Monday, July 02, 2012

Sovereign Domains

In examining the decision in the Obamacare decision (and I will use the pdf page numbering, not that of the Court), it is important to keep in mind what I have gone through in two prior posts about Sovereign Powers and the domains of them.  I utilize the works of Fred Saberhagen's SWORDS Series to illuminate this, and it is worth going over the functions of Swords as each of them is a Sovereign Power and that defines their Domain of power:


Who holds Coinspinner knows good odds

Whichever move he make

But the Sword of Chance, to please the gods

Slips from him like a snake.

The Sword of Justice balances the pans

Of right and wrong, and foul and fair.

Eye for an eye, Doomgiver scans

The fate of all folk everywhere.

Dragonslicer, Dragonslicer, how d'you slay?

Reaching for the heart in behind the scales.

Dragonslicer, Dragonslicer, where do you stay?

In the belly of the giant that my blade impales.

Farslayer howls across the world

For thy heart, for thy heart, who hast wronged me!

Vengeance is his who casts the blade

Yet he will in the end no triumph see.

Whose flesh the Sword of Mercy hurts has drawn no breath;

Whose soul it heals has wandered in the night,

Has paid the summing of all debts in death

Has turned to see returning light.

The Mindsword spun in the dawn's gray light

And men and demons knelt down before.

The Mindsword flashed in the midday bright

Gods joined the dance, and the march to war.

It spun in the twilight dim as well

And gods and men marched off to hell.

I shatter Swords and splinter spears;

None stands to Shieldbreaker.

My point's the fount of orphans' tears

My edge the widowmaker.

The Sword of Stealth is given to

One lonely and despised.

Sightblinder's gifts: his eyes are keen

His nature is disguised.

The Tyrant's Blade no blood hath spilled

But doth the spirit carve

Soulcutter hath no body killed

But many left to starve.

The Sword of Siege struck a hammer's blow

With a crash, and a smash, and a tumbled wall.

Stonecutter laid a castle low

With a groan, and a roar, and a tower's fall.

Long roads the Sword of Fury makes

Hard walls it builds around the soft

The fighter who Townsaver takes

Can bid farewell to home and croft.

Who holds Wayfinder finds good roads

Its master's step is brisk.

The Sword of Wisdom lightens loads

But adds unto their risk.

(end of the song)

Federalism is a means of dividing Sovereign Power into different Domains and then placing those Domains in whole or in part in different parts of government.  The US Constitution tells which branch of government gets which power, and that power is part of the Sovereign Power: it is that Power of a Nation expressed via its State through its government.    All Nations are equal in the Sovereign Power, there is no greater or lesser amongst them as they all express that Power because they are Nations.  Like individuals some Nations are larger than others, some have greater resources than others, and some are blessed by geography while others are accursed by same.  These things, like our own natural liberty in the realm of individuals, do not matter as all Sovereign Powers are equal amongst all Nations.  Indeed the Sovereign Power is bound up with the very individuals that create the Nation as a Nation only exists where there is the basis for it and that basis does not start on high, with the Nation, but on low with marriage.

When looking at the Obamacare decision it is necessary to also remember that the Domains of the Sovereign Power to each branch of government are discrete: they are defined and exist within a defined space and are separated from each other.  In this distribution within a federalist system there are 'checks and balances' that are not only amongst the three branches of federal government but also between the federal government, the State governments and the people who are the source of the power that is being used by these governments.

For Chief Justice Roberts there is a major decision that was made in the following way in the second page of the decision:

The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11– 15.

There is a difference between paying a tax and paying a penalty: a tax is levied upon a transaction while a penalty can be levied upon an action alone not just a transaction.  Both are attached to doing activities, however, while the 'mandate' is levied against those doing nothing.

These topics cover two separate Domains of Power granted to Congress, which are the taxation power and the commerce regulation power.  Let us take a look at these powers in the Constitution in Article I:

Section. 7.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.


Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;


To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;


To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;


To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section. 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.


No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken. [Amendment XVI see below]

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.


Passed by Congress July 2, 1909. Ratified February 3, 1913.

Note: Article I, section 9, of the Constitution was modified by amendment 16.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Congress gets Domains of taxation and regulation of commerce and they are discrete and differentiated in that taxation (and any other revenue bills) must start in the US House of Representatives.  Penalties can be non-monetary (such as prison sentences or hard labor) and those can start in either House of Congress, but anything that requires taking money from the people or the States must start in the US House of Representatives.  Thus the labels are important as those labels that the US Congress assigns for taxation indicate that such bills that garner revenue started in the US House of Representatives, not the Senate.  It may seem a minor quibble, but the Affordable Care Act started in the US Senate, which can neither levy taxes nor have penalties with monetary revenue generation for the federal government.  If the argument is that this is a tax, then the bill should be struck down due to its lack of legitimate originating body.  Within the US Congress the people have determined that it is only the House which can originate such bills (they can be started in the Senate but then must be redone as a House bill, passed in the House, then passed in the Senate as a House bill).

