and with reference to those portions of the bill or law the specific facts apply to, and (iv) comprehensible reasoning connecting their decision on the vote or opinion, to the matters identified and referenced above, and (v) an opinion explaining the basis or lack thereof for Congress’s Constitutional authority for passing such a bill, in a manner that a rational person can follow, once shown to be in conformance with all of the preceding clauses, shall be an absolute defense against any liability under this provision.  Such writings and records shall be conveyed to the same three agencies responsible for maintaining statements of intent and judicial opinions, but shall *not* be publicly accessible, although they *shall* be available to any litigant who may sue such official or judge under protective order; and they shall become available to the public and be added to the public database 25 years after the term of office of such official or judge ends.
  • No statement of Congressional intent authored or signed by any official, may be used to question or impeach their private explanation for their vote; however, any private explanation, once brought to life, that the judge in the case agrees with any party in the case is in conflict with a statement of intent signed by such official, shall be made public and must be considered by the courts in weighing the credibility of any statement of Congressional intent.
  • Elimination of sovereign immunity except with respect to actions legally undertaken by the military in times of war.
  • Elimination of sovereign immunity for all governments and government actors (at least in all spheres where government is acting as private actor or private actors can function, and at least to extent implicates civil liberties) for harms to US citizens within the US, or where reciprocated by other nations in an enforceable manner, as to their citizens within the US and US citizens within their countries.
  • The government’s rights to pursue civil remedies against citizens shall be limited to the same scope as citizens’ civil rights against the government and one another, and in no event shall any government or government actor that itself enjoys sovereign immunity with respect to the same field ever be allowed to pursue a civil remedy against any private person.
  • No one may hold any federal office or be appointed any federal judge without putting all their money into a blind trust.
  • No one may use any money contributed to any campaign for office or any organization advocating politically, for personal use at any time after their election.
  • No one may work for or be compensated by or have any investment (other than a de minimis investment purchased at arms’ length in a public company) in any federal contractor or anyone who is or was an officer of any federal contractor at any time, after holding federal office.
  • No one may hold any federal office after working for any federal contractor.
  • Corruption shall be considered treason.
  • Any agency with the ability to participate in any civil asset forfeiture, or any criminal asset forfeiture not immediately and fully paid to the individuals harmed by such criminal for such crime, shall be open to similar civil restoration of any assets lost or adversely affected by the actions of such agency, directed towards, in part or in whole, such person.
  • Civil asset forfeitures, if allowed at all, shall be used exclusively for compensation of persons harmed by the government. OR No civil forfeitures shall be allowed in connection with, or as a result of, any criminal prosecution. [OR:  they go to the public defender defending such case?  Or the public defender/criminal shall have a lien against the government for all such amounts]
  • No one shall be convicted of any crime which contains as an element (i) the government employment, rank, or position of the victim; (ii) failing to cooperate with (as opposed to actively interfering with) law enforcement in the enforcement or investigation of a possible crime; (iii) failing to obey any order or command directed at an individual or identifiable group of persons or organization or entity other than a judicial injunction duly entered in accordance with law; or (iv) cooperation or participation after the fact as an element of any conspiracy.
  • There shall be no official immunity for arresting, detaining, stopping, or otherwise interfering with the lawful conduct of citizens.
  • Members of Congress, the President, their spouses, and any trusts over which any such person has signatory authority shall be personally, jointly, and severally liable for any amount of government deficit spending other than as a result of or in relation to defense of the nation in time of war; and such liability shall carry forward for a period of not less than fifteen years after their last public service.

The Agenda & the Stakes—Draft I, Part 2

Some Propositions to Reform the Electoral Process

As reflected in the competing proposals below, my libertarian ethos has not yet provided me with a clear sense of direction on the best way to run an election; to date, I am left with the sense no system is perfect but something seems to have gone wrong in US elections in a way that is not true of many other countries such as the UK because a critical degree of accountability has been lost, especially when control of the House, Senate, and/or Presidency are divided.  These proposals are worded as changes to the current law governing US elections.

