I can understand the desire to protect one’s business from new government carbon mandates and from noxious new regulations over all derivatives hedging purposes (seriously I can understand it, even as many on the left now harbor deep suspicions of business), but doesn’t buying control over government through the GOP kind of cut against the libertarian, free-markets message?

Koch Brothers Roundup (major news reporting on Rancho Mirage gathering)

Why can’t our supposedly adamantly libertarian billionaire Koch brothers put their money where their ideals are, say by establishing partnerships and other organizations that DON’T require government-granted legal entity/ limited liability privileges? (Simply creating obstensibly libertarian pressure groups like Cato that refuse to criticise corporate statism doesn’t count.)

Where are our leading libertarians who are forming:

• The Buck Stops Here Clubs, or Businesses for Partnerships and Personal Liability and Responsibility?
• Businesses, Shareholders, Investors and Executives Who Don’t Buy Votes, Politicians or Judges Clubs?
• Businesses that Don’t Do Business with Government Clubs?

It’s not as if government:

• MAKES investors choose limited liability corporations that mask responsibility,
• makes corporations fight for government favor, including to pretend that corporate legal entity fictions need disembodied ‘voices’, even though their shareholders, managers and employees all have their own, or
• makes prominent ‘libertarians’ do shallow, one-sided work for fairly naked corporate rent-seeking ‘Astroturf’ outfits.

(I feel increasingly grateful for the individuals who so generously devote their time and resources to LvMI! Jeffrey Tucker, are we trumpeting our own funders loudly enough? They deserve our thanks AND patronage!)

The Middle East gets its popular revolts, but we just have more elites stirring up and hiding behind decidedly paｒtisan animosity (hello, George Soros!). Alas, our tribal nature makes it difficult for us to perceive our real enemies, and inclines us to internecine warfare over the wheel of government to the hard work of building community.

For those of you who haven’t seen it, the LA Times February 6 article Koch brothers now at heart of GOP power is worth a gander and some pondering — and just a start at looking at billionaire brothers David and Charles Koch. Useful charts on vote-buying by the Kochs are here and here. I’m not an opponent of any industry, per se, or of the Tea Party movement, but there’s far too much uncomfortable truth to the Left’s criticisms of the Kochs. Why can’t they publicly criticize government and corporate rent-seeking, or work publicly to build community? The secrecy itself is poisoning the cause they profess to believe in (see more links below).

See Jane Mayer’s New Yorker piece, Covert Operations: The billionaire brothers who are waging a war against Obama.

Koch Billionaire Bros. and Wealthy Meet to Usurp Democracy, Greenpeace Sends Message, others Arrested

Uncloaking the Koch Brothers Trillion & Billionaire Oil Regime

Law professor Lawrence Lessig (once Stanford, now Harvard), the internet’s most famous lawyer and founder of the Creative Commons open licensing endeavor, has turned to issues of open and clean government (as I have previously noted), in part in his role as director of the Edmond J. Safra Center for Ethics at Harvard.

In this concern, he remains refreshingly nonpartisan. Here are excerpts of what Lessig wrote on November 11 at Huffington Post:

Many of my friends have been puzzled that I have not been a strong critic of the Tea Party. Indeed, quite the opposite, I stand as a critical admirer. That means that while I don’t share most of the substantive ends of many in that movement, and I strongly object to the extremism of some, I am a genuine admirer of the urge to reform that is at the heart of the grassroots part of this, perhaps the most important political movement in the current political context.

My admiration for this movement grew yesterday, as at least the Patriots flavor of the Tea Party movement announced its first fight with (at least some) Republicans. The Tea Party Patriots have called for a GOP moratorium on “earmarks.” Key Republican Leaders (including Senator Jim DeMint and Congressman John Boehner) intend to introduce a resolution to support such a moratorium in their caucus. But many Republicans in both the House and Senate have opposed a moratorium. Earmarks, they insist, are only a small part of the federal budget. Abolishing them would be symbolic at best.

This disagreement has thus set up the first major fight of principle for the Tea Party. As leaders in the Tea Party Patriots described in an email to supporters,

For two years we have told the media and the rest of the country that we are nonpartisan and that we intend to hold all lawmakers to a higher standard.

This, they insist, is their first chance for that stand with the new Republican Congress. And the Tea Party Patriots have now mobilized their list to pressure Republicans to support this first and critical reform in the new Congress. …

Earmarks are not bribes. But they are an essential element in the corruption that is Congress today. As Washington Post reporter Robert Kaiser describes in his fantastic book, So Damn Much Money, they have become the key to an incredible economy of influence that effectively enables lobbyists to auction too many policy decisions to the highest special interest bidder. That economy won’t change simply by eliminating earmarks. But eliminating earmarks is an essential first step to starving this Republic-destroying beast.

A government in which access can be bought, and influence paid for is not the Republic our Framers intended. They wanted a Congress “dependent,” as Federalist #52 puts it, “upon the People alone.” But through both Democratic and Republican administrations, Congress has evolved to become “dependent” not upon “the People,” but upon “the Funders.” Earmarks are a critical element in that dependency. And if we’re going to end government captured by an elite, we have to end that dependency.

This fight is just the first in a series that this more principled wing of the Tea Party movement can expect. For the truth is that not everyone on the Right shares their passion for ending the corruption that now rules Congress. During the rise of the GOP in the 1990s, some of the rights suggested that it was just “socialist” to question the power of the rich to buy influence over our government. The ideals of the free market, these GOP leaders insisted, should include a free market to buy government policy.

That idea is heresy to anyone standing in the tradition of Adam Smith, Friedrich von Hayek, Milton Friedman and Ronald Reagan. (Friedman, for example, insisted on a free market within the rules set by the government; he didn’t believe in a free market for those rules.) Yet that idea governs too much of both the Republican and Democratic parties of the past 20 years. It is an important and valuable development for the Republic that a powerful and passionate political movement on the Right makes ending this free market in government influence a core plank in its platform.

But if the Tea Party is really to be “nonpartisan,” then it needs to stop limiting itself to speaking to Republicans alone. Important Democrats share at least some of their reform ideals, including otherwise liberal Democrats, such as Congresswoman Jackie Spear (D-CA). The movement should rally Members from both the Right and the Left for any reform that is right (as in correct). The Tea Party Patriots’ reform to abolish earmarks is plainly that.

Now, of course, I have no illusion that my admiration for the Tea Party can be returned. A movement against “elites” is not likely to listen to a Yale educated Harvard Professor. But if that movement is to be as central to the restoration of the American Republic as its most passionate supporters believe, then it needs to recognize that while we don’t share common ends, we do face a common enemy. Special-interest-government is anathema to both the true Right and the limping Left. Progress would be to work together to end it.

I received the attached in my email inbox from Oathkeepers.org; I have modified the format, but not altered any of the text.

I consider it thoughtful and well worth reading – though Stewart Rhodes fails to mention the how statist corporations have led the drive to strengthen the federal government and gut the Constitution:

 IS Constitution Day a Celebration, Or a Memorial?

By Stewart Rhodes, Founder of Oath Keepers]
OathKeepers.org

Sept. 18, 2010

Yesterday, September 17, was the anniversary of the signing of the Constitution in 1787, at the Constitutional Convention in Philadelphia. According to the notes of Dr. James Machinery, one of Maryland’s delegates to the Convention, it was on the last day of deliberation that a lady asked Benjamin Franklin “well Doctor what have we got, a republic or a monarchy?” to which Franklin replied, “a republic, if you can keep it.”

Can we keep it? That has always been a central question. But another very good question is whether we still have a Republic to attempt to keep, or have we already lost it? Or more exactly, has it already been stolen right from beneath our noses?

Do We Still Have a Republic To Keep?

Thomas Jefferson, in his Autobiography of 1821, described the federal judiciary as:

[T]he corps of sappers and miners, steadily working to undermine the independent rights of the States and to consolidate all power in the hands of that government in which they have so important a freehold estate.

Truer words were never spoken, and that description also fits perfectly the political, academic, corporate, and banking elites of both major parties who have joined the judiciary in the . steady, relentless undermining, consolidation of power, and theft of the very sweat of our brows that began before the ink was barely dry

As for the banking elites, Jefferson had this to say:

If the American people ever allow private banks to control the issuance of their currency, first by inflation and then by deflation, the banks and corporations that will grow up around them will deprive the people of all their property until their children will wake up homeless on the continent their fathers conquered.

We are now very near that point, with our currency on the verge of being completely devalued and what is left of our wealth sucked out of us, and our children already born into monstrous debt as indentured servants of the government supremacist elites – both Democrats and Republicans – who lord over us with increasingly brazen disdain and treat us like so many heads of cattle, as Angelo Codevilla so clearly spelled out in his recent essay, America’s Ruling Class – and the Perils of Revolution (http://spectator.org/archives/2010/07/16/americas-ruling-class-and-the/print).  Code villa’s essay is highly recommended reading, by the way.

What is left of our Republic? What is left of our Constitution? Not much.

A National Government of Unlimited, UN-enumerated, Undivided Powers

The Founders gave us a dual sovereignty republic.  That means states as much sovereign within their sphere as the national government is within its sphere, and a national government of limited, enumerated, and divided powers, where “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In Federalist 45, James Madison (widely considered the ‘father of the Constitution”) promised the American people that:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Does that sound like what we are living under today?  Hardly.  The design of the Founders’ has been turned on its head.  With the aid of complicit judges – that “corps of sappers and miners” – who willfully misinterpret the Commerce Clause to grant Congress the power to regulate literally anything, we now have ruling elites who will admit of no restraints on national power.   In Justice Thomas’ dissent in Gonzales vs. Raich (http://www.law.cornell.edu/supct/html/03-1454.ZD1.html), he stated the obvious:  

Respondents Diane Monsoon and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything-and the Federal Government is no longer one of limited and enumerated powers … By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power. (emphasis added).