As the US Constitution is a limiting power system (as the power outlays in the main body and Amendments IX and X enforce) there is a limitation in the power of taxation:  "...provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

This is the Common Defense and General Welfare clause and it relates directly to taxes, duties, imposts and excises for generating revenue.  In referring to 'the United States' instead of 'the several States', the taxation power relates to the entirety of the Nation taken as a unit: it is not a power that allows it to be broken down to separate between individual States or amongst the people.  When Chief Justice Roberts refers to "The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate." he is trying to construe that health care insurance is something that is treated for the Nation as a whole and yet there are other ways to garner health care other than through insurance.  Health care is garnered  by and amongst individuals who live in States, and those States each have separate jurisdiction over those things not delegated to the federal government, and it can be done through any means an individual wishes which includes sole reliance on charitable institutions.

As the Common Defense and General Welfare are put together, they are considered a single object defining the taxation power.  The taxation Power Domain starts broad in Section 7, but is refined in Section 8 so that it cannot be used tyrannically.  Because both Common Defense and General Welfare of the United States relate to the Nation as a single whole, any taxation power is administered equally across all States as a single whole.  Taxes are levied upon activities and they are in a clause in Section 8 that deals with activities of trade: taxes, duties, imposts and excises.

Even further there is the forgotten part of the General Welfare clause that is added to Common Defense and General Welfare: " pay the Debts and provide for the common Defence and general Welfare of the United States;"  By using the word 'and' there is the direct connection of these three objects: Debts, Common Defense, General Welfare.  These are treated as a single object due to the 'and' between them: taxes, duties, imposts and excises are to be collected only for these things.  The Debt of the United States is its federal government's debt.  Similarly the running of the Common Defense for the Nation is done by the federal government.  The General Welfare of the Nation is done via external trade and assuring regularity of internal trade amongst the States which is a power granted to government.

Does healthcare fall into any of these categories?

1) It does not fall into the Debt.  It is incurred by individuals in the States, under the regulatory apparatus of the States.  Healthcare does not fall into this object category.

2) It does not fall into the Common Defense.  Healthcare is done as in internal and individual purchase for individual needs for medicine, medical examination, medical care and medical treatment.  If a pandemic requires federal intervention because it acts like an invading enemy, then the US military will deal with it.

3) It does not fall under the General Welfare.  The General Welfare deals with trade that is between Nations or between States and is attached to the regularity of imposts, duties, and excises, which are all specific taxes dealing with trade.  It is their specificity to trade, and the negative power structure of the overall Constitution that limits the federal government to these trade based forms of taxation for trade (otherwise they would just be taxes without restriction within this Domain of Power).  As healthcare is purchased locally and is not an item of inter-State trade (until such time as States wish to regularize this amongst themselves as the several States), then there is no entry point to tax it at the federal level.  If it was an item of inter-State trade it would be limited to duties, imposts and excises, not other forms of taxation.

In each category for the Domain of the Taxation Power granted Congress, health care is not seen as part of its Domain because it is not for the Nation taken as a whole or for the trade amongst States either.  In trying to set up regulatory law on health care, the Congress has created law where it has no Power Domain.  Because there is no Power Domain for Congress to exercise power, there can be no definition of a 'shared responsibility' as that responsibility is, indeed, not shared but falls to individuals and the States.

Yes this is a condemnation of Medicare, Medicaid and any other attempts for the federal government to have anything to do with healthcare.  That includes offering tax write-offs and subsidies via the tax code.  By having no Power Domain in this realm, Congress has not the power to act.  For the Affordable Care Act to be a tax it must have the proper starting point (the US House), the proper subject (the United States as a unitary whole), the proper object (Debt, Common Defense, General Welfare) as taxation is the activity.  This is due to the SVO sentence structure of the English Language and when reading the US Constitution the drafters were mindful of their language and the internal logic of the sentences so that they had proper Subject, Verb, Object agreement.  For the Affordable Care Act to have its implementation be the Verb of taxation it must have the proper Subject and Object to complement it.

It lacks those things as a tax.

In this I have disagreement with Chief Justice Roberts: he cannot parse out a sentence in the US Constitution.

As Chief Justice Roberts didn't reference the Commerce Clause in regarding taxation, it is worth noting that 'the several States' wouldn't cover the Affordable Care Act as there are no 'several States' seeking to implement a system of regularizing health care amongst them.  Even if there were States doing that and the federal government had any role to play, it would be limited via the explicit language in the General Welfare Clause to duties, imposts, and excises.  Thus all Clauses dealing with 'amongst the several States' do not apply to the Affordable Care Act.