  • Electoral districts shall be abolished in favor of a single-transferable-vote or other proportional voting system.
  • The first-past-the-post voting system shall be abolished in favor of an instant-runoff voting system.
  • Electoral districts shall be redrawn following each census based on a formula intended to minimize the number of “wasted votes” within each jurisdiction based on the results of elections in the preceding decade.
  • Electoral districts shall be redrawn following each census based on a formula intended to minimize the variance of geographic district shape.
  • Boundaries between contiguous states shall be disregarded in redrawing federal electoral districts.
  • The office of Vice-President shall be abolished.
  • If a President dies, becomes incapacitated, resigns, or otherwise leaves office more than eight months prior to the end of her or his term, she or he shall be replaced in a special election.
  • The electoral college shall be abolished, and the President elected directly.
  • The electoral college shall be abolished, and the President elected for four-year terms by the House of Representatives.
  • The electoral college shall be abolished, and the House of Representatives shall have the power to elect and recall the President as it sees fit.
  • The Senate shall be abolished.
  • Direct election of Senators shall be abolished, and Senators elected by the governments of their respective States.
  • No person may run for any elected office who has ever held any elected office before.
  • No person may run for any elected office within any government who has ever held any elected office in the same government before.
  • No person may run for more than one term in any elected office.
  • No person may run for more than one term in any elected executive office.
  • No person may run for more than three terms in any elected legislative office.
  • No person may run for any elected office who has ever served as a judge.
  • A US Representative’s single term in office shall be 4 (or 6) years.
  • A Senators’ single term in office shall be 10 years.
  • The term of the President shall be lengthened to 6 (or 8) years.

The Agenda & the Stakes—Draft I, Part 1

Today, permit me to try taking advantage of the informality of the blogging format by taking an aside to brainstorm and offer some hypotheses for discussion.  At least partly it is because I want to explain why I am now, and doubtless again will in the future, delving into methodology, arcane branches of philosophy, and even religion:  Not only because I believe it to be the truth, but because the stakes are so high in all of the social and natural sciences.  Perhaps most critically for this blog, given its focus on political economy, is to remember how fundamental to the quality, meaning, and moral worth of all our lives, the social order—and especially the government’s power of tyranny—are to them.

As a way of illustrating this point, and hopefully as a way of interesting and helping those of you who care passionately about the social conclusions and questions of this blog to invest yourselves in it, I want to provide some indication of where this long and winding methodological road leads, and how I can possibly be preparing to pull conclusions and arguments about what society should look like, Phoenix-like, from the epistemological ashes of humility and Original Sin.

Writing this now, the best way I can summarize what I am trying to explore and answer here is in two general questions:

What does a truly libertarian society look like?

—and its corollary—

 What separates a citizen from a slave?


As a first, informal, and incomplete effort to answer these general questions, I would offer the following relatively specific propositions, which as a form of shorthand, might be summarized as rights I believe to be, or wonder if they are, encompassed by the US Declaration of Independence and the Ninth and Tenth Amendments to the US Constitution—that is, rights not specifically enumerated (or not as fully elaborated) in the first 8 Amendments.  This is my starting point, not because I assume or expect anyone else to assume there is anything magical or uniquely appropriate in any formulation of rights drafted by committees and edited by legislatures, but because this formulation is the fundamental law of my country, as familiar to me as the street I live on, and as carefully considered by me as a lawyer than any other formulation.  These are preliminarily arranged by topics or themes below as a starting point for analysis, but many of them could fairly be assigned to different categories.

Some fundamental moral propositions

  • As individuals, we are fundamentally innocent of the wrongdoing of other individuals, and are responsible solely for our own behavior.
  • But as members of society, we are automatically complicit in every act and proscription we tolerate to be taken in our name.

Some propositions to expand the individual liberties enumerated in the Bill of Rights

  • Citizens have the right to bear and maintain arms sufficient to pose a credible and constant threat of revolution against tyranny, and each government must train every citizen who asks in the responsible use of all classes of legal weapons before imposing any liability based on the possession, use, or commission of specific acts with any class of weaponry.

