Dina d'malchusa dina and legitimacy of a government

The crux of the post is question 5 below. Those with ADD may skip to there.

Scenario: Bob did not pay his taxes. (Alternatively: Bob did not pay for speeding tickets.) The state of Louisiana came in and confiscated Bob's car to pay for his supposed debt. (Or, perhaps, it seized Bob's car under the right of eminent domain.) It is now selling the car to pay for Bob's debt.

Question: Should a Jew be allowed buy Bob's car on a state auction?

Normally, it would be objectionable to buy property that you know to be stolen. In the case of governmental confiscation, however, things are different. There is a concept of dina d'malchusa dina (DDD), "the law of the land is the law", which means that if the government imposes a tax on an individual, the individual has to pay that tax, since the law of the land is the law. Therefore, if he did not pay the tax and the government seized a car as a way of exacting the payment, we may buy that car.

A few questions may be asked.

1. If Bob owes Joe some money, can Joe just seize a random piece of Bob's property to get back his money? Can he sell the property at a below-market rate to attract a buyer, as opposed to selling it at a market rate and then, perhaps, giving Bob back the difference, if any?

2. What laws fall under DDD? There is a discussion among the rishoinim as to what the scope of DDD is. Some argue (specifically, Ba'alei Tosfos) that it only refers to taxes. Others (e.g., Ramban) that it refers to all laws beneficial to the society. (The last position can be looked at as begging the question. How do we know that a law is beneficial to the society? What if we disagree on its supposed benefit? What if we consider the law to be immoral?)

3. Can a government disqualify itself? I don't know how many rabbis would argue that Nazi Germany was a legitimate government whose laws one had to obey halachically (and I am not talking about the laws that went explicitly against Torah; I mean all the remaining laws). If the state of California makes bris milah illegal, do its citizens have to obey its laws?

4. What is the point of DDD? I.e., why is dina d'malchusa dina? Is it because the government is necessary to create peace in the society? Besides the fact that this is an arguable assertion (in reality, today, the government creates more discord and is actually much worse at maintaining peace and fighting crime than private competing agencies would be, especially if their customers were peace-loving people), does this mean that the government may only tax for the purposes of defense, but not, say, road maintenance? Is it because the government owns the land? While that was true back in the day, nowadays (especially in the USA) it's not anymore.

5. What is a legitimate government? How do we know that some agency that imposes a tax on individuals is a government and not a mafia?

Rambam writes on this:

When a king cuts down trees belonging to private people and uses them for a bridge, one is permitted to cross over it. Similarly, if he destroys homes in order to construct a road or a wall, it is permitted to benefit from it. The same principle applies in all analogous situations, because the laws of a king are binding. 

When does the above apply? When the coins issued by a king are the tender of the land. This indicates that the inhabitants of that land have accepted him and consider him to be their leader and themselves to be his subjects.

If, however, the coins he issues are not the tender of the land, he is considered to be a robber who takes by the force of arms. He and his servants are like a band of armed thieves, whose laws are not binding. Such a king and his servants are considered to be robbers in all respects.

So... The individual 50 States of the USA have no right to issue coin (under United States Constitution). They may not exercise it without amending the Constitution or seceding from the Union (both being unlikely). On the other hand, the States are not administrative entities (like counties, for example), owing their existence and legitimacy to the existence and legitimacy of the Federal government. In reality, it's the opposite: the States are considered by the Constitution to be sovereign entities.

Does this mean that the state laws (including payment of state sales taxes) are not covered under DDD?

Some may argue that seemingly they are. It's clear (an argument may go) that people consider the States to be legitimate governments. The coinage clause was merely a way to differentiate between a legitimate king and a robber in the ancient times. This halacha was written in the time when the concept of federalism did not exist. Furthermore, the concept of private coinage also did not exist (or was not widespread): surely, the Bank of Holland or private mints in England in the 19th century (whose coin was used as tender in retail) were not governments.

Well, first, one has to find a source for such reasoning among the Rishoinim. (Certainly, sticking to Rambam's definition would be in spirit of legalistic practices found in many instances in Halacha.)