Do note, however, that the regulatory part of the of the Commerce Clause would allow for penalties up front, such as trading in contraband goods.  Penalties in the Commerce Clause can go directly to non-monetary ones, while penalties in taxation are only for the non-payment of taxes: taxes are not penalties but a cost put on the activity of trade.  Taxes are the overhead of trade, in other words.  When Congress speaks of penalties, they can be applied immediately to illegal trade, while penalties for taxes are for non-payment of taxes.  This is a distinction with a difference as the penalties show up at different phases of the activity involved and have different types of consequences and severity within the limits of the separate Domains of Power.  Both Domains do cross on activity by type, yes, but they have different functions based on types of activities: it is very hard to tax illegal trade thus it requires a different set of penalties, while payment of taxes is done on legal trade and the non-payment of taxes (the inactivity of paying the tax overhead) has the stated purpose of generating revenue , first, and penalizing non-payment, second.  Thus one can garner penalties for illegal trade (or legal trade done illegally) and the other is for legal trade, done legally but not garnering the given tax overhead for that legal trade.  In the case of legal trade done illegally anyone doing that can face direct penalties for doing same and have tax non-payment liabilities also show up.  A single action can be a breach of two separate Domains of Power for different reasons.

A further restriction on the Tax Power is:  "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken."  If the Affordable Care Act is a capitation tax that is apportioned by any other means than by Census or income (Amend. XVI) then it is not given to be within the Tax Power Domain.  The Affordable Care Act offers up this 'tax' only to those who do not purchase health insurance: it is not done by Census or income.  Therefore if the basis for the Tax Power Domain is used, then it cannot be done via this Clause, either.

On page 5 of the decision... amazing how much analysis you can pack into a single paragraph on a single page, isn't it?  This section deals with Chief Justice Roberts and Justices Breyer and Kagan:

(a) The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.” Art. I, §8, cl. 1. Congress may use this power to establish cooperative state-federal Spending Clause programs. The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs. Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17. “[T]he Constitution simply does not give Congress the authority to require the States to regulate.” New York v. United States, 505 U. S. 144, 178. When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism. Cf. South Dakota v. Dole, 483 U. S. 203, 211. Pp. 45–51.

Notice how the Justices left paying for the Common Defense out of the Clause?  Yes they are trying to make a point but the Object of the Clause is compound and self-reinforcing giving it added definition, thus refining the scope of the power.  And what is the view for not upholding the Medicaid changes?  Fascinating to read this taking the entire ACA into consideration "The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs."

The entire ACA is attempting to force a large change in how each State operates.  If the States don't agree to it then, like in Medicaid, its legitimacy is questionable.  Mind you, this is reading the exact same programmatics which is the ACA into changes into Medicaid which is a federal to State system of money transfers with strings attached.  Just like ACA.  The ACA goes further in purporting power to the federal government to set up 'health care exchanges' in States that don't voluntarily agree to set up their own.  By the logic of the 3 Justices involved, that would be outside the bounds of the Constitution.

Do these Justices even bother to think about what they are writing and the context in which they are writing it?  Talk about compartmentalized thinking...

At that point, due to the similarity of structure and Power Domain that ACA has with Medicaid (voluntary agreement structure State-federal), then the obvious way to get a 7-2 decision to strike down the ACA is just not to agree to it at the State level.    That is because the ACA does foist off a lot of structure onto the States without trying to get the States to agree to it, per State.  That is the same structural problem with Medicaid that has just been ruled out of bounds for the federal government to do.  And the moment one State opts out of all of the ACA, then it is the federal government no longer treating the States or the people equally which then should bring down the entire structure completely.

Mind you, if the States started doing that with Medicaid, something similar might be in store for it, as well.  Really, with these three Justices on the five part of 5-4 striking down, and the other 4 wanting a complete striking down, the first case with ACA of a State just refusing it entirely should get you that 7-2 majority for the ACA, which would invalidate the entire structure due to equal application of the law and this not being something set up amongst the several States but put upon the States by the federal government.

So, by page 5 on the upholding side, there is the Chief Justice being unable to parse a sentence, and he is joined by Breyer and Kagan in being unable to see the similarly structural qualities of the ACA to Medicaid, and the result of what would happen if a State does not voluntarily accept the ACA... which is the point of the entire case brought by the States.  Hmmmmm... just how stupid are these people in black robes, anyways?

Hey, I haven't even gotten to the logical inconsistencies around page 38 of the pdf.  You don't have to go that far to find stuff that is most disturbing in this decision.