Some propositions to restore the fundamental protections of the jury and the common law

  • No one shall be convicted of any crime within the US without proof of actual harm to another person’s life, liberty, or property [or in the case of treason, to the state] resulting proximately from the defendant’s actions as a separate element in each offense charged.
  • No one shall be convicted of any crime within the US without proof of actual (not imputed or constructive) mental culpability as a separate element in each offense charged.
  • No one shall be convicted of any crime within the US except by a jury of at least 12 citizens, drawn from an initial pool of at least 36, with the defendant getting 3 peremptory strikes for every 2 peremptory strikes by the state after all strikes for cause have been exhausted.
  • No juror shall be asked to serve on any jury panel without full replacement of any wages or salary they earn as an employee, or in the case of any stay-at-home parent or any business owner playing a critical role in the operation of their business, without sufficient compensation to provide for the appropriate care of their children or business. No juror shall be paid less than the highest of any minimum wage prescribed by law within the jurisdiction where the venireman is called, regardless of their economic or personal situation.
  • No mandatory or suggested sentence or range of sentences based on circumstances of a particular violation (as opposed to the specific violation with specific elements defined by law) may be imposed by any legislative body.
  • No sentence shall be imposed by any judge without ratification thereof by a jury.

Hubris, Original Sin, and Heuristics II: Methodology and Uncertainty

The Task.  Here I set aside my daily life, my social roles, the narrowly professional scope of my training to undertake the philosopher’s task:  to start from nothing and understand everything.

I can, and indeed must, stand on the shoulders of the billions of students and teachers who have come before me:  family, friends, professionals, artists, academics, prophets.  I shall make the best use I can of every idea, tool, record, and inspiration I can find they have left behind; but to the limit of my ability I shall not accept or reject anything without consideration and as much understanding as I can muster.

Even with hundreds of years of enlightenment, thousands of history, and millions of evolution, to help me and perhaps inherent in me, I can only hope the philosopher’s task is merely audacious rather than vain; but for me, it is necessary.

We—or at least I—am not great enough to comprehend everything at once.  I believe now that is the sole province of God; and to be human is to be essentially limited.  Being merely human, I must take philosophy one step at a time, breaking the task into pieces I can hope to manage.

Experience suggests the obvious place to start any task is at the beginning, with the first step.  Logic suggests conclusions can only be as sound as the original premises or principles they proceed from, and the method by which they are derived.  I believe this makes sense; but it leaves me with the difficulty of identifying the original principles and the root method.

The Middle.  The challenge is profound; and compounded because surely I do not stand at the beginning.   Instead, I must be deep in the middle—of learning, of life, of science and art, of history, of evolution.  I cannot even clearly imagine, let alone reason back to or perceive, the beginning… can I?

The beginning—my beginning—is lost in the past.  And despite the extraordinary progress of technology and science, I doubt they may ever permit us to record for anyone’s later reference, each step in the evolution of their worldview and understanding (unless somehow science and technology can jump the bridge between the subjective and objective, which at least now, I suspect may prove to be impossible).

How could one possibly begin with one’s own beginnings?  Today, and very likely forever, we cannot even tell for certain when human existence begins (or even life itself, other than by reference to objective definitions), let alone the soul.  If not as a categorical matter, how possibly as an individual experience?  I can remember almost nothing from before a certain age; and when memory begins, it is for all but a handful of people, spotty, piecemeal, and structured in a manner other than chronological or formally deductive.  Babies, even weeks after birth, may be outraged when they pull their own hair because they don’t yet understand what their hand is pulling on is their own hair—and they don’t yet understand they are moving and grasping anything with their own hand!  It takes weeks and months to sort out that one has a body, that there is something beyond one’s body, that acting in the most basic and physical ways has consequences, however simple and uneventful.  This learning process doesn’t reach fruition automatically, or even in a time period measurable in minutes or hours or days.  Simply for a child to roll over, to push up with their arms from the ground, long before she can even walk, the baby has to learn a thousand prerequisite principles, and at least an essential or working knowledge of sensation, motor control, time, space, and the limits of their own body.

On one level it seems natural that when sitting up or standing are extraordinary achievements, examining one’s nature, identity, life, and meaning are things many people don’t prioritize, or indeed may actively avoid.  But the more important conclusion is surely that if a baby can achieve so very and extraordinarily much, in so brief a time, what we can achieve in adults within the human lifespan must be truly amazing!  And, we should try our best to do so.

Even the most theoretical physicists and clergy must construct an interpretation of the past based on observation and inference, mustn’t they?  Unfortunately, although I believe they are not only useful, but necessary, inference and observation are categorically and necessarily flawed, in a way epistemologists cannot bear to contemplate but small children understand and experience.