Second, if we expand the definition of malchus this way, we might as well expand the concept of DDD.

Is the law of the king equivalent to the law of the land because there is something special about the law of the king? Or is their congruence merely an empirical observation? Are we supposed to follow the law of the king or the law of the land? Even though, historically, they have often been equivalent (just like the king's monopoly on coinage has been the fact), that does not have to be the case: the king's (or a democratic government's) law may contradict local custom, for instance. It may contradict common law. It may contradict natural rights and natural law, which may constitute a better definition of the "law of the land" in modern times.

If you read Rambam's section on DDD, in many cases he states "because such is a practice of the kings to...". Was he making merely an empirical observation? I.e., if such is a custom of the society, then such is the law of the land, that the king may do X. But what if the customs have shifted? Certainly, in our times, the rights of the kings (and governments in general) have been greatly diminished. So, if the specific royal practices are no longer the law of the land, why not the whole concept of royal (or democratic) authority as representatives of the people?

Perhaps, if we "modernize" the criterion for the legitimate government beyond minting money, we should "modernize" the criteria for the law of the land? Or, to focus on the government itself, maybe a modern legitimate government is such whose role and main activity is to defend natural rights of its citizens. Perhaps a government that does not do so (or, in fact, violates its citizens' natural rights) is not a legitimate government at all?


Finally: how do we know that a government has support of its people? As Lysander Spooner has eloquently argued in his book No Treason, it is notoriously difficult to prove that the populace considers its government (state or federal) to be legitimate. For instance, if a person votes in elections, it does not mean that he considers the government for which he votes to be legitimate. Maybe he votes because he is afraid what the alternative government may do to him and his family. (Rebbe Rashab urged his Chassidim to vote for Mensheviks in Russia. It does not mean he necessarily believed them to be a legitimate government. Maybe he believed the tzarist government to be a legitimate government, but he feared Bolsheviks coming to power more than Mensheviks doing so.)

Or, the way Spooner himself puts it, this is similar to a man who finds himself on a battlefield. Behind him are his country's special forces who will shoot him if he does not advance with his gun towards the enemy. Ahead of him are the "enemy" soldiers in a condition similar to his. If he does not shoot at them, they will shoot and kill him. The fact that he advances and shoots does not mean he supports this particular war, or his country, or the cause: he is merely trying to survive.

There is no difference between such a soldier using a bullet and a voter using a ballot to survive. Neither of the two men's actions are evidence of the legitimacy of their government.

Not to mention that at any given moment, hardly more than half of the country or a state votes for a particular government (since 100% never participate in elections). For instance, last I checked, the last governor of Massachusetts was elected by something like a third of the population.


A final point: if Bob acquired Joe's land, and there is a question as to the legitimacy of the transaction (i.e., it is not clear if he really acquired it or if he stole it), should we not take a more stringent approach and err on the side of caution, assuming that we may not buy the land from Bob? If Bob is currently in possession of the same parcel of land, should we not err on the side of caution and assume that he still owns it?

Anarchist defense and guerrilla warfare

Critiques of the idea of anarchist defense argue that the populace needs an organized standing army to protect its safety. (In fact, modern "strategists" argue that this army needs to invade the country’s enemies constantly, carrying the war to their shores, no matter how little effect and how much the blowback.)

They assume that if United States, for instance, were invaded, this is how the conflict between a defending anarchist army and attacking statist army would look:



But in reality, it would like something like the following, which is why, during his presidency, Thomas Jefferson argued that America needed no standing army to defend itself. If needed, an effective militia force could be quickly organized.



Of course, if you take away the people’s right to bear guns, no militia can be organized. The defense of the people remains in the hands of a monopoly that invades other countries and searches old ladies and little children in the airports but fails to defend against attacks on American soil despite multiple warning from the intelligence. The defense of private citizens from criminals (who do not obey gun-control laws) remains in the hands of inept police force.

Thomas Jefferson warns about too much Federal Government in the economy

In general, I like Jefferson in this series, even though it was quite centered on Adams.