Since so many are looking at a more general preface on page 12 of the pdf, lets see what the general view of the Court is:

Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. “Proper respect for a co-ordinate branch of the government” requires that we strike down an Act of Congress only if “the lack of constitutional authority to pass [the] act in question is clearly demonstrated.” United States v. Harris, 106 U. S. 629, 635 (1883).Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

May it be said that it is not the job of the Court to save the politically chosen representatives from their own inability to actually craft a law and that it is also not the job of the Court to shift the Power Domain of an act of Congress from one venue to another as the origination of that power is not that of the Court but Congress.  Trying to change those Power Domains to make a law 'work' is not the job of the Court: it is the job of the Court to make sure that the laws crafted within a given designated Power Domain of Congress or the President are Constitutional.  It is not permissive reading that is going on, but changing of Power Domains that are not given nor granted to the Court to do.

Yes those labels do have meaning and designation of which Power Domain the crafted laws is made to fall under.  The Court is no more given nor capable of doing that than is the President: only Congress can do that.  If they didn't do it right, the idea isn't to change the Domain but to send it back to Congress and tell them to do it right.

The Court cannot protect the people from our choices and they cannot shield Congress from its own incapacities and must point them out so that the Nation can get Constitutional laws drafted by the Congress in the proper Houses of Congress, properly ratified that do not seek to impose power in Domains not granted to the federal government.  When labels are changed by the Court to save the Congress from its incapacities neither the people nor the Nation are served and the Court has failed to do its job as it is given to do.  This isn't about policy but simply doing the job one has volunteered to do in the way you have agreed to do it.

Sunday, July 01, 2012

Progressivism's New Man

Progressivism has been about the expansion of government authority and power into realms that it has been barred from in the United States both via Constitution and via custom.  This type of law goes back deep into the English law system as seen under Bracton (as I explored in this post), in that there were few written laws in England and many local laws of custom as explained thusly from Bracton on the Laws and Customs of England:

[010] Though in almost all lands use is made of the leges and the jus scriptum, England
[011] alone uses unwritten law and custom. There law derives from nothing written [but]
[012] from what usage has approved.
4 Nevertheless, 5it will not be absurd to call English
[013] laws leges, though they are unwritten, since whatever has been rightly decided and
[014] approved with the counsel and consent of the magnates and the general agreement
[015] of the res publica,
6 the authority of the king or prince having first been added
[016] thereto,
7 has the force of law.8 9England has as well many local customs, varying
[017] from place to place, for the English have many things by custom which they do
[018] not have by law, as in the various counties, cities, boroughs and vills, where it will
[019] always be necessary to learn what the custom of the place is and how those who
[020] allege it use it.

In the 13th century England had local laws (leges which were unwritten) as well as a modicum of National laws from the Monarchy and Ecclesiastical law from the Church.  Thus, as a whole, those who sat as judges in England had to be able to differentiate between what issues were to be decided and which venue they belonged in and how to then interpret the law so as to come to a consistent and just ruling.  What Bracton called for was the institution of written legal rulings so as to build a body of work that would allow for future judges to see how past decisions were made and attempt to create some regularity in the judicial system so that there would be a regularity in social understanding of the law and its three domains.  This is the concept that would prove to be a foundational one in the English Common Law and the US law systems (Civil, Military and the Civil/Admiralty) for criminal and non-criminal cases that would also add layers of State and Local law to federal law.

The United States has as part of its make-up not just a multi-tier code system in the federal realm, but a multi-layered multi-tiered system when the States and localities are added into the mix.  Indeed one can break local law while not breaking State nor federal law, which means that accountability to the legal code must be understood at all levels of legality.  This also forms a multi-layered and multi-tiered judiciary with recourse to higher levels of authority up to the level of the State and to the federal at the Supreme Court of the United States (SCOTUS).  The federalist doctrine embedded in the US Constitution is to put as much power (and thus law making) into the hands of the States and the people by restricting the scope and breadth of the federal system.  The rationale for this is that the finer grained the power structure at its basis, the less that coarser grained systems need to interfere and that problems are best solved at the personal and local level, not at the federal and Nation State level.

What the Progressive Era sought to do was to start shifting this power pyramid so as to put the National level into more control over individuals and States via multiple means.  One of the major ones is direct taxation on income, something that was expressly forbidden by the Constitution as it can be used as a punitive system against those who are merely out of political favor.  Another method is to expand the scope and power of the federal government to intervene on things like international drug trafficking via items like the Shanghai Treaty and through the use of internal tax stamps where stamps would never be issued and, thusly, no one could actually obtain the goods without the stamp nor safely acquire a stamp for such goods in the first place.  From these modest beginnings of corruption the US tax code has grown over the decades to become a behemoth of rules that were put in place due to political favoritism and punishment for the disfavored.  Likewise regulations to safeguard food and medicines (arguably a part of assured inter-State trade so that citizens could know what was in the products they were getting from other States) were layered over with laws against medications of various sorts to usurp local jurisdictions for such goods.  Instead of merely assuring such goods had a measurable purity and that they would have National safeguard in transport through districts that banned the sale of them, the inverted idea was to 'regularize' the patchworks into a whole: regulation had changed its meaning from assuring movement of goods through hostile jurisdictions to prohibiting their sale Nationally.  'Regulation' had gained a new meaning in federal trade realms that was far different than the old 'regularizing' and harmonizing of codes between States and became one of imposing laws on trade between States at the federal level.