For methodology, the implication is that one cannot possibly, truly start any analysis at the beginning because (1) we cannot remember the beginnings of our own analysis, and probably it would be impossible to do so; (2) probably, we cannot practically reconstruct the beginnings of our own analysis because there are so many thousands or millions of steps from whatever the first principles actually are, until we even arrive at a point where we can conceive of original premises; and (3) probably, there is a point (which I am not persuaded anyone can yet identify, but probably somewhere between the instant of conception and the time of birth) where whatever is happening as we learn changes fundamentally in nature from the objective to the subjective.

As an imperfect analogy to illustrate this third point, one might compare human development and learning to hardware and software.  Software, which one might compare imperfectly (but simply for purposes of illustration) to the mind, is a language based on deductive reasoning structures.  Hardware, which one might compare equally imperfectly to the brain, is a physical construct.  Similarly comparing life to our conscious efforts, we may assemble, shape, or at least affect materials from the world around us using our empirical observations about the qualities of their constituent materials and how they react to stimuli, to create logical pathways.  Miraculously, when silicon and other trace elements are arranged into very complex patterns, they create channels that can support and express at least an electrical analogy to reason in the form of software.

Inference.  For centuries children have frustrated their parents’ reliance on inference by repeating the question “Why?” in response to every explanation.  There is always a practical (and frequently an emotional) end to this line of questioning; but never a logical, categorical, necessary, or sufficient one.  Arguably the greatest methodological dispute in history is between rationalists and empiricists.  Surely it persists, at a minimum, because we sense each position is useless without the other:  induction is inarguable and practical, but inherently passive, essentially objective, limited to correlation, and statistical; whereas deduction is logical, powerful, essentially subjective, causal, and goal-oriented, but untethered and either indeterminate or internally inconsistent.

Or to take things a step further, induction and deduction may require one another.  If formal logic is intuitive, does that make it natural or only genetically-determined?  More importantly, it seems unlikely if it were intuitive, it would be the subject of college courses with, effectively, a prerequisite of a generation of life and a decade of formal education.  Like many people, I have struggled my whole life to understand the world around me; but it took decades to even begin understanding myself, and perhaps it even took 20 years to begin to perceive my true self, or its existence.  If arriving at logic has so many prerequisites, how can we not suspect that each element of formal logic is something we accept only because empirical induction persuades us to accept it?  Conversely, as deceptively simple as the notion of induction is, it is a notion we question, study, and test; and perhaps more profoundly, only correlation, and at the outermost limit perhaps temporal sequence—not causation—can be observed or tested.  The human mind may take many empirical experiences for granted—people acted as if an unsupported object would fall for millennia before Isaac Newton stopped to ask “what’s going on here?”—but the human mind seems to search for some kind of meaning, and perhaps utility or purpose, in the world around it, and even when a particular phenomenon is unquestioned, people necessarily make sense of it, or at least make use of it because they are living their lives in its presence—and either course seems to embrace and rely on induction.

To step back a step, in a page and a half of trying to understand where I can begin, I’ve relied on (or at least considered) dozens of concepts that most of us don’t even have the vocabulary or background to study until adolescence or adulthood.  Along the same lines, developmental theorists struggle to even understand what mental understanding the human brain is even capable of supporting in different phases.  Rightly (showing how difficult it is to think about first principles until we are educated and acculturated to do so) or wrongly (showing how impossible it is to fully comprehend or even remember or perceive our own past), developmental theory seems to indicate that faculties are added and improved from conception to about 25 years of age; implying that we are capable of more profound understanding only deep into our learning and development cycle (even if the rate of improvement and acquisition of understanding is steadily decreasing).  And, perhaps, suggesting reason and sense themselves are only permitted by, and conversely must necessarily be limited by, our biology.

Observation.  Although adults may understand and appreciate it more fully than children, most of us can remember, probably back into childhood, the difficulty of distinguishing between dreams and reality.  Indeed, researchers of young children have posited that young children are incapable of distinguishing between reality and dreams.  I, and apparently many others, can remember believing a dream is real, experiencing a dream as reality, and even waking up and not immediately being able to distinguish between what is real and what is a dream.  In the twilight between dreaming and reality I have experienced, and many others have reported, that even after awaking one may still be unsure how much is real and how much is a dream, until…. Well, perhaps, until the experience of the dream fades and the experience of reality is in front of them.  But maybe this suggests not that the difference between reality and dreaming is clear; only that whatever we are experiencing, seems real to us.