Time preference and the wealth (or poverty) of nations

A few hours ago, I was sitting in an airplane after it had just landed and observing the people taking their belongings from the overhead compartments and proceeding towards the exit. Everyone was very polite. Some people who had fewer things could have rushed forward, but they did not.

The cause of this politeness was patience (among other factors). In other countries, like some Western European countries, or Russia, or Israel, people might be pushing and behaving aggressively. One of the reasons for this difference, I think, is cultural predisposition to time preference -- a need for an instant gratification vs. ability to put things off.

A recent article by a Harvard economist hypothesized a link between the wealth of nations and the languages they spoke -- in particular, whether they spoke a language in which the future tense was definitively expressed (e.g., "It will rain tomorrow") or one in which the future tense was expressed as a form of the present tense ("It is raining tomorrow"). The article was very bad mainly because the data contradicted it. For instance, English-speaking countries tended to be the richest in the last few hundred years. On the other hand, while modern Germany is relatively stable, Germans have suffered one of the worst inflations in the world's history in 1930s. I.e., there simply is very little correlation.

But the premise of the article is correct. Time preference is an extremely important factor contributing to the wealth and prosperity of nations. Nations in which saving and investing are valued over spending tend to prosper more. Not just the nations. Many know of the famous experiment in which children were given a choice: to eat a marshmallow right away or wait for ten minutes and get two marshmallows. Most children chose to eat a marshmallow right away. Some were able to wait. Some time in future after the experiment, researchers tracked down those children who had now grown up. Those that had been able to wait (who had low time preference) did much better in their personal and financial lives that those that had needed the instant gratification.

High time preference can lead not only to economic ruin, but also to health problems associated with overeating or addictive behaviors. It can also lead to crime: a study has shown that most criminals have tendency towards high time preference.

Interestingly, most governments do too. (Well, as someone who considers all governments essentially criminal, I am not surprised.) By their nature, governments tend toward "quick" solutions to problems. Slavery? Let's invade the South and spend hundreds of thousands of lives. (The so-called Civil War remains the bloodiest American conflict. Never mind that most European nations got rid of slavery through peaceful means, driven by changing economic conditions. Not to mention that the result of the so-called Civil War was freeing the slaves but enslaving the free for the next century and a half to come. American Republic was essentially destroyed by Abraham Lincoln.)

Poverty? Let's tax the rich and give money to the poor. Poor education? Let's give more money to the schools, make it difficult to expel students, make teachers have greater assurance in tenures. Poor people can't afford medicine? Unsafe working conditions? Long hours? Traffic accidents?

All these problems have very effective solutions that markets can provide. The only thing is: one must wait for them. Sometimes they may take years or even a few decades. But, it's worth it. Because the solutions will truly improve everyday life and will be a real increase in the lifestyle, an advance in civilization.

All government solutions, on the other hand, seem like they might solve the problem right away, but: a) they almost never do (in many cases they make the problem worse), b) they create a lot of side-effects in a form of perverse incentives and unintended consequences.

So, one can wait for the markets to come up with solutions to low wages (accumulated capital will lead to expansion of industry, which will lead to an increased demand for workers, increased competition for the workers and thus increasing salaries), or one can pass minimum-wage laws, which effectively increase the unemployment among the low-wage earners. (If hiring a worker X will give me profit of $5 and hour, but the minimum wage is $7 an hour, I will not hire anyone from this group of workers. So, instead of helping the workers who were earning "only" $5 an hour, the government made them unemployed. On the other hand, had the government waited, I would have maybe invested capital, increased efficiency of production, increased marginal profit from hiring a worker, and increased each worker's salary. If I decided not to, competition with other business owners who were doing the same thing would force me to do that or lose my employees and much of the profit.)

Any time you hear of some social ill and the proposed solution that uses government's coercion, think of this idea. The government is nothing but a crack addict's quick dose that does not help the problem at all; it makes it worse, makes the real solution more distant, less likely, and more difficult, and introduces a lot of side effects (which in turn need to be solved... and the cycle continues).