Because the Raich case involved medical marijuana, conservatives, including Justice Scalia, joined the liberals on the Court in championing a gross expansion of Congress’ power to regulate commerce, which is now practically unlimited.  Much like the Parliament the founding generation rebelled against, Congress now claims a power to legislate over us in all cases whatsoever, down to the minutest details of our daily lives.  Just ask Speaker Pelosi or any other Congress-critter where in the Constitution Congress is delegated the power to regulate all that it does.  The answer will be “are you serious?” because, based on the Supreme Court’s rewriting of the Commerce Clause, they presume that all power not expressly and specifically prohibited by the Constitution is granted to the national government.  In other words, the exact opposite of what our Tenth Amendment actually says and the exact opposite of what Madison promised would be the balance of power between the national government and the states. 

The claimed power of the federal government now obviously extends “to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”   And the Tenth Amendment may as well be re-written to read “all powers not expressly prohibited to the United States by the Constitution, nor expressly reserved to the states or to the people, are delegated by it to the United States.”

Destruction of State Sovereignty, State Military Power, and Circumvention of the State Legislatures and Governors During Emergencies

Following up on the absurdly gross expansion of Congress’ claimed power to legislate anything and everything, the federal government then uses the Supremacy Clause to supersede state laws.  If Congress can regulate anything, that means that any regulation it passes, or any edict by unelected bureaucrats in some federal agency, is now the supreme law of the land, and trumps state law.  And the states are powerless to stop it (or so the story goes).   Witness the recent claim by the federal government that the Supremacy Clause prevents Arizona from doing anything meaningful about the illegal aliens crossing its borders despite federal failure to handle that problem.

But the elites who control all three branches of the federal government are not content to simply gut state legislative power.  They have also gutted the military power of the states, the power of states to deal with emergencies, and the lines of sovereignty clearly spelled out in the Constitution when it comes to use of federal power within a state.

The Gutting of the State Militias

The Founders’ answer to that ancient question of “who shall guard the guardians?” was that we, the people, would be our own guardians, in our state militias.   Students of history, they clearly saw the dangers of standing armies, and that is why the Second Amendment to the Constitution declares:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

As Dr. Edwin Vieira has pointed out numerous times, the use of that term “necessary” is only used once in the entire Constitution, and it is used in reference to the militia because that is the one institution that is necessary to the security of a free state.   This is so because when the military power is held in the hands of the people, in militias constituted by the body of the people trained and armed, they cannot be tyrannized.  And frankly, no people can long remain free unless so armed, trained, and formed into militias.  It is necessary.    See Dr. Vieira’s excellent article Going to the Root of the Problem, available at http://www.thedailybell.com/839/Edwin-Vieira-Going-to-the-Roots-of-the-Problem-PART-1.html

And the militia was intended to comprise the great body of the citizenry, trained and equipped with arms, not a select militia.  Yes, both by statutes and by clauses within the state constitutions the militia is still defined as the body of the people.  For just one example, the Constitution of Montana, Article VI, Section 13, Militia, still declares:

(1) The governor is commander-in-chief of the militia forces of the state, except when they are in the actual service of the United States. He may call out any part or all of the forces to aid in the execution of the laws, suppress insurrection, repel invasion, or protect life and property in natural disasters.
(2) The militia forces shall consist of all able-bodied citizens of the state except those exempted by law.

But what has happened?  Where are the actual militia forces of Montana, made up of all able-bodied citizens except those exempted by law?  Certainly you can say that the people of Montana still constitute those militia forces, but they are not organized, trained, equipped, nor do they muster to train or to deploy.  When were they last called up by either the Governor of Montana or by the United States?   As with nearly all of the states, those militias have been allowed to whither away till they are but a distant memory.  As actual military forces worthy of that name, they exist on paper only.  What is left is a potential pool of unorganized militia, which may or may not be equipped, armed, and trained, depending entirely on the actions of the individual citizen.  That pool of the population is not formed up into units (except for the occasional private militia associations that have formed in an attempt to revitalize an actual militia), and those units have not been called up by anyone in living memory.

By means of slow and artful manipulation, and by means of the plain, simple laziness of the American people, we no longer have an actual, physical citizens’ militia in each state, made up of the able bodied citizenry actually trained, equipped, and organized with citizens coming together in a public militia.  Instead, the militia was allowed to atrophy and die with few exceptions.  And even with the exceptions, such as the Ohio Naval Militia, (http://navalmilitia.ohio.gov/) or the few State Defense Forces, they are usually unarmed, which makes no sense.  Just how are they supposed to “repel invasions” or “suppress insurrections” without arms? 

Instead of militia made up of the body of the people trained and armed, we have only the National Guard.  But what is the National Guard?  Or more to the point, where is the National Guard?   By and large, the National Guard is merely an auxiliary or reserve for the standing Army, and our Guard units are deployed overseas with increasing frequency.   They are most often unavailable to help here at home. The Founders never intended for the militia to be used abroad as an auxiliary for the standing Army.  Article 1, Section 8 contemplates the militia of the several states being called forth “to execute the Laws of the Union, suppress Insurrections and repel Invasions.”  The militia was meant to be used domestically, to keep the peace here at home, while the Navy and Army were to be used abroad, against external foes.

FEMA, NORTHCOM, and the Council of Governors Fill the Void

As Dr. Vieira points out, with the states having no real state militias, and with the National Guard sent abroad as an auxiliary to the standing Army, the states are left defenseless and weak, unable to provide for their own security, and unable to care for their own citizens during emergencies.   And into that vacuum, predictably, steps the federal government in the form of FEMA, DHS, and NORTHCOM, with standing Army troops now deployed here in the United States to do the job that is supposed to be done by we the people in our state militias. Once again, the Founders’ design has been stood on its head. 

What did the founders intend to be the relationship of the states to the federal government when it came to use of military force within the states in times of emergency?  Article IV, Section IV of our Constitution states:

The United States shall guarantee to every State in this Union a Republican form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Notice that even when it comes to aiding a state that is facing domestic violence – i.e. an insurrection aimed at overthrowing the free, elected government of that state – the national government cannot enter a state with military force unless invited in by the state legislature or by the governor of the state if the state legislature cannot be convened.  The “Application of the Legislature, or of the Executive,” is a necessary prerequisite.  That requirement is a reflection of our dual sovereignty system, where we are supposed to have sovereign states that are every bit as sovereign within their sphere as the national government is within its sphere.  And it is a reflection of what it means to have a “Republican form of Government” which means a government by consent of the governed, consisting of a representative legislature, executive, and a judiciary established pursuant to the constitution of that sovereign state, and a preservation of the balance of sovereignty maintained by our national constitution. 

And what military institution was to be called forth to defend states against domestic violence (such as riots and insurrections) upon the application of that state?  The militia of the several states.  That meant that even if a state requested federal intervention in its internal affairs, the military force sent in was to be the militia of the several other states, not the standing Army.  As we saw during Hurricane Katrina, where units of the Utah National Guard (and reportedly a few other states as well) refused to participate in gun confiscation, the closer we stick to the ideal of a citizens militia, the less beholden to the federal government and the less susceptible to pressure to go along to get along will those troops be.  It is far easier to pressure a career military man to obey unconstitutional orders than it is to pressure a National Guardsman who already has a day job back home, and won’t care much if he is dismissed.  The same would go for an actual state militia member.

But Article IV, Section IV is all but ignored today.  Instead, the federal government has divided the United States into ten regions with both FEMA (which is now part of DHS) and NORTHCOM sharing those regions for both emergency and domestic military deployment.  See http://www.fema.gov/about/regions/index.shtm

Add to this the new Council of Governors, required by the Fiscal Year 2008 National Defense Authorization Act which stated, “The President shall establish a bipartisan Council of Governors to advise the Secretary of Defense, the Secretary of Homeland Security, and the White House Homeland Security Council on matters related to the National Guard and civil support missions.”  The selection of the governors to sit on that council almost exactly matches that FEMA/NORTHCOM ten regions map.   Those hand picked governors are to “advise” the federal Homeland Security/homeland military/FEMA/White House leviathan on actions it will decide to take within the states.  Even if those ten appointed governors could consent on behalf of each state – which they cannot (that being a violation of Article IV, Section IV) – their consent is not even sought – only their advice.  And that advice can be taken or simply ignored.  

In keeping with the nationalization of everything, FEMA and NORTHCOM increasingly act as though the states don’t even exist (except as possibly convenient sub-divisions), conducting regional training operations involving standing Army, Reserves, Guard troops, FEMA, DHS, and private contractors within the ten regions with nary a call to the governors, let alone seeking permission from the legislature of any state, and assuming perpetual command of the state National Guard units.  See NORTHCOM, NORAD, Guard, Inextricably Linked    (http://www.ng.mil/news/archives/2010/03/032510-NORAD.aspx)

As that National Guard article states:

NORTHCOM has a unique degree of the jointness sought throughout the Defense Department. A mix of National Guard, Reserve, Coast Guard, active duty component, senior civilians and contractors fill the command’s ranks.