One may make observations about the objective world, or the subjective one.  Perhaps for the moment I may assume all of us, through our experiences with the follies of others (and in moments when we may admit them, of ourselves) are aware of how tricky and unreliable our observations about subjective experiences and meaning can be.  But I suspect it is harder to hang onto the trickiness and unreliability of observations about objective experiences because we are mediated from them and thus from inconsistent perspectives about them, in a way we are not from subjective observations.

To me, for whatever reason, it is often helpful to remember two things to recognize the difficulty in understanding observations of the objective world, and the deeper question of their validity as sometimes claimed by some proponents of radical empiricism and scientific method.  First, is the contrast between what we perceive as and intuitively accept as the baby’s immediate and very real experience of pain when it pulls its own hair, and the mechanisms (at least two of them—motor control and sensation) connecting the baby’s consciousness to the world which are necessary for the baby to experience subjective pain in relation to an objective event.  The world comes to us and affects us, imperfectly, through our senses and sensory nerves; and we go to and affect it, as imperfectly, through our motor neurons.  One may call the preceding description a subjective one, from the perspective of the baby’s experience.  Second, by contrast, attempting to observe or explain the same process from an objective viewpoint, might begin with the comparison often made between the brain studied by neuroscience, and the mind studied by psychology, which to be generous to a discipline, might both be studied by psychiatry.  From this perspective, it is the subjective experience of the person that is at arms’ length, and often doubted altogether as a valid or real or meaningful point of view.

Hubris, Original Sin, and Heuristics I: Methodology and Identity

Our task in this world is obviously, hopelessly beyond us; yet still, to find our meaning, fulfill our soul, and be true to our conscience, we must keep trying to accomplish it, and even believe we are on our way towards accomplishing it.  Hubris is our fatal flaw precisely because we cannot quite function without it; and original sin is hubris’s dark shadow, the price we pay for exercising hubris and ignoring the distinction between what we are and what we can see ourselves being; between the world and the spirit; between humanity and God.

This is the conundrum at the core of our existence; simultaneously captured and missed by Gödel, Escher, and Bach in their way; Plato and Descartes in theirs; Aristotle and Bacon in theirs; Socrates and Derrida in theirs; and each and every one of us in our own way.

How to enrage an epistemologist

Epistemology involves the nature of knowledge, justification, and the rationality of belief.  Many years ago, on the first day of graduate epistemology class with about five students in total, in response to the professor’s very first question to the class, I raised my hand and volunteered that I didn’t see how we could possibly be sure we know anything.  It seemed an obvious enough point to me, but it led to an awkward silence punctuated by people shuffling in their chairs and looking around in an effort to avoid eye contact, as if I’d done something inappropriate or possibly even indecent.  Despite the professor’s best effort to put on a neutral façade, it was immediately obvious from his reaction that I didn’t want to adhere to that position in class if I valued my grade.  Almost a decade later, when I returned to law school, a student from that class recognized me instantly and re-introduced himself to me.  Although he was friendly, it was clear he felt as awkward as an eyewitness to a crime might feel introducing himself to a guy he’d testified against.

The problem, if you are as slow as I was to see it, is this:  Almost axiomatically, epistemologists and students of epistemology believe it is possible to know things; because they spend their lives talking and thinking about what we can know.  Probably epistemologists self-select in the first place because something in their background made knowing psychologically important to them.  Certainly, for epistemologists who publish and teach, that psychological importance must be reinforced by their need to believe what they spend all their time doing is meaningful and important; and by the fact their job and career come to depend on others accepting the meaning and importance of what they do.

If, in fact, we can’t be sure we know anything, it appears to many people (ironically, including epistemologists) to be a very short step to saying epistemology is a waste of time, epistemologists are wasting their lives, and universities are wasting their money by hiring epistemologists.  I disagree with all of those conclusions; even though to this day, for the most part, I still accept the basic premise I expressed then.

To me, an epistemologist’s psychological difficulty in questioning their own ability to know seems an unusually pure example of how difficult it is for the human mind to escape hubris.  Another fairly neat example is how threatened many philosophers and mathematicians feel by the implications of Gödel’s proof.  But it’s a problem we all wrestle with in our lives.