And, as a little bonus, this is the kind of people that made American great (can you imagine this kid as a bureaucrat?):

Clarence Thomas on the 14th Amendment

(Justice Clarence Thomas)

Over the Yom Tov, I've been obsessively thinking about the 14th Amendment. The Amendment basically allows the Federal Government to protect individual rights against an infringement by the States. The reason why an amendment was necessary for that is that before, the Bill of Rights only applied to the Federal Government, both in text and in logic. The logic is very simple: the States are the sovereign. They create an organization called Federal Government, whose job is to create a union between the States and preserve it, but the Federal Government cannot have any kind of sovereignty over the States themselves.

Here lies the problem with the 14th Amendment. Seemingly, it reverses the polarity between the States and the Federal Government. If the Federal Government can come in and enforce, say, freedom of religion, in Massachusetts (where, to begin with, it was the State's supposed right to enforce Protestant Christianity and tax all its citizens for the purpose of building Protestant churches), then the Federal Government is the sovereign, not the States.

Not only is this a problem from practical point of view (since it grants the Federal Government unlimited power to interfere with the States), but it's also a problem from the point of view of legal philosophy. Where does the Federal Government get the authority to do so? Was the 14th Amendment effectively a revolution that replaced a federal government with a national government? Was it, furthermore, a conquest -- with the Federal Government suddenly becoming an independent entity ("it's alive!") and then conquering the States and subjugating their sovereignty?

It may be troublesome for a libertarian that the States have no checks on their power except their own constitutions (although that is arguably not worse than the Federal Government having an unlimited power; it's much easier to move to another state; furthermore, states can compete with each other), but the legal legitimacy of the 14th Amendment is equally troubling.

In his opinion on a 2010 case concerning gun rights, Justice Thomas significantly clarified the issue.

The general background for the case is described here.
The specific analysis is here.
You can read the opinion here (search for "Opinion of Thomas, J." several times to get to his opinion in the text; for the crux of the matter go to page 39 of the opinion).

Briefly, in his opinion, Thomas argues that the 14th Amendment is necessary for the preservation of the Union and the Constitution, since it protects the legitimacy of the individual States' governments, which is the source of the legitimacy of the Federal Government and the Constitution. Since the States derive their moral power to government from the purpose of protecting people's rights ("...and to protect these rights the governments are formed"), when the States fail to do so, they lose their legitimacy. As a result, the Federal Government and the Constitution also lose their legitimacy. Therefore, it is a responsibility of the Federal Government and the Constitution, as the preservers of the Union, to make sure that the States protect individual rights.

What about the sovereignty? Well, no, the States are still the sovereigns. But, when the States created the Union, they alienated some of their rights for that purpose. For instance, the States agreed not to exercise their rights to coin money or make independent treaties with foreign governments, delegating those rights fully to the Federal Government. The same goes for imposing tariffs on each other: the States gave up that right, in the context of being in the Union; furthermore, they authorized the Union, under the Commerce Clause, to "regulate interstate commerce", including making sure that the States cannot impose the tariffs on each other.

So, Thomas's view explains why the Federal Government has a right to enforce individuals' rights against the States: it is an act of protecting the Union and the Constitution from moral and legal illegitimacy.

This view is novel and very interesting for a libertarian, because it does not take for granted the moral and legal legitimacy of either the Federal Government or a State's government.

Furthermore, it provides legal justification for the benign mechanism of protection of the individuals' rights against the States' tyranny. And, finally, it explains that the 14th Amendment does not need to be interpreted as an inversion of the sovereignty between the States and the Federal Government.

So much for being an idiot, eh?

[Many people consider Justice Thomas to be an idiot because he does not participate in the oral arguments. In an interview, Thomas explained that he does not participate in the arguments because interrogation of the lawyers adds nothing to the case for him. For the most part, Justices comes to the oral argument having already decided on the case, and most of the discussion happens between the Justices behind the closed doors anyway. His job, Thomas says, is not to interrogate the lawyers, but to vote on the cases and write the opinions.