This inverted pyramid of power, that is one where law flows from the top-down, is not new nor Progressive in nature as it has been the lot of mankind to have such inverted power structures for thousands of years.  Indeed the first records of governments in all societies, no matter what their geographic location or ethnicity, is that of this form of top-down government.  They have typical names to them of: dictatorship, monarchy, oligarchy, and empire.  These Nations are ruled by a State apparatus that concentrates power in the few and distant, not recognizing that transactions and administration is all local and distributed.  To early civilizations there is a form of order that comes from these centralized authoritarian States in that they put down a regularized form of law.  The negatives are that such law systems often tread on local custom, they are not amenable to localized input from those not affiliated with the regime, they are brittle to change and they are tyrannical because of these artifacts.  Wherever you hear the new or Progressive meaning of 'regulation' you are hearing the old word of tyranny.

Modern 'regulatory' States governing Nations have been tried in various guises called Communist and Fascist, along with variants of the Anarcho-Syndicalist and National Socialist types, and all are socialistic in their scope.  The generalized vision is that society is reformulated to be governed by a centralized body composed of Party Elites that then tell what everyone else should do.  These systems can have differences, say in the 'worker's councils' of the Anarcho-Syndicalist variety, but they all culminate in a central organized body running the government and the economy, and thus society, by a given doctrine.  It is, in short, a deeply religious form of government as it tolerates no other doctrinal views nor variation of anything which makes it totalitarian in scope.  Progressivism comes from this formulaic background in America (and partakes in great part in founding Anarcho-Syndicalism in Spain and Italy) and asserts that Marx's revolutionary goal will be achieved by evolutionary means.  These means include the slow erosion of capitalist economies, culture, and States through the methodology of applying socialized doctrine to regulate segments of the economy and increase control of the Nation State government over society in that doing.  It is fascinating to see that socialism and Socialists see capitalism and Capitalists as corrupt, but the only way they can get a corrupt system is by corrupting it themselves as Socialists in the name of socialism.  Which does beg the question: if capitalism is so corrupted, then why do you need to corrupt it further via socialist methods?  Those from the First International would actually criticize these Socialists on these grounds and that anything done to 'soften' or 'humanize' capitalism would draw out the agony of the capitalist States and that the greatest good that Socialists can do is to reinforce capitalism, push it to its few good ends (which even Marx enumerated) so as to get to the great socialist change faster.  An evolutionary approach was seen as making things worse for a longer period of time and could wind up with an even worse system which was State Capitalism which removed the minimal benefits of private capitalism and put in place a tyrannical system of State control that had no socialist goals.

Be that as it may, the Progressive system of socializing segments of the economy which directly impacted individuals (banking via the Federal Reserve, retirement via Social Security, medicine via Medicare and Medicaid, residential housing via Fannie Mae, Freddie Mac and Ginnie Mae with the last to destroy the local lending market) was started in the 1910's and carried out all the way to President Bush (43) and Medicare Part D and President Obama's multi-pronged attack on the medical system via private insurers, student loans and shifting regulatory regimes from merely restrictional to those seeking to destroy large sections of the energy sector of the economy via 'green' energy and jobs.  The tax code was already blossoming, but further regulation of industry was needed via acts on labor, occupational safety and health, the 'environment' and taxation on specific goods and services (usually by rubrics of pre-existing regulatory regimes).

Many have stated that the end result is that at any given moment you are violating a host of regulations, laws and other rules at multiple levels of government who see fit to try and manage you via such laws.  As these law formulations are dense, complex and not well stated to the point of being incomprehensible to the common man, the lawyer has been elevated to a position of high status to just try and figure this stuff out.  Ditto the tax preparer.  This is a state of being that has a sociological description to it:

Environmental questions on how crime is enacted are perhaps regularly asked in criminology, but elaborated theories that explain behavioral variations are rare. Sometimes, routine activities theory (Cohen and Felson 1979) is used to answer such questions. According to this theory, crime arises from patterns of ordinary legal activities. When these patterns lead to motivated perpetrators and unprotected targets being present in the same place at the same time, the necessary and sufficient conditions for criminality are fulfilled, and crimes will occur. By this theory, crime is thus a question of “systematic coincidence.” An objection to this approach is that it does not take the goal-oriented behavior of many perpetrators sufficiently into account. For many of them, committing crimes is an everyday routine. Moreover, many criminals do not merely encounter unprotected targets by accident but consciously go in search of them, as is shown by the findings of many ethnographic studies (e.g., Wright and Decker 1997, 1994). Rational choice theory (Cornish and Clarke 1986) is also frequently used to answer environmental questions on crime. This theory is not concerned with criminal motivation either, but in this case because it assumes that every person is in principle prepared to commit crime. Rational choice theory regards every form of behavior as a goal-oriented choice directed toward accomplishing objectives. The point of departure is that, after weighing the advantages and disadvantages of various alternatives, a choice is made which is optimal given the aim (benefit maximization). Rational choice theory itself is abstract and requires supplementary empirical content through specification of the relevant aims and choice situations. To be able to apply rational choice theory to questions of how crime is enacted, a supplemental theory is therefore often necessary with respect to the choice situations with which individuals are confronted as they make decisions about when, where, how and against what target an offense will be committed.