To be clear, I love knowledge and reason, and believe they are important.  The fact we can master neither satisfactorily—let alone perfectly—is not an excuse for ignorance or irrationality.  Both hubris and original sin can be found deep at the core of even the most vehement opponent of common sense (along with any number of other psychological problems; some of the evillest acts in human history, e.g., Pol Pot’s annihilation of Cambodian intellectuals, and even the Holocaust, are closely linked to the rejection of knowledge and reason).

Our relationship with hubris and original sin may be compared to the glitter in a kaleidoscope:  the colors can be rearranged again and again but there is always a tantalizing suggestion of a pattern, and always a frustrating disorder to the pattern, no matter how hard we try to impose order or destroy it.

Free By Right: The Call (part 4 of 4)

I have always considered myself a moderate, albeit a passionate one.  Yet my experience as a citizen, of my governments and their enforcer-agents, is one of threat, nuisance, and invasion.  Agents do not protect me or most of the people I know from any harm by stopping actual, observable, specific crimes and threats against us.  Not in the schoolyard, not in the workplace, not in the marketplace, not in the home.  In my own experience, however limited, which is the only direct experience I have to go by, daily interaction with my government is dominated by the kind of dystopian lunacy illustrated in parts 1 and 2 of this article.  And in those rare times of need, Agents arrive too late if they ever arrive; take reports if they do anything; and then leave.  What else are they going to do?  When my cousin’s house was broken into, the police interrupted the burglary—then drove off, allowing the burglars to come back and complete their crime.  But what else could they have done?

Like most people, I’m what might casually be called “a law-abiding citizen.”  Not perfect by any means.  No better or worse than anybody else.  I’m as liable as the next person to make mistakes, fail to think things through, cut corners, or even act out.  But on balance, like most people, I have tried to obey the law except where and to the extent compliance is unconscionable.  Since becoming a member of the bar, I have been obliged to, and have, made heightened, active efforts to follow the law as much as I can, even when it drives me mad.  Sure, the government provides some services I value and use.  A few of them are services the private sector couldn’t provide better.  But mainly, overwhelmingly, I try to make a living, take care of my family, treat people fairly, take care of business, and live my own life productively.  I pay my taxes, some of which pay for those government services I use.  I don’t steal or hit people or vandalize property.  I try to live according to my moral compass, and as a rule, as best I can tell, I do all right by myself and others.  Not perfectly, but well enough.

I see most of the people around me, doing pretty much the same.  Sometimes they make me mad.  Sometimes I feel like they’ve done something unfair.  Sometimes they’re a pain in neck.  But mainly it seems like they’re focused on going about their own business, and when they do realize they’ve given offense or hurt somebody, most of them, most of the time, seem to want to address it.

So by any rational or moral system I can understand, the government should be leaving most of us alone most of the time.  Yet my government is in my business and in my face, every day, from dawn to dusk, in every aspect of my life, with little or no justification.  Necessarily, that means that police, code-enforcement officers, building inspectors, tax collectors, and every other variety of Agent is a problem to be avoided wherever possible.  They don’t serve or protect us, because they can’t serve or protect us, because we’re already doing a lot better on our own, for ourselves and others, than any government could possibly force us to do with all the regulations and Agents in the world. In my experience, most of us, agent and citizen alike, are pretty clear about the fact that the agents are just there to enforce the rules, regardless of how they came about or who or what they might benefit.

For so long, I’ve just tried to get on with my life, tolerating government the same way a horse tolerates a tick.  I’ve voted, found ways of living with the government, spoken my mind, and avoided adding to the injustice any more than taxes and policy forced me to.  And with other compelling duties to discharge leaving me exhausted, this was enough to preserve my soul and human dignity.  Even now, I could still put my head down, work hard, and live a comfortable little life despite my country’s paralyzed, corrupt, and ineffectual government.

But I believe people of conscience cannot avoid its call any longer.  We can no longer separate the call of our hearts from the call of our duty.  We should have listened before, when the call was quieter, more distant, less desperate, more remote.  We should have acted more, when fighting for liberty was a matter of principle, not as it has become, a matter of necessity.  We should have reckoned better, how much of ourselves was being eroded from us by the looming shadow of our government, before we found our backs to the wall.

I am listening now.  Listen and heed it with me.

(first posted on Medium 5 January 2017)