The command partners with Canada and Mexico and with Defense Department, civilian and private agencies – more than 60 organizations.
Nary a mention of any requirement to seek the permission or even participation of the various state legislatures or state governors.   The major players are federal or federalized assets and foreign governments.   And, foreign troops are increasingly invited to participate:

A feature of recent exercises has been foreign military involvement.  The Iowa Vigilant Guard exercise involved troops from Mexico, Japan, Australia, South Korea, Bahamas, and Senegal.  The Montana Vigilant Guard exercise will include the participation of Kyrgzstan.  http://publicintelligence.net/montana-vigilant-guard-2009-exercise/
The foreign troops were invited in “to learn about how the U.S. military communicates and works with civilian emergency responders.”  http://www.army.mil/-images/2009/06/22/42394/index.html
This is all being done as part of the National Guard State Partnership Program.  According to the National Guard 2010 Posture Statement: 

The National Guard State Partnership Program (SPP)
establishes enduring and mutually beneficial partnerships
between foreign countries and American states through the
National Guard. This program is an important component
of the Department of Defense’s security cooperation
strategy, the regional Combatant Commanders’ theater
engagement program, and the U.S. ambassadors’ Mission
Strategic Plans. 
http://www.ng.mil/ll/Congress_Reports/2010%20National%20Guard%20Posture%20Statement.pdf

Thus, Montana is partnered with Kyrgyzstan, Alabama is partnered with Romania, Alaska with Mongolia, Arizona with Kazakhstan, Arkansas with Guatemala, California with Nigeria and Ukraine, and so on.  For the full list, go here: http://en.wikipedia.org/wiki/State_Partnership_Program
Do you suppose the state legislatures or governors had any say about which country their state was “partnered’ with?   To borrow Pelosi’s favorite saying, “are you serious?”  So, what, exactly, are the state governors really in command of, as the supposed commanders in chief of their state militia forces?  Not much.  And how sovereign are the supposedly sovereign states?  Again, not much.  Not anymore.

We now have a national government of nearly unlimited de facto powers, grown like a metastasizing cancer far beyond the bounds of anything foreseen by even the most skeptical of Anti-Federalists from the Founding era.  All actual, physical and structural powers of any real meaning – legislative, military, legal, law enforcement, and economic – are consolidated in the hands of the federal government.   And we are not even talking about the hydra-like overlay of international law and international unelected agencies and untouchable international “officials” that are also being imposed up us by means of treaties, executive partnerships (such as the supposedly now defunct Security and Prosperity Partnership of North America   http://en.wikipedia.org/wiki/Security_and_Prosperity_Partnership_of_North_America) and other constitutionally dubious mechanisms.
The states retain only what paltry “powers” the federal government deems it convenient to leave with the state, with those powers and assets always subject to nationalization or preemption at the pleasure of the national elites.  Just look at how easily and completely the peace officers of Arizona are being outgunned and outmanned by the Mexican drug cartels now boldly occupying whole sections of that sovereign state to the degree that those areas are now “no go” zones for Arizona citizens who wish to stay alive. 

And to what degree do the states have any form of independent, real money (i.e. backed by gold or silver)?  Again, not by much.  In fact, zero.   As Vieira’s Going to the Root of the Problem article points out, this is the second great weakness of the states, right along with having no militia, and thus no security.  The states are financially and militarily impotent, and thus their populations are ripe for federal intervention during emergencies or during an economic collapse.  With no preparation and no ability to keep the peace, the people of the states (except perhaps the more hardy rural states) will be desperate for aid during emergencies and will likely welcome even “martial law” with open arms during a severe enough emergency. 

To borrow from the canned speech phrase used by every President’s state of the Union address, the state of the federal government is super-strong, the state of the states is pathetically weak.

With the concept of dual sovereignty, limited government power, and even national sovereignty nearly wiped away, and with the states weakened to the point of failure during even modest crisis, all we have left as a check on government abuse is our Bill of Rights.  But those last restraints are also under relentless assault.

The Gutting of the Bill of Rights

How is the Bill of Rights being gutted?  Here are just a few examples:

The absurdity of “free speech zones.”   All too often, citizen protesters are now confined “at a safe distance” in ‘free speech zones” during public political events.  This whole nation is supposed to be a free speech zone!  And any public sidewalk is your public forum so long as you don’t block pedestrian traffic.  But that principle is now under attack, along with the rest of the First Amendment, and you are now likely to be threatened with sound wave or microwave weapons, as occurred during the G20 meeting, for merely exercising your right to peaceably assemble, petition your government for a redress of grievances, and speak out freely.  You can only do so safely in a government approved, cordoned off “free speech zone” far away from the anointed beautiful people who cannot be bothered with ugly, dirty protesters.  And in addition to the blatant violations of free speech being carried out, we have attempts to further chill and limit speech with proposed legislation such as the Disclose Act, which would have mandated disclosure of donors to small non-profit advocacy groups but would have exempted existing large organizations, and by means of targeting people and organizations with being placed on a “list” of “extremists” by the DHS or by the Southern Poverty Law Center (essentially now part of DHS).

The watering down of the Second Amendment.  The Second Amendment was plainly meant to preserve the military power of the people.  It was meant to protect and preserve the right of the people to keep and bear arms of military utility, so that they may form the militias “necessary for the security of a free state,” with sufficient power to “execute the Laws of the Union, suppress Insurrections and repel Invasions” – as Article 1, Section 8 contemplates.   While the Supreme Court in the Heller decision finally, at last, recognized the obvious fact that the Second Amendment protected an individual right to bear arms, and that the people were expected to provide their own arms for militia duty, it failed to recognize the obvious related necessity that they thus be able to keep and bear arms of military utility (which the Miller case at least contemplated).  Instead, the Heller Court told us that we have a right to keep and bear only those weapons that are “commonly kept for lawful purposes,” whatever that means.  Such a standard leaves intact nearly any and all restrictions, registration, prohibitions on types of firearms, and even leaves intact prohibitions on the actual bearing of arms outside our homes (imagine a similar prohibition on free speech, free press, or assembly outside of your home being found “constitutional”).  The Court carved out protections for nearly any regulation or prohibition on types of weapons, and any restrictions on the keeping and bearing of arms short of a total ban.

The gutting of the Fourth Amendment.  The Fourth Amendment, born out of the Founding Generation’s experiences under the egregious writs of assistance, has now been carved with so many exceptions that it is a laughable farce which can be circumvented at will by crafty government lawyers, with nearly any kind of warrantless search deemed “constitutional” under one exception or another, resulting in the FBI issuing itself “national security letters” to search without a showing of probable cause to an independent judge, sneak and peek searches of our homes, random vehicular “your papers please” check points for all manner of excuses now common, routine upholding of warrantless searches by police under a plethora of exceptions (most based on ever expanding zones of “officer safety”), and with the most extreme claim being that the Fourth Amendment doesn’t even apply at all to warrantless surveillance of Americans when it is done in the name of national security, as in the case of the NSA domestic spying, with the rationale that such is surveillance of the battlefield in the war on terror.

The gutting of the Fifth and Sixth Amendments.   The federal government now makes the Orwellian claim that we still have a right to “due process” despite the executive branch claiming the power to detain American citizens in military brigs and deprive them of their liberty without Grand Jury indictment, without jury trial (and without even a suspension of habeas corpus by Congress), and to even try American civilians before military tribunal (and note that Obama has not renounced any of those claimed powers advanced by the Bush Administration).  This is essentially a claim that American citizens can be treated exactly the same as a foreign enemy in wartime – exactly like citizens of occupied Iraq or Afghanistan, in direct violation of the Article III Treason Clause, which makes very clear what must be done with a citizen accused of making war against the United States or aiding and abetting its enemies – such a citizen must be tried for treason, in a civilian court before a civilian jury.   See Justice Scalia’s dissent in Hamdi v. Rumsfeld (http://www.law.cornell.edu/supct/html/03-6696.ZD.html). 

This claimed power now includes the asserted power  that the government can assassinate its own citizens if the President determines that they are a threat to national security – no “due process” of any kind, no trial for treason as Article III mandates, no right to face your accusers, not even a military tribunal, just straight to execution on sight.  And don’t think any of the above will be used only against Americans who have become Islamacists and embarked on jihad.  Government lawyers and judges have been very careful to ensure that there is no legal distinction whatsoever made on those grounds – the above illustrated claimed powers apply to ALL OF US;

Claims that government may impose “Martial law.”     The above noted claimed power to designate American citizens as “enemy combatants” is itself a form of martial law, being the claim that the international laws of war may be applied to the American people by their own government.  However, even aside from that extraordinary claim of power, government officials at every level are increasingly asserting that during a national emergency of any kind, the Constitution and Bill of Rights can be suspended and martial law imposed on us, though that term is nowhere even mentioned in our Constitution.  Go ahead, look for it in the text.  It is not there – and for damn good reason.