When regulations so overwhelm good sense and regular trade, when they intrude upon the smallest of activities in daily life, then the natural instinct is to seek the unprotected means around such regulations and to consciously seek them out.  Progressivism, and all totalitarian regime types, seek to control so much of the human interactive environment that the object of actually just living day-to-day requires criminal outlook and intent: the authoritarian system creates criminals. What that creates, as described above by Wim Bernasco, is Homo Criminalis: Criminal Man.

The centralization of power and authority does not get an enlightened State but one that becomes more barbaric over time.  Regulations at the highest level of the Nation are the hardest to overturn due to the power of the State's ability to gather income resting behind the enforcement of such regulations and laws.  No matter what the stated set of goals for such laws and regulations are (be they to 'help the poor' or 'clean up the environment' or 'regulate banking') their end result is a profusion of rules and penalties that become denser, more complex and harder to avoid breaking with each and every page added to the mass of the regulatory code.   At each point of government below the Nation State level, there is less income and backing for such laws until you get to the local level of representative government (when you can get representative government and apparatchiks aren't merely appointed from the State).  At the lowest level is your self-governance which is the point of making the plethora of rules, laws and so forth.  Your personal self-governance is to adhere to that of the Nation State's dictates, and you are to have very few choices in your life at all.  For you to survive in such circumstances the rational viewpoint on a day to day basis is to work around the regulations, rules, codes and laws, and circumvent them just to be able to feed yourself and your family.

No matter how 'fair' the tax system is purported to be, it withdraws productive wealth from the private economy and puts it in the unproductive hands of bureaucrats who seek to expand their sphere of influence and power not out of malice but out of bureaucratic necessity to justify their job and those that help to expand the power of the bureaucracy are elevated. This is best described by Pournelle's Iron Law of Bureaucracy (from Jerry Pournelle):

Pournelle's Iron Law of Bureaucracy states that in any bureaucratic organization there will be two kinds of people: those who work to further the actual goals of the organization, and those who work for the organization itself. Examples in education would be teachers who work and sacrifice to teach children, vs. union representative who work to protect any teacher including the most incompetent. The Iron Law states that in all cases, the second type of person will always gain control of the organization, and will always write the rules under which the organization functions.

Whenever we hear of cuts that are to be done at the most local of levels, who's jobs are threatened?  Why, at every turn it is the jobs of teachers, policemen, firefighters, and librarians.  Never is it the job of the line supervisor, the secretary, the back office staff, the functionaries, the paper-pushers or those who have entrenched themselves in useless jobs in the bureaucracy.  Not only is the Progressive State tyrannical, but those working in the State apparatus have a vested interest in increasing the power of the State via that very apparatus.  Thus the Progressive State is pernicious not only for the nominal expansion of government power and control mechanisms, but the control mechanisms themselves begin to become the point of the State.  For the USSR the saying was that they had replaced the Czar with the Commissar:  the tyranny of the King for the tyranny of the Bureaucrat and Apparatchik.  And as any level of bureaucracy sees the need to add more layers to itself via various reasons (to increase 'compliance', to increase 'efficiency', to increase 'productivity) what happens, instead, is that additional layers of bureaucracy are created to entrench power and isolate it from scrutiny via not just the public but by the State as well.  Thus those who create the monstrous bureaucracy will, in time, become its victims although the progenitors do not live to become direct victims, their children or great-grandchildren do, and their society becomes a direct victim immediately.

What those is the bureaucracy do not comprehend is that they become as much Homo Criminalis in regards to other parts of the bureaucracy, and they are subjected to the same problems that they inflict on others.  Those who seek more power and authority, more backing for their control systems are, themselves, ground down by it and their very humanity and civilized patina starts to rub thin.