I disagree that it's not important to interrogate lawyers. First, one must give the lawyers a chance to present their case and defend it (thus, one must approach the case with an open mind as much as possible; certainly, it may not always be feasible, but to make a doctrine out of the made-up mind is not acceptable, in my opinion, for a judge). Second, oftentimes, other Justices' opinions are swayed by the arguments. For instance, Justice Kennedy is well known as a swing-vote. Also, even the liberal Justices' opinions may be swayed. For instance, in a recent case, Justice Alito (a Conservative) swayed a Liberal Justice Breyer's opinion on a case regarding firing a teacher from a religious school. (The case was regarding whether a Lutheran school may fire a teacher who sued the school in a secular court, which is against the Lutheran doctrine. Alito asked the question: Can a Catholic school fire a priest who became married?)

Having said the above, just because I disagree with Justice Thomas's decision not to speak, I cannot agree with the popular view of him as an idiot. The above opinion of his is a good example why not.]

Three answers to the vast majority of liberal arguments

I think if there was a way to answer in one sentence to the vast majority of liberal arguments of why the government should do X or Y, this would be the best answer from constitutional point of view:


(source)

In the famous case of United States vs. Lopez, it was argued whether the government has powers, under the Interstate Commerce Clause, to make it illegal to carry concealed firearms on school campuses. The argument that the General Solicitor (the government's lawyer) presented was that carrying guns on school campuses disrupts education, which eventually has an effect on commerce of the nation. Therefore, in an effort to preserve the national commerce, the government has a power to ban guns on the campuses.

The defense lawyer argued that the Congress has to make findings explicitly linking the banned activity to the interstate commerce, not a hypothetical that might affect interstate commerce. Furthermore, he argued, it is not within jurisdiction of the Federal Government to fight crime on campuses or protect education — that remains a State's prerogative, and when the Government tries to interfere, it is crossing into the State's jurisdiction.

Justice Kennedy asked whether the Federal Government can make it illegal to throw a firebomb into a school house.

Before the lawyer had a chance to answer, Justice Scalia said the text quoted above. Sometimes the concept of the limit on the government's powers means a limit on the government's powers to do good things as well.

Or what one considers to be a good thing.

This, then, is another argument that one can throw at the liberals. The reasons why the government should not regulate people's private lives in an effort to improve the society are:

1. It is pragmatically bad, because the government is plagued by all the problems of a central planner and cannot predict (as nobody can) how to distribute resources most effectively, how to regulate without creating perverse incentives and unintended consequences, etc. In short, when the government interferes, it makes things worse. Opposite from what it was trying to do. Therefore, distribution of resources and improvement of society is best left to private entities competing on a free market. This is an economist's argument.

2. It is a violation of people's natural rights. Even if something is a good thing, you can't violate natural law, in the form of people's natural rights, to achieve this good thing. It is naturally illegal. The function of the law is not to improve society, but to resolve conflicts. When the government attempts to do the former by interfering with people's private lives, it is not only misusing the function of the law but is in fact going against it. This is a libertarian legal philosopher's argument.

3. It is unconstitutional. The people simply have not given the government such powers in the Constitution when it was written. If people wish to do so later, they can do so by ratifying an Amendment. But until that has been done, the Constitution must be interpreted according to the original intent, because the original intent shows which powers the people and the states have clearly ceded to the government.

For instance, imagine I give you a job of cleaning my house under the arrangement that you only clean in the specific places that I told you to. Then, if you want to enter room A, you have to make sure I have given you explicit instructions to do so. If "situation has changed" and, say, there was a spill that went under the door into room A, you can try to call me and obtain my permission to enter the room A. But until I have given you an explicit permission to do so, it is unlawful for you to enter my property without a permission. The same way, under the Constitution, the government has been given a limited list of enumerated powers that the individuals and the States have delegated to it. If the government tries to do something that it was not delegated to, it is infringing the States' and the individuals' rights. This is a conservative constitutionalist's approach.

This is a good video about Justice Scalia:

Bach is Back

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