Martial law is no law at all except for the will of the commander on the battlefield.  Martial law is what we imposed on defeated and occupied Germany, Japan, and Iraq.  Nowhere in our Constitution is any branch of government, at any level, whether state or federal, given the power to set aside the Constitution of the United States and the constitutions of the several states and treat the American people like conquered enemies in wartime.  Not only is “martial law” absent from the Constitution, and in direct violation of Article IV, Section IV (the guarantee of Republican government), it is a power foreign to our system of government, which is supposed to be a government of laws, not men, with the government having only those powers granted by the consent of the people.  Remember, one of the grievances listed in our Declaration of Independence, against the King, was that “He has affected to render the Military independent of and superior to the Civil power.”  The Crown had imposed martial law on a rebellious Boston, and it was during that occupation that the expedition to seize arms at Lexington and Concord finally led to open conflict.  Martial law is in fact a complete lack of law.  It is anti-law and is anti-constitutional.  See Dr. Edwin Vieira, A Primer on Martial Law, http://www.newswithviews.com/Vieira/edwin198.htm.  And the principle of civilian command of the military is expressed both by Article II, which makes the President, an elected civilian, Commander in Chief of the armed forces, even above life-long professional military Generals. This principle is also reflected in the Third Amendment, which prohibits the quartering of soldiers in any home, even in time of war, “but in a manner to be prescribed by law” and that means by law written by Congress and signed by the President.  Add to that all of the Article 1, Section 8 powers of Congress to regulate the armed forces, to make rules for capture, and to define and punish violations of the laws of nations, and to declare war, etc. and it becomes clear how illegitimate and wildly unconstitutional any claimed power to impose “martial law” really is.  And yet, government supremacist elites increasingly insist that they have an inherit or implied power to invoke “martial law” and impose rule by fiat, by simple decree upon us.  History has a name for such rule by decree, by the dictates of The Leader – dictatorship.

The Ninth Amendment has been ignored.  The Ninth Amendment states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (emphasis added).  The Ninth Amendment uses the command language “shall not” and is as much a command as “the right of the people to keep and bear arms shall not be infringed.” It also speaks of the enumeration (the listing) in the Constitution of certain rights, not the “creation by the Constitution of certain rights.”  This is no accident.  The Bill of Rights does not create rights, but merely provides protection for rights that already exist.  As our Declaration of Independence made clear, our rights predate any government and come from our creator, not from government.  Our rights come first, and are ours by virtue of nature and nature’s God.  Governments come later, being instituted among men to protect those natural rights.  And yet, we now have over us legal, political, and academic elites that assert the exact opposite – that we have only those “rights” granted by government.  And that is a common perspective of elites from both sides of the aisle. 

The Tenth Amendment has been ignored.  As already discussed above, the Tenth Amendment has been so ignored that it may as well read exactly the opposite.  We now have a national government that claims all powers not clearly and expressly prohibited to it by the Constitution, and we have states that only have whatever scraps of power the federal government deems to give them, until such time as it decides to take those powers away by simply passing federal legislation and then evoking the Supremacy Clause.

The Bizzaro Anti-Republic

The above only barely scratches the surface.  There are a great many other examples of violations of the Constitution and usurpations of powers never granted.  Suffice it to say that the elites of both parties in power in this country have almost completely cut themselves loose from the chains of the Constitution while at the same time having almost totally expanded their power, while also eviscerating the power of the states.
Right down the line, the Founders’ design of a dual sovereignty, balanced Constitutional Republic made up of sovereign states and a national government of limited powers, with those boundaries enforced both by the state legislatures, governors, by a Bill of Rights with teeth, and, as a last resort, by an armed populace in their state militias (which were to be strong enough to repel invasions), has been turned upside down and inside out till it is the exact mirror opposite of what it was supposed to be. We are now living in the “Bizzaro” Republic, or the Anti-Republic. Rather than a massive sea of the rights and powers of the people and tiny islands of government power, we now live on tiny, shrinking islands of “rights” and state powers in a great sea of federal and even international government powers. And the tide is rising.

And so, is the anniversary of the signing of the Constitution cause for celebration, or for mourning?  Should we still bother to celebrate Constitution Day? Should we bother to read that old, dusty document from so long ago?

Yes we should. By all means.  But why, you may ask, given all that I have said above, should we do so?  

In a follow-up article I will give you several very good, and very powerful reasons to celebrate, honor, read, and to DEFEND the Constitution, and to work hard for the Restoration of this Republic.  

And by the way, with all due respect to Dr. Franklin, the birth-date of this Republic was not, in fact, September 17, 1787.  I hold that our Republic was actually officially born on July 4, 1776.  That was when the American people separated themselves from their former country, Great Britain, dissolving the political bands which had connected them with another people, and assumed “among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”  Yes, each state was its own republic, but they together formed the united States of America, and on that day we became a separate people. 

In fact, one could argue that our Republic was unofficially born on April 19, 1775, at Concord and Lexington, or perhaps even farther back, in the hearts and minds of the men and women of America in the early years of American resistance.  But in any case, the spirit of the American Revolution, the spirit of liberty, what came to be known as the Spirit of 76, was alive and well in the hearts and minds of the American people long before the Constitution of 1787 was written, and good men and women shed their blood for liberty, for the “fate of unborn millions” long, long before anyone even heard of the Constitution.  And that makes perfect sense.  As Judge Learned Hand once remarked:

I often wonder whether we do not rest our hopes too much upon constitutions, upon law and upon courts. These are false hopes, believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no courts to save it.

Before we can know whether we can keep our Republic, the central question is whether liberty still lies in our hearts, as it did in the hearts of the Founding Generation and in the hearts of all who stood in its defense since.  The answer to that question makes all the difference to if and how we shall keep and restore our Republic.

For the Republic (born in the American Revolution!), and in defense of the Constitution still, as always,
Stewart Rhodes
Founder of Oath Keepers
© Oathkeepers.org
Kalispell, Montana, Sept. 18, 2010

If you would like to support the Oath Keepers vital mission to teach the current serving about their oath and about the Constitution so they will stand firm and do what is right, and our second mission to remind veterans of their oath and obligations, please donate here:

 http://r20.rs6.net/tn.jsp?llr=ira8vadab&et=1103697352999&s=8286&e=001g-KlCKPIHYj_F5YhG-SXRL-1-BuSsUI7YM2irT3Mm2M7zQMG-_yRyGTnBdvLvrVW4SooxbOENN8o-4fvEQTohxUB7AhOsgJWw3idxhcl4Mtw3RzbN6aKPNO46oH5lckWF-z6QbZo0rys1eY0_TKDCzmYanfDOKkP

If you would like to mail your donation:

Make checks payable to: OathKeepers

Mail to:
Oath Keepers
5230 S. Fort Apache suite 215
Las Vegas, NV 89148 

I refer to David Korten, a Stanford-trained economist, former professor at Harvard Business School, former adviser to the Ford Foundation and the US Agency for International Development. Korten, a prominent critic of corporate globalization and official aid, is co-founder and board chair of the Positive Futures Network, which publishes the quarterly YES! Magazine, a board member of the Business Alliance for Local Living Economies, and is author of  When Corporations Rule the World (1995 and 2001).

Korten recently published in YES! Magazine his thoughts on how we need to re-organize our economy. Since YES! publishes under a Creative Commons License, I take the liberty of reproducing the article below, with my comments interlaced.

Here are ten common sense principles to frame the New Economy that we the people must now bring forth:

1.  The proper purpose of an economy is to secure just, sustainable, and joyful livelihoods for all. This may come as something of a shock to Wall Street financiers who profit from financial bubbles, securities fraud, low wages, unemployment, foreign sweatshops, tax evasion, public subsidies, and monopoly pricing. 

An “economy” has NO purpose; it is simply shorthand for the interactions of people, acting as individuals and in groups. Securing just, sustainable, and joyful livelihoods for all is indeed a worthy goal for a society to have, among other goals that individuals, groups within the society (including those within government) and the society as a whole may have – which goals cannot all be achieved due to scarce resources and conflict between goals.

While the identification of “Wall Street Financiers” is vague, certainly it is fair criticize our financial system and those who profit from it while generating ill for the rest of society.

2.  GDP is a measure of the economic cost of producing a given level of human well-being and happiness. In the economy, as in any well-run business, the goal should be to minimize cost, not maximize it. 

Korten’s definition of GDP is idiosyncratic and not helpful. GDP is the chief measure of economic performance used by policy makers (determined either as the sum of Consumption (C), Investment (I), Government Spending (G) and Net Exports, or as the sum of income and depreciation). It is certainly a very flawed measure of economic performance, as it fails to measure damage to private and social capital (including damage to the environment), and treats wasteful government spending on wars, pork-barrel spending and building a police state on the same basis as it treats expenditure by the private economy. It does not even attempt to measure of human well-being and happiness, such as differences in income and wealth.

Maximizing GDP – especially as it is now defined – certainly should not be a public policy goal. Korten does not refer to the “environmental” cost of our economic activities; if he intended this criticism I would agree. In fact, GDP treats expenditures to deal with environmental harms as positive contributions to GDP!

3.  A rational reallocation of real resources can reduce the human burden on the Earth’s biosphere and simultaneously improve the health and happiness of all. The Wall Street economy wastes enormous resources on things that actually reduce the quality of our lives—war, automobile dependence, suburban sprawl, energy-inefficient buildings, financial speculation, advertising, incarceration for minor, victimless crimes. The most important step toward bringing ourselves into balance with the biosphere is to eliminate the things that are bad for our health and happiness. 

While I share many of Korten’s concerns here, he has completely failed to define what he means as the “Wall Street economy”, so it is difficult to have productive conversation. GOVERNMENT, not Wall Street, is chiefly or substantially responsible for wars, automobile dependence and suburban sprawl, for building a financial sector that encourages financial speculation, and for the ruinous “War on Drugs” that militarizes our police, keeps blacks in jail and undermines the growth of healthy inner cities. How is Wall Street responsible for energy-inefficient buildings or any other problem Korten identifies, other than financial speculation? Does Korten intend here simply to set up his later criticism of the “money system”? Libertarians would certainly agree that our screwed-up money system is the linchpin of many problems in our society/economy.

Nor is it clear what Korten means by “bringing ourselves into balance with the biosphere” or by a “rational reallocation of resources”, whether these are goals shared by all and are top priorities, or who is supposed to be making rational reallocation decisions. If he is suggesting that governments should have more power, I would disagree.

4.  Markets allocate efficiently only within a framework of appropriate rules to maintain competition, cost internalization, balanced trade, domestic investment, and equality. These are essential conditions for efficient market function. Without rules, a market economy quickly morphs into a system of corporate monopolies engaged in suppressing wages, exporting jobs, collecting public subsidies, poisoning air, land, and water, expropriating resources, corrupting democracy, and a host of other activities that represent an egregiously inefficient and unjust distribution of resources.

“Markets”, loosely defined, are evolved and devised cooperative institutions for interpersonal and inter-group exchange. To maintain efficient cooperation, markets typically employ rules that enforce agreements, provide clarity, limit cheating. Cost internalization （limiting costs shifted to others) and fair sharing of collective costs are a purpose of the rules, but market participants generally have no personal interest in, and markets generally have no rules regarding, “balanced trade” or domestic investment.

Sure, there are a host of problems that can be identified as relating to “corporate monopolies”, but corporations are NOT creations of markets, but creations of governments. It is governments that incentivize moral hazard and risk-shifting, by allowing people to form limited liability business firms that – unlike individuals and partnerships – have unlimited lives and whose owners have no liability for the damage that such firms may do to others. Government action creating corporations has been the trigger fuelling corrupt and damaging behavior, that in turn has fuelled citizens’ demands that government get bigger and create more “rules” to constrain their Frankensteins, who are now bigger and more powerful than government, and far more influential than REAL “persons”. 

Well, it’s not working out very well, is it? The only path I see ahead is to gradually end “limited liability” in corporations, on a number of different fronts.

5.  A proper money system roots the power to create and allocate money in people and communities in order to facilitate the creation of livelihoods and ecologically balanced community wealth. Money properly serves life, not the reverse. Wall Street uses money to consolidate its power to expropriate the real wealth of the rest of the society. Main Street uses money to connect underutilized resources with unmet needs. Public policy properly favors Main Street.

Korten is very right about his last three sentences; the first is spot-on: Wall Street uses money to consolidate its power to expropriate the real wealth of the rest of the society. If one understands modern “fiat money”, it is easily seen as a form of fraud. While I do not see this as a deliberate intention of those working in finance, expropriation of wealth is a natural consequence of the “fiat currency” system that banks developed and that the US government has captured (though governments often deliberately expropriate by inflating their currency – this is clearly seen in Zimbabwe). Until money systems were captured by banks and government, real money was nothing more or less than goods of various types that people found valuable and more convenient than direct barter as a means of exchange.

If fiat money was eliminated (a gradual process would eliminate “legal tender” laws and allow competing currencies), then the natural result would be a shift of power from government and Wall Street to people and local communities.

6.  Money, which is easily created with a simple accounting entry, should never be the deciding constraint in making public resource allocation decisions. This is particularly obvious in the case of economic recessions or depressions, which occur when money fails to flow to where it is needed to put people to work producing essential goods and services. If money is the only lack, then make the accounting entry and get on with it.

This is completely wrong-headed. First, wealth is not created, and long-run human needs are not addressed, simply by continuing to treat money as play money that can be created whenever one wants something – this simply hides the very real theft from the economy as a whole (particularly those least well-off).  If we want honest government that does not favor the wealthy over the middle class or the poor, then we need to end our fiat currency. But as long as we are NOT doing that, then the government should either borrow what it intends to spend, or raise it via donations or taxes – even during down times.

Second, economic recessions or depressions, while not happy times, are generally the product of government playing with money – “easy money” of the kind Korten seems to want – that leads to mal-investment. The recession is actually the process by which the economy “cures” the over-investment, as investments in unsustainable, over-heated sectors go bust and are reallocated to projects that more realistic.

7.  Speculation, the inflation of financial bubbles, risk externalization, the extraction of usury, and the use of creative accounting to create money from nothing, unrelated to the creation of anything of real value, serve no valid social purpose. The Wall Street corporations that engage in these activities are not in the business of contributing to the creation of real community wealth. They are in the business of expropriating it, a polite term for theft. They should be regulated or taxed out of existence.

Generally, agreed, with many quibbles and clarifications. Speculation as used in it’s negative sense is simply making a bet, backed with real money, that an asset (stocks) is worth more than or less than what others think. It sends a useful signal to everyone else that a particular corporations or government may be hiding its real financial and/or business condition. It is government AND banks that generate financial bubbles.

Of course risk externalization is bad, but not only is it inherent in the corporate form, but it is actually encouraged by our systems of financial and corporate regulation, and by government ownership of many resources. Government insurance of banks means government and not depositors must regulate and monitor the risks generated by banks, whose executives and traders are thus playing with “other peoples’ money”. The business models of securities firms and rating agencies has been to find ways around regulations, and to sell risky instruments to regulated entities. Likewise, the regulation of “public companies” has served to raise barriers to entry and to reduce the ability of shareholders to oversee management. The powerful “regulated” companies are always better positioned than consumers and possible upstart rivals to manipulate and take advantage of regulations.

“Usury”? Interest is nothing more than the recognition that a bird in the hand is worth two in the bush.

How to deal with Wall Street? First, end fiat money. While that is progressing, require banks and financial companies to be partnerships instead of limited liability corporations (tighten regulations on the first, relax them on the second), and roll back the counter-productive, easily corrupted effort by government to regulate risks, by limiting deposit insurance.

8.  Greed is not a virtue; sharing is not a sin. If your primary business purpose is not to serve the community, you have no business being in business.

I agree that sharing is not a sin (indeed, it’s necessary for societies to function well, particularly for common resources), but “greed” is a cop-out. While I would support whole-heartedly an effort to eliminate limited liability for corporate shareholders (it was once extremely rare, and required legislative approval on a case-by-case basis of a strong public purpose), people engage in business on an individual basis not expressly “to serve the community”, but to make a living – by providing goods and services that the community members want. If people and firms fail to do that well, they go out of business.

9.  The only legitimate reason for government to issue a corporate charter extending special privileges favoring a particular enterprise is to serve a clearly defined public purpose. That purpose should be clearly stated in the corporate charter and be subject to periodic review.

I have a very similar perspective, but my conclusion is that the government should not be issuing corporate charters at all, and certainly none that limit the potential liability of the shareholders. I don’t trust politicians who are easily influenced by the wealthy to be bestowing special favors to anyone. 

10.  Public policy properly favors local investors and businesses dedicated to creating community wealth over investors and businesses that come only to extract it. The former are most likely to be investors and businesses with strong roots in the communities in which they do business. We properly favor them. 

Muddled, but I largely agree. There are business that “extract wealth”, and damage the local community while benefitting others who have little or no stake in it. This can be addressed by insisting that states end limited liability corporations, which would allow them to apply different standards to corporations based in other states or countries, and finding ways to limit the damage done by Supreme Court decisions that say that corporations have Constitutional rights.

But rather than asking for government “favor”, communities and individuals should insist on reclaiming control over their own destinies, thus limiting the areas of “public policy” that government can screw up – a la BP and offshore drilling), in order to benefit a favored set of interest groups.

Let me conclude by saying that I share David Korten’s concerns about how screwed up our economic priorities are, and appreciate his efforts. However, his “common sense” principles miss the key factors at work in skewing our economy towards Wall Street and “extractive” corporations: fiat money, deposit insurance, limited liability for corporate shareholders, and government ownership of resources. 

David Korten is co-founder and board chair of YES! Magazine, co-chair of the New Economy Working Group, president of the People-Centered Development Forum, and a founding board member of the Business Alliance for Local Living Economies (BALLE). His books include Agenda for a New Economy: From Phantom Wealth to Real Wealth, The Great Turning: From Empire to Earth Community, and the international best seller When Corporations Rule the World.

Yes, another BP post! Another Avatar post, too!

Following a trail of crumbs, I have just chanced upon an insightful post at the “On ALLiance” group blog of left libertarians. The post, a reader submission on June 13 by “Keith” is entitled “BPUSA” and hits squarely on the head a couple of nails that have been bothering me. I cross-post it in it entirety below (emphasis added).

I would note that while I agree that we face very serious problems, I would not attribute the weakened state of our communities to deliberate acts of scheming individuals – but rather, individuals in many institutions acting in accordance with the incentives that they face within their respective institutions. Nevertheless, I agree with and strongly support the call to action.

BPUSA

By Keith

The BP Deepwater Horizon oil gusher demonstrates the necessity of building civil society within American communities.  In fact if anything it demonstrates how community agency, the capacity to act for collective purposes, has been eroded due to a persistent effort to erode civil society and create dependency upon state and corporate actors.  This is done through a number of mechanisms: (1) subsuming mutual aid and not-for-profit actors into government welfare; (2) slowly chipping away at the capacity of welfare and social service agencies through diminished funding, increased bureaucracy, and enhanced regulation that undermines the core mission of the agency and; (3) finally by transferring such services over to corporate actors who seek to maximize profit by distributing material (not social) goods that fail to offer a semblance of empowerment nor promises to build individual capacity for transformative change. The purposeful erosion of civil society leaves communities extremely vulnerable in times of crises, as the Deepwater Horizon disaster demonstrates.

Gulf coastal communities were assured by BP and the United States government that the effects of the spill were being mitigated through public-private partnerships without actively engaging the local level communities or regional working groups.  As a recent Rolling Stone article notes, these actors are attempting to protect their own interests to the detriment of an entire ecosystem. BP, the criminal perpetrator, is in essence being empowered to act as judge, jury, and I dare say executioner.

When the Deepwater Horizon originally sank, BP, with support from the Obama Administration, low-balled the estimated flow rate gushing from the well.  Initially the flow was placed at 1000 barrels a day; it is now looking more like 100,000 barrels of oil per day, equivalent to an Exxon-Valdez oil spill every 8 days [actually this is every three days] , a shocking figure by anyone’s standards – it should also be noted that little attention has been paid to the nitrogen-rich liquid natural gas leaking into the deep ocean waters which may be even worse than the oil itself.

The National Oceanographic and Atmospheric Administration has estimated the worst from the very start; their own models planned for the worst.  But why then did the Obama Administration actively seek to keep these estimates tamped down.  There can only be two reasons for this.  First, the Obama Administration desired to limit the political fall out.  Perhaps this means they did not want to worry the Gulf residents (unlikely), or perhaps they wanted to play it safe and attempt to reduce media interest in an attempt to craft the initial message that would (hopefully) dominate the media discourse.  Second, the Obama Administration, a major benefactor of BP political campaign contributions, is going to bat for BP. [Also, Obama was trying to craft a climate deal that required support by big oil, in exchange for expanded offshore drilling.]

Either which way, by limiting the information flow to the media and then to the Gulf communities, they severely reduced the capacity for communities to understand the problem, mobilize resources relative to the catastrophe, and become actively engaged side by side with the government and BP to save their communities.  BP themselves bragged about their ability to detect flow rates in an in-house magazine they produce. It is criminal that communities were, in essence, denied their rightful opportunity to prepare far in advance of the oil coming ashore.

But it is critical to understand that this is how these two entities are currently structured. BP is tasked with maximizing profit and ensuring a solid return on investment to their shareholders (brown pelicans and rural fishermen be damned, they don’t own BP stock).  From a community empowerment perspective, the U.S. government, itself a top-down, hierarchical organization much like BP, also seeks to demonstrate a return on investment to its shareholders (campaign financiers, the businesses they regulate, and the businesses government officials hope will cut them a fat salary when they exit public life to enter the private sector in a cyclical process known as the revolving door).  What’s worse is that the opposition Republicans, instead of feeling the pain wrought by irresponsible regulation, subsidy, liability caps, and corporate malfeasance, has called for a federal bailout, increased oil drilling, and unfettered access to the even riskier drilling ventures; in other words, we have no good option in terms of political representation.  We get a choice of two parties, each representing the same interest, but one being far more crass in its support of destructive business practices.

[Quick aside. What would happen if you killed a large number of endangered animals? Do you think BP faces similar penalties? Who then do these legal processes protect?]

We are seeing a massive failure of state-centralized governance before our very eyes.  This is what happens when we put all of our collective eggs in a solitary basket, and don’t build multiple institutions of governance for collective action. Communities have been trained to rely on singular institutions for their critical goods and services. Should the singular entity (the state-corporate partners know as BPUSA) fail, we have no other choice because, well… these profit-seeking actors diminished our choices and community capacity to address crises have thusly been destroyed. Communities simply need more options.

It is obvious that the elite-led mentality of our governance structure has inhibited community’s capacity to provide for themselves when both the titans of industry and the government has failed them.  State governments in the Gulf have been further hamstrung not because of capacity to prepare for the spill, but to give the illusion that the federal government was not “granting them permits,” for example, to perform immediate stop gap measures, never mind you these “conservative” government’s supposed belief in “states’ rights” which should have prodded them to take their Confederate rebel mentality to buck the federales and win over the hearts and minds of their people; when politics comes into the fray, the vast majority of politicians will let their constituencies suffer gravely in order to further their own political ambitions.

Louisiana governor Bobby Jindal skillfully demonstrated his destructive political acumen, pleaded desperately with the media to have the Obama Administration sign off on permits to allow the state to dump sand berms at the entryways to fragile wetlands. Why, if Jindal knew his cause was just and time was of the essence, did he not use his executive authority and his Confederate-derived states’ rights mentality to not only demonstrate his adept handling of the situation to save his people, but to also give Obama a nice political jab?  Because in the end, for Jindal, he wants to build a narrative of the destructive, oppressive, federal government through demonstrable evidence, forgetting that in this instance federal actions were more about ineptitude than oppressiveness.  But we cannot fault Jindal for living up to the rhetorical standards of the American right: incoherence and inconsistency reign king.

By the way, Jindal had the resources for the sand berms at his immediate disposal. Jindal simply decided he “needed” to wait on the Obama Administration. Odd that Jindal would trust in the process considering Jindal has long criticized the Obama-led government as inept.

Then there is the governor of Mississippi.  Governor Haley Barbour, in an effort to save the state’s tourism industry (I know you are asking “Mississippi has a tourism industry?!”) downplayed the oil coming ashore as “natural.” For Barbour, tar balls are just a trivial side effect of offshore oil drilling – again, never mind a tacit acknowledgement of the destructive side of our economic system where tar balls become a natural feature of our landscape.  Barbour would rather protect the special interest of the notoriously anti working class tourist industry than mobilize the working class themselves to save the local ecosystem.

See a pattern?

Instead of preparing Mississippi citizens for the worst, in order to engage and activate the civic infrastructure, Barbour is hamstringing civilian response efforts by essentially telling people to carry on as they normally would.  God forbid Barbour truly lead and ask the citizens of Mississippi to march to the coast, assist in clean up efforts, and prepare to pitchfork BP executives until they open their fat wallets and liquidate their assets to the people of the great state of Mississippi.

You see, civic engagement is simply not in the best interest of the status quo, even if it means disaster. Political hacks want communities to come to them for their critical needs in order to reinforce their importance.

And the feds, being the good community actors they are, have decided they better make sure that the scant BP financed clean-up crews don’t have any “illegal” immigrants in their midst. Clearly the government believes they must both be choosy, and are duty-led to drum up further anti-immigrant fervor in a crisis situation.  A political two-fer!

Then there is the Coast Guard, supposedly tasked to protect American assets (”our” assets) on the open seas.  The Coast Guard has limited civilian and media access to areas in the Gulf impacted by the Deepwater Horizon gusher.  People wish to see the damage with their own eyes, and damned if in the face of the looming catastrophe they shouldn’t have that right to do so.  But the Obama Administration, which is supposedly seeking someone’s ass to kick at BP, has decided to throw their executive weight behind preventing investigative journalism and civil protest as opposed to forcing BP to shift the bulk of it’s operations to the Gulf response effort.  Read this article posted on HuffingtonPost: http://www.huffingtonpost.com/riki-ott/from-the-ground-bp-censor_b_608724.html

What this has done is rightfully created mistrust in both the government and business.  The state has created the corporation through state charter.  With the corporate-state partnership, the corporation now receives the rights of a human being with virtually none of the risk or liabilities; the state is all too willing to proliferate this relationship too. Again, the opposition political party’s own minority leader, John Boehner, stood side by side with the president of the Chamber of Commerce, expressing their shared sense of outrage that BP might be liable, and that the government should be on the hook for the cleanup costs.

And here we were told by the Chamber that they wanted government OUT of the business of business.  Read more here: http://thinkprogress.org/2010/06/10/boehner-spill/

On one hand, when people cry out for critical social services – their only avenue being the government due to restrictive regulations preventing mutual aid type agencies – they are told that now is not the time due to severe economic situations (or the Democratic supermajority is not “super” enough).  On the other, when the government wants to bail out the banks, launch trillion dollar wars, or use our tax dollars to clean up after BP (who makes tens of billions in profits a year), all of a sudden the government can marshal its forces to meet these challenges.  The more reasonable amongst us are labeled as unreasonable or irrational when we point out that this spending orgy – resulting in irresponsible business practices and, worst of all, the death of millions of innocents – could simply be redirected toward crumbling U.S. infrastructure or, and I might sound crazy here, putting a massive collective effort toward stopping an impending, unprecedented environmental disaster.  No, you see, we have to find some guy in a cave and build a nation or two, modeled off this nation’s likeness (good luck with that Afghanistan!).

Have no doubt that we are facing critical times.  Government, which demands to be the end arbiter for rapid-response efforts, is failing us time and time again.  Corporations stand behind government to shield themselves from liability while profiting along the way (Naomi Klein wrote about this process in her book The Shock Doctrine). Government then downplays all disasters to protect the corporate interests while also downplaying the necessity to deploy the resources necessary to protect communities from catastrophic events.  Communities are then ill equipped to wage effective disaster responses or stop the absentee corporate business practices that cause the disasters in the first place.  This is a cycle that is increasingly playing out with global climate change, state-centralization of police power, and the growth of the corporate-state partnership. Communities, particularly rural and resource-constrained types, are suffering most and will continue to do so, so long as elite brokers have something to gain.

The state and corporate titans have done their fair share to blind local and regional communities to the realities of their destructive practices for the sake of the all-mighty dollar.  In doing so, it has now become common practice for communities, even in disaster situations, to have to vet their response efforts through cumbersome bureaucracies that are detached from the ground-level realities.  More troubling still is that local level communities seem to acquiesce to these power structures, presuming that it is in their best interest or that they could get punished for breaking the chain of command. In disaster scenarios, we know that a rapid response is the best remedy to ensure that chaos is mitigated, order restored, and peoples’ livelihoods are saved; time is of the essence.  We must engage communities to work collectively on the critical issues of our time, lest we face repeats of the Katrina, Haiti, and Gulf crises.

Don’t get me wrong, here. This disaster and the results are not solely the government’s blame. In the end, the criminal is BP. But the resulting disaster response should be simple and accountability should be clear. The problem is that reactions are slow, people are being lied to, authorities are dominating the response (and badly) and the government has led us to the position that we can’t do much about it.

Communities must work to build active capacity.  Communities must

challenge the rights of corporate and state actors over local autonomy.  We must have multiple institutions of governance for just such instances where the “patriarchs” fail us.  There is no valid reason, as NPR reported the other day, why the Coast Guard should prevent inland fisheries from setting up their own booms to prevent the flow of BP’s oil into their bays.  Not only should communities challenge the Coast Guard’s order, but they should, figuratively, deploy the booms when reason seems to dictate it is in their best interest. This is where civil disobedience is needed most.

Communities should not acquiesce when it means destruction.  It is long past time we challenge these obviously destructive state-corporate partnerships and build our own local capacity to work collectively.  Indeed it may be a necessity for communities to thrive.  The all too real and disturbing question to me is will we be allowed to do so, and will communities be willing to challenge such impediments?

h/t suburnanarchist http://suburbananarchist.tumblr.com/day/2010/06/13 11:42 pm

Below is another handy summary of my Constitutional arguments against #CorpSpeak and #politicsInc (Twiter hashtags, for those of you who may be unfamiliar with them), copied from another comment thread at Volokh Conspiracy.

Readers should not forget that it is the state grant of limited liability that – as I have discussed in many posts – lies at the root of our burgeoning fights over government and public distrust (extending even to my quaint pet enviro concerns), Corporations are divorced from their owners, who have been given a grant of limited liability for the risks they shift to society, a cloak of anonymity by which they can behave irresponsibility (with little concerns greater than what provides the largest profits and bonuses) and can seek favors from government, as well as unlimited lives and deep pockets to make persistent efforts to corrupt.

Yes, I may be repeating myself, but core libertarian concerns are at stake. Here are my comments, with a few slight tweaks:

TokyoTom says:

February 4, 2010, 11:45 pm

Further to my four preceding posts, I copy below a further comment that I left on a thread at The Volokh Conspiracy, which I think summarizes the core Constitutional issue:

TokyoTom says:

February 3, 2010, 12:32 pm

PR.Watch.org succinctly summarizes:

Now that the Supreme Court has ruled that corporations are entitled to the same free speech and political rights as American citizens, Murray Hill, Inc., a public relations and advertising firm in Maryland has announced that it intends to run for Congress in Maryland’s 8th Congressional district. In an undated press release
posted on the company’s Web site, Murray Hill says, “Until now,
corporate interests had to rely on campaign contributions and
influence-peddling to achieve their goals in Washington. But thanks to
an enlightened Supreme Court, now we can eliminate the middle-man and
run for office ourselves.” Murray Hill states that it plans on spending
“top dollar” to protect its investment in government, adding, “We
bought it, we paid for it, and we’re going to keep it.” The company
plans to run as a Republican in the primary, and announced that it will
run an aggressive, historic campaign that “puts people second” or even
third. Murray Hill will be the first corporation to test the Supreme
Court’s new ruling conferring political free speech rights on
corporations. Murray Hill has designated a human to fill out the
necessary forms to apply for its run for office, and it’s political
slogan is “Corporations are people too!” It has started a Facebook page and says it plans on using automated robo-calls, “astroturf” lobbying, and computer-generated avatars to win over voters.

More here: http://www.murrayhillweb.com/pr-012510.html

here: http://www.huffingtonpost.com/william-klein/supreme-court-ruling-spur_b_437871.html

here: http://www.huffingtonpost.com/william-klein/corporate-persons-get-sho_b_440468.html

here: http://www.murrayhillweb.com/new_day/index.html

Facebook

YouTube

Twitter (with links to various TV, radio appearances)

It looks like Sen. Robert Byrd, a lifetime loyal supporter of the West Virginia coal industry (see his definitive biography, “Robert C. Byrd: Child of the Appalachian Coalfields”), stabbed Don Blankenship/Massey Coal and the rest of the W.Va. environmentally destructive “mountaintop mining” industry in the back last Thursday, in an op-ed in the West Virginia MetroNews entitled, “Coal Must Embrace the Future”.

I excerpt portions below (emphasis added):

For more than 100 years, coal has been the backbone of the Appalachian economy. Even today, the economies of more than 20 states depend to some degree on the mining of coal. About half of all the electricity generated in America and about one quarter of all the energy consumed globally is generated by coal.

Change is no stranger to the coal industry.  Think of the huge changes which came with the onset of the Machine Age in the late 1800’s.  Mechanization has increased coal production and revenues, but also has eliminated jobs, hurting the economies of coal communities. In 1979, there were 62,500 coal miners in the Mountain State. Today there are about 22,000. In recent years, West Virginia has seen record high coal production and record low coal employment.

increased use of mountaintop removal mining means that fewer miners are needed to meet company production goals. Meanwhile the Central Appalachian coal seams that remain to be mined are becoming thinner and more costly to mine. Mountaintop removal mining, a declining national demand for energy, rising mining costs and erratic spot market prices all add up to fewer jobs in the coal fields.

These are real problems. They affect real people. And West Virginia’s elected officials are rightly concerned about jobs and the economic impact on local communities.  I share those concerns.  But the time has come to have an open and honest dialogue about coal’s future in West Virginia.

Let’s speak the truth. The most important factor in maintaining coal-related jobs is demand for coal. Scapegoating and stoking fear among workers over the permitting process is counter-productive.

Coal companies want a large stockpile of permits in their back pockets because that implies stability to potential investors. But when coal industry representatives stir up public anger toward federal regulatory agencies, it can damage the state’s ability to work with those agencies to West Virginia’s benefit. This, in turn, may create the perception of ineffectiveness within the industry, which can drive potential investors away.

Let’s speak a little more truth here. No deliberate effort to do away with the coal industry could ever succeed in Washington because there is no available alternative energy supply that could immediately supplant the use of coal for base load power generation in America. That is a stubborn fact that vexes some in the environmental community, but it is reality.

It is also a reality that the practice of mountaintop removal mining has a diminishing constituency in Washington. It is not a widespread method of mining, with its use confined to only three states.  Most members of Congress, like most Americans, oppose the practice, and we may not yet fully understand the effects of mountaintop removal mining on the health of our citizens. West Virginians may demonstrate anger toward the Environmental Protection Agency (EPA) over mountaintop removal mining, but we risk the very probable consequence of shouting ourselves out of any productive dialogue with EPA and our adversaries in the Congress.

Some have even suggested that coal state representatives in Washington should block any advancement of national health care reform legislation until the coal industry’s demands are met by the EPA. I believe that the notion of holding the health care of over 300 million Americans hostage in exchange for a handful of coal permits is beyond foolish; it is morally indefensible.  It is a non-starter, and puts the entire state of West Virginia and the coal industry in a terrible light.

To be part of any solution, one must first acknowledge a problem. To deny the mounting science of climate change is to stick our heads in the sand and say “deal me out.” West Virginia would be much smarter to stay at the table.

The 20 coal-producing states together hold some powerful political cards. We can have a part in shaping energy policy, but we must be honest brokers if we have any prayer of influencing coal policy on looming issues important to the future of coal like hazardous air pollutants, climate change, and federal dollars for investments in clean coal technology.

Most people understand that America cannot meet its current energy needs without coal, but there is strong bi-partisan opposition in Congress to the mountaintop removal method of mining it. We have our work cut out for us in finding a prudent and profitable middle ground – but we will not reach it by using fear mongering, grandstanding and outrage as a strategy. As your United States Senator, I must represent the opinions and the best interests of the entire Mountain State, not just those of coal operators and southern coalfield residents who may be strident supporters of mountaintop removal mining.

I have spent the past six months working with a group of coal state Democrats in the Senate, led by West Virginia native Senator Tom Carper (D-Del.), drafting provisions to assist the coal industry in more easily transitioning to a lower-carbon economy. These include increasing funding for clean coal projects and easing emission standards and timelines, setting aside billions of dollars for coal plants that install new technology and continue using coal. These are among the achievable ways coal can continue its major role in our national energy portfolio. It is the best way to step up to the challenge and help lead change.

The truth is that some form of climate legislation will likely become public policy because most American voters want a healthier environment.  Major coal-fired power plants and coal operators operating in West Virginia have wisely already embraced this reality, and are making significant investments to prepare.

The future of coal and indeed of our total energy picture lies in change and innovation. In fact, the future of American industrial power and our economic ability to compete globally depends on our ability to advance energy technology.

The greatest threats to the future of coal do not come from possible constraints on mountaintop removal mining or other environmental regulations, but rather from rigid mindsets, depleting coal reserves, and the declining demand for coal as more power plants begin shifting to biomass and natural gas as a way to reduce emissions.

Fortunately, West Virginia has a running head-start as an innovator. Low-carbon and renewable energy projects are already under development in West Virginia, including:  America’s first integrated carbon capture and sequestration project on a conventional coal-fired power plant in Mason County; the largest wind power facility in the eastern United States; a bio-fuel refinery in Nitro; three large wood pellet plants in Fayette, Randolph, and Gilmer Counties; and major dams capable of generating substantial electricity.

Change has been a constant throughout the history of our coal industry. West Virginians can choose to anticipate change and adapt to it, or resist and be overrun by it.  One thing is clear.  The time has arrived for the people of the Mountain State to think long and hard about which course they want to choose.

(Oops; looks like I “excerpted” the whole thing!)

Byrd looks like he`s ready to sign a climate bill and to see an end to future mountaintop mining permits, as long as he gets federal pork for carbon capture and storage, and maybe some “green” project financing. These together may boost jobs in his state.

I think he`s also fairly accurately noted that it is the coal industry itself, and not politicos/regulators in Washington, that are the chief threat to coal jobs and to the health of W.Va citizens.

It`s too bad that states like W.Va. are so beholden to coal revenues that it essential requires political decisions – as opposed to simply upholding the rights of property owners to be free from nuisance, intrusions and damages by others – to put an end to destructive mining practices.

“The Climes, They Are A-Changin`”!

[I note that this is one of my earlier Avatar-themed posts. 2010/02/15]

I’ve often referred to Bruce Yandle, a “free-market environmentalist” who is dean emeritus and Distinguished Professor of Economics Emeritus at Clemson University’s College of Business & Behavior Sciences, Distinguished Adjunct Professor of Economics at the Mercatus Center, a faculty member with George Mason University’s Capitol Hill Campus, and a Senior Fellow at PERC – the Property and Environment Research Center (a free-market environmentalism think tank which has great links to his many works).

I’d like to draw attention attention to one short paper by Yandle which I find insightful in providing a perspective on the evolution of prperty rights and problems with resource management which arise from government owenership, even as he has short-shrifted the importance of community property mechanisms, which Nobel Prize-winner Elinor Ostrom has so extensively researched and documented (as I keep noting).

Yandle’s paper, The Commons: Tragedy or Triumph?, was published by the Foundation for Economic Education in its April 1999 online edition of Freeman. Here are few portions (emphasis added):

The feeder is a commons, but not just for hummingbirds. Bees are
attracted to it as well, and oddly enough, they can drive off the
larger hummingbirds. So even if the dominant bird is able to deflect
competition from other members of the species, that is not enough to
protect the nectar, and the defense itself is costly in energy burned.
The feeder contents are never secure.

Hummingbirds have no way to stake a claim to the feeder. So far as
we can tell, hummingbird communities have no constitution that reflects
socially evolved rules for establishing a social order. Most likely, a
long process of adaptation and selection has generated a hummingbird
capable of living in a world where nourishment is a common-access
resource, a commons. Hummingbirds live a life of flight, engaging in a
constant search for nourishment to feed their high-energy lives and, at
times, fighting for temporary control over valuable resources.

Human Commons

We all know the tragedy of the commons story. Wonderfully written
by Garrett Hardin in 1968, the highly stylized rendering is about a
pasture devoid of rules, customs, or norms for sharing.^[1]
It is open to all comers. In this never-never-land, shepherds logically
add sheep to their flocks as long as doing so adds an increment of gain
for the particular flock. Uncoordinated in their effort, and unaware of
the effects of their individual actions on others, the unconcerned
shepherds collectively destroy the pasture. What could be a story of
plenty, if only the shepherds understood, turns into a story of
poverty. The passive shepherds are like hummingbirds. [Yandle has this wrong; Hardin posits competing shepherds who don’t talk w/ each other,and so look after only their narrow self-interests.]

As Hardin artistically puts it: “Therein is the tragedy. Each man
is locked into a system that compels him to increase his herd without
limit—in a world that is limited. Ruin is the destination toward which
all men rush, each pursuing his own best interest in a society that
believes in freedom of the commons.”

Garrett Hardin’s words beautifully bundle aspects of an endless
human struggle to form communities, accumulate wealth, and improve
well-being. With that phrase—tragedy of the commons—the essence of the
challenge hits us squarely between the eyes: When there are no property
rights—formal or informal—that limit use of a scarce natural resource,
human action leads inevitably to untimely resource depletion and
destruction.

But people are not hummingbirds. People can build institutions that
take the edge off frantic commons behavior. People have unwritten and
written constitutions that help to establish social order. People can
and do accumulate wealth. People communicate, invent lines of kinship,
and develop customs, traditions, and rules of law that limit
anti-social behavior. People define, enforce, and trade property
rights. People can and do avoid the tragedy of the commons. Indeed,
instead of living with tragedies, people triumph over the commons. But
the triumphs are never perfect or complete. There is always another
commons to manage.

The Ascent of Man

I wish to put forward the notion that encounters with the commons
form the fundamental stimulus that yields, instead of tragedy, what we
today call civilization. The ascent of man from a primitive existence
with no wealth accumulation to life as we know it is fundamentally a
story about triumph over, not tragedy of, the commons. Let me explain.

Our very existence as human beings is defined by evolved
institutions for avoiding tragedies. We have names, which serve the
economic purpose of identifying us as parties to contracts and
agreements. Those names, first and last, form webs of communication
that reduce the social cost of assigning responsibilities and
liabilities. They enhance truth-telling and promise-keeping; they raise
the cost of engaging in anti-social behavior. They limit a tragedy of
the commons.

We have abstract symbols of ownership—deeds, titles, and
contracts—that define spheres of autonomous behavior. We speak of our
homes, our cars, our clothes, our families, and our pasture. Even
language has evolved to provide a possessive form that accommodates
triumph over the commons.

We write and observe contracts, wills, and marriage agreements that
define relationships, identify turf, and conserve wealth. We accept
evolved bodies of law and law-enforcement activities to assure the
integrity of our agreements. We carry papers that enable us to acquire
property, extinguish debt, cross borders, drive vehicles, and
communicate effectively with strangers. And we have locks, keys, walls,
fences, brands, and encryption devices, all this in an effort to avoid
a tragedy of the commons.

Property rights define who we are and what we have. Property rights
guard others from our unwanted advances and prevent us from
contributing to a tragedy of their commons.

Avoiding a tragedy of the commons is costly. The benefits must be large. …

The tragedy is found where for reasons having to do with power,
intolerance, or cost, human beings have not yet defined private
property rights. Or, as we shall see, where evolving property rights
encouraged by man the institution builder have been destroyed. What was
once a triumph can become a tragedy. …

What about fisheries? How can we avoid a tragedy of the commons
there? Long before the Europeans arrived on the scene in the Pacific
Northwest, Native Americans had figured it out. Small tribes in what is
now Washington State had salmon fishing rights. Don Leal tells us that
“in some cases, the tribe owned the rights; in others, families or
individuals or a combination owned the rights.”^[5]

And what happened when the Europeans arrived? You guessed it. Leal
tells the story this way: “Instead of recognizing the well-defined and
enforced fishing rights, the U.S. government allowed newcomers to place
nets across the mouth of the Columbia. This quickly depleted salmon
runs, so traps and weirs were banned—only to be replaced by purse seine
boats powered by internal combustion engines. The race to catch salmon
moved to open waters. Ironically, from the country where private
property is considered sacrosanct came a socialistic legal system
driven by politics and military power.”^[6]
What had been private property was turned into a commons. What had been
an institution-builder triumph became a political tragedy. …

For centuries before anyone in the United States thought much about
environmental quality, our common law defined and protected the
environmental rights of ordinary people.^[10]
Enforced by judges in courts across the land, common law protected the
right of downstream property owners to receive water and air in
undiminished quality for reasonable use. At common law, rivers could
not be treated as open sewers if doing so imposed costs on downstream
rightholders. Industrial plants could not blow smoke and emissions onto
the land and property of ordinary people. The record is filled with
cases, here and in Canada, decided under English common-law traditions:
where farmers sued industrial plants and won; where citizens of one
state sued polluters in another state, and won; and where common-law
judges ordered polluters to clean up or shut down. There are also cases
where this did not happen, where judges turned away from
property-rights enforcement and behaved as policy makers. But when the
judges got it wrong, their decisions affected a small number of people,
not an entire nation. [I note Walter Block disagrees strongly and views this change in common law as leading to the rampant pollution that set the stage for federal legislation.] This, of course, changed with the advent of
legislation.

Prior to the passage of federal pollution-control statutes, every
major city in the United States had taken steps to define public
property rights to air quality. Many states, including California, had
taken a river-basin approach to the management of water quality, this
in addition to the use of common law. Multi-state compacts were
forming. By the 1960s, environmental quality was improving rapidly in
many locations. The property rights institution builders were on their
way to avoiding a tragedy of the commons. Common law was converting the
commons to private property.

This was changed with the passage of federal legislation that
effectively nationalized air and water quality in the United States.
What was becoming private property was made public property, almost a
commons. The new system of command-and-control regulation allowed
polluters to operate legally if they had a permit. With permits in
hand, new polluters could enter already crowded river basins. The new
regime provided political access to industries and municipalities that
hoped to postpone the day of reckoning in common law courts. …

This work sheds light on mankind’s struggle to avoid the tragedy of
the commons. It tells us that at very low levels of income, what might
be called stage one, human beings cannot afford to do much about
property-rights enforcement and the commons. They live in a world where
custom and tradition sustain them. As incomes rise and losses from the
commons expand, stage two is entered. Fences go up, and rules are set
for protecting the commons. Finally, in stage three, markets evolve
along with rules of law that define spheres of private and public
action. Private rights replace public control, and the triumph replaces
the tragedy of the commons.

[Yandle ignores government mismanagement here, and how Western markets and Westernized leaders have seamrollered native institutions.]

Life for mankind began on a commons where tragedies were
commonplace and the incentive to improve was powerful. Out of the
struggle to survive and accumulate wealth evolved markets, property
rights, and the rule of law—a triumph on the commons.

But just as bees compete with hummingbirds in the struggle to
control access to nectar, institution builders who seek to support
markets and property rights compete with others who seek to
redistribute wealth. Actions to redistribute wealth blunt the incentive
to protect property rights and create wealth. This converts triumph to
tragedy.