This is not an advanced or modern State of being, but one more akin to the Celestial Emperors of China where the bureaucracy controlled the Nation and the nominal King was more a figurehead and had very little power over the bureaucrats who decided who would be amongst their number and who would not.  While China had many great technologies, the rule of stability that was part and parcel of a wide-ranging bureaucratic State saw technological advances as threatening to the stability of the overall system.  In theory the King or Emperor had absolute power, but the fact on the ground was at the local level the delegated power was used to reinforce the stability of the Empire and actually hinder technological change.  Military technology would still change due to advances by adversaries, but these then became heavily regulated by the bureaucracy in turn.  Yet when thousands, if not tens of thousands of soldiers are cut down due to new technology the very existence of the Empire required advancement.  Even when the top or ruling class was overturned or the Empire invaded successfully, the system of powerful bureaucrats tended to remain as the new rulers also wanted stability.  Until, of course, a radically different culture with highly advanced technology appears that has not the top but the middle in its sights, and then the very guarantors of stability become the victims of that very stable system.

That is the end state of being for such systems: decay, stagnation, a feeling of inward looking support, and a stultification of society so that a very few arts become lauded because nothing dangerous can be created from them.  In the USSR the various factions were a bit more aggressive at the sub-State level, but they all lacked excellence in production, excellence in engineering and excellence in productivity because they did not reward those things but, instead, merely making quotas with whatever quality of goods would pass muster.  Mao in China could kill millions to get compliance and thought he could end the opium trade by just killing everyone in it and their families... and their friends... and yet that trade continues to this day.  China under Mao had a terrorized populace who were forced into absurd schemes of backyard industry (which failed) and then put into factories when he changed his mind.  It is one of the few Nations that has consciously sought to change its demographics via a 'one child policy' and is on the road to demographic suicide in less than a century after implementing such policy.

The tell-tale sign of an overly bureaucratic State appear at the low end, not the high, however, with the Black Market.  The Black Market isn't just men selling dubious goods in back alleys or fake Rolex watches on a blanket on the sidewalk in New York City, but encompasses a wide range of activities from legal, semi-legal to illegal in nature.  Wait, a legal Black Market?  Isn't that a contradiction in terms?

No, a legal Black Market is a way to utilize the rules so as to avoid other parts of them, such is the case with tax evasion.  Tax evasion skews the tempers of Progressives in a twist because it is people using rational means to analyze the system to 'game' it to their advantage while going against the very things the system is purported to do.  I looked at this from the Petty corruption of tyranny and in that I found an article by Pierre Lemieux from the Globe and Mail in Canada in 1994 on the subject of their VAT in Canada called a Goods & Service Tax:

As budget day nears, politicians of all stripes warn us that tax evasion is rampant in Canada. Before he started talking about tax increases, Finance Minister Paul Martin had declared that "hundreds of thousands of otherwise honest people ... have withdrawn their consent to be governed" by escaping in the underground economy.

The problem is that the politicians do not seem to draw the right conclusions. Pressed for money -- actually, nearly bankrupt --, the federal government, as well as some provincial governments, has decided to clamp down on the underground economy. Revenue Minister David Anderson has declared a war on tax evaders.

After shopkeepers defied the law by openly selling smuggled cigarettes in Saint-Eustache, Qué., Bloc Québécois leader Lucien Bouchard came out against what he sees as a new state-cheating culture. He apparently thinks that citizens should always obey the rulers. Indeed, the governing class shows a rare unanimity in bringing the Canadians back under the government's rod of iron.

Yes, we hear similar problems whenever governments choose to spend unwisely, and their answer is always the same:

First, how did tax evasion develop among so docile a people as the Canadians? The answer lies, of course, in the tax burden they have to shoulder. Tobacco, on which federal tax rates have increased by 150% over the last five years, is only the tip of the iceberg. The total tax take by all levels of government now amounts to nearly 40% of the Canadian gross domestic product. If we include the deficits, which are just future taxes, government takes close to one half of what people produce and earn in this country. In two words, tax evasion is a response to tax invasion.


Galloping regulations are another factor. Some of them come with taxes: Small businesses now have to perform time-consuming GST accounting, and prepare a complex quarterly report. I don't know if we ever were a nation of shopkeepers, but we are certainly becoming one of tax collectors and accountants. Other forms of regulation -- labor regulations, for instance -- make it much more simpler and cheaper to go underground, for consumers and suppliers alike.

The second question is, How could we ever accept such a tax burden in the first place? One hundred or 200 years ago, the great Western thinkers to whom we owe whatever liberty we have left would never have thought this could happen in a free country.


The third question relates to the state's reaction. Politicians argue that the individuals who do not pay their "fair share" thereby increase the tax burden of other citizens. The main thrust of the coming federal and provincial budgets may well be to increase the effective tax burden under the guise of "fair shares."

This is a naïve cliché which assumes that political and bureaucratic processes naturally lead to the optimal amount of taxes required to finance unanimously demanded public services. What actually happens (at least if we agree with the Public Choice approach in economics) is that the government will take as much as it can, it will charge what the traffic will bear. Governments satisfy minority pressure groups and buy votes through spending. If Canadians in the underground economy were to start paying their "fair" taxes, government revenues and expenses would just increase by the amount of the new taxes. In this perspective, the underground economy is a useful restraint on Leviathan, and a benefit to all taxpayers.

