ONE of the largest industries in these United States today is, subtracting from the general welfare; almost as many living persons are receiving public money as are contributing it. (This is not implausible; a great deal of tax is paid by General Motors, which turns over many, many dollars but has no vote.) Thus there is an active interest in defending profligacy, in perpetuating crime and poverty and illiteracy and building fires and traffic collisions and child abuse and "emergencies" and all the other pretexts for government initiatives.

These many lovers of power have succeeded in circulating a host of falsehoods in their interest ¾ seemingly, the press and broadcast media, while they are diligent in telling us names and occupations and mere opinions, are wholly indifferent to the question whether what is said is true or false. Consider the new speciality, "investigative reporter;" could such an occupation exist if the journalist, as a matter of course, tested what he was told? However, when media corporations with millions of dollars tied up in capital assets need the consent of the Justice Department to merge or consolidate, or of the Federal Communications Commission to give their programs to the public, or of the Securities Exchange Commission to raise capital, one would hardly expect criticism of the status quo to be published.

Let us survey a few of the deceptions that are widely accepted.

First of all, there is only one culture ¾ righteousness, fraternité , solidarity. As observed by Rudyard Kipling in "The Ballad of East and West,"

East is East, and West is West, and never the twain shall meet

Till earth and sky stand presently at God’s great judgement seat.

But there is neither East nor West, border nor breed nor birth

When two strong men stand face to face, though they come from the ends of the earth.

Who is a strong man? Or a just man? Or a cultured man? This is the question we have answered ¾ it is open to any one to behave ethically. And any who do not observe this ethic are uncultured. You know whether you have to worry what Top Cat will do ¾ or you and your neighbors have settled what he shall do. It is only where Top Cat is not governed by law that societies are divided into Us and Them.

Secondly, the idea that people are divided into classes is false; it fails whenever it is tried. Time and again we hear that persons with XYY chromosomes ¾ or some other characteristic ¾ are different . . . and every time there prove to be exceptions to the rule, the theory is not a guide for action by intelligent life. Persons do not fall into classes, they rank themselves in order. And, given only law, the good things of life will be allotted to those who can best utilize them.

Let it be stressed that men are necessarily equal only so far as voluntary action is concerned. It is entirely possible that some criterion will be found to pick out those who are immune to Tay-Sachs disease, or sickle cell anemia, or some other condition ¾ and if insurers make use of such tests, they can match risks to premiums more effectively, and give both customers and stock-owners better results. It is the state that is required to reject classifications, not the person.

There are obvious reasons why, today, people feel estranged or alienated. The very essence of the modern state is that it establishes privileges, and indeed special privileges; if there can be such privileges, then everyone must fear for his own standing. If marriage can be restricted to persons over X years of age, or if there are tax credits for persons with young children, then those who believe in being fruitful and multiplying will be disfavored, or favored, compared to others. There will appear gangs pursuing group security, instead of all men belonging to one catholic gang. But in a society governed by law, or one where privileges are neither Left nor Right, no-one need live in jealousy of his neighbor.