Taxed Enough Already?

Art Laffer indicated that up to a certain level of taxation governments will get increased revenue, but after that point revenue actually decreases per increase in taxation.  Taxes are avoided.  From personal experience I can say that I was welcomed as an outsider by various small businesses in Canada when I visited there during this period as they did not have to pay a tax when foreigners purchased from them.  Taxes were avoided via every legal means possible and the more loopholes the politicians put into the system, the more taxes were avoided by the exploitation of those loopholes beyond just the expected favored class involved.  Germany has seen other artifacts, like people taking their money to foreign banks so as not to face taxation for it in Germany, and Germany got pretty irate about that but could do nothing about it as other regulations were preventing such tracking not just inside Germany but in other Nations, as well.  That fellow that scored a crate of fake Rolex watches and selling them on the streets is nothing compared to the weekly income that can be shipped out of a Nation to avoid taxes in those Nations with onerous tax policies.  One gets you red in the face politicians who feel cheated by a system they created, the other gets a small time operator in the slammer for a few months.

Every Nation has a Black Market, which is to say every Nation has goods they wish to restrict and don't want their people to purchase.  Even worse is that most Nations have internal taxation to try and put a penalty on purchasing certain items (liquor, cigarettes) that has a tax stamp on it, and when that happens there are those willing to fake, forge or forget the tax stamp to sell you the good in question and just slightly undercut the fully taxed cost of the good in question.  Hezbollah ran a cigarette smuggling ring from its quarters in Toronto, going to North Carolina to purchase untaxed cigarettes and then sell them in Detroit for a net profit of $10m/yr. remitted to Hezbollah, until they got caught, of course.  The behavior that drives this is rational avoidance of taxes to get a desired good, and when the taxes become high enough, less than legal to illegal means that can deliver that good at a lower price then become something sought after by normal people who consider themselves as not doing a truly illegal activity, just avoiding taxes.

In Poland under the Soviet Bloc the academics and researchers found they could piece together an IBM PC that would do more than their Soviet supercomputer for only a few thousand dollars and a few trips to West Berlin to buy components, not a full computer.  Within 6 months they had a full IBM PC and used the Soviet system to heat their room.   Goods get smuggled in via familial associations, via forms of smuggling, via Black Market money exchanges on the street that give a much better deal in local currency than the State shops do.  Saudi Arabia has smugglers smuggling guns out to terrorists and then finds the same smugglers are smuggling prohibited video cellphones back into the Kingdom for the teenagers who want to know what each other look like before arranging a date.    Similar happens in Iran, Pakistan, Afghanistan, China, Russia, Argentina, Brazil, Mexico (although there it is more of smuggling worthwhile goods out to get Black Market arms), the US and Canada.  As seen under Mao you can even make the penalty that of death, not mere taxation and criminal prosecution, and you still can't get rid of the Black Market.

Any Black Market is a warning to the government and the people of the State involved: you are treading on thin ice.  To get public morality requires more than just punishment but the putting forth of a positive moral view and ideology that tells why such morals are positive, what their effects are and how they can be utilized to better society.  Punishment of individuals is a necessary means to protect society, but it is not the creation of a positive public moral environment and, when used to gain that environment, starts to unravel the very public morality it is meant to uphold by creating rational actors seeking prohibited goods at a low cost.  The sales point of such public laws that enforce a moral good via the negative powers granted government is that they lead to a better functioning society.  Like the Laffer Curve that is true, up to a point, and then you get diminishing returns for each new law passing itself off as supporting a positive moral good.  The hard case to make is that something should be legal to purchase, taxed normally, and that you agree to work with your fellow man to create organizations to help others see the problems of using such goods or services, and to reinforce society so that those goods and services become less popular, gains fewer users and slowly dies out.

That is the unwritten law, the leges, and Americans no longer do that as we have come to believe that the written law is all.  And yet all of society, all of civilization, is formed on the leges and common morality and decency, espoused by the majority working towards more people so as to lessen the effects of immoral behavior and consumption of goods leading to immorality.  You can legislate for morality all you want, yet you do not get a moral society from it and, instead, you get bureaucrats.  Really, do you want morality enforced by bureaucrats?  It is so cheap and easy to say 'there ought to be a law' instead of doing something yourself to address the wrongs of society, and that is what Progressives want: your non-involvement in society.  Then they can make up all the rules you have to follow, no thought required from you, until they stop you from doing the necessary things in your life.

Then you become just what they want: Homo Criminalis.

Stop asking government to do the things you should be doing.

These things aren't done because they are easy, they must be done because they are hard and you are the best person to do them.  Only you can create a positive moral environment for yourself and society.  And no law ever passed can stop you from doing that, even if it threatens to kill you... and then you know the State really does see doing moral good as an evil, and it has become, itself, a pure evil in that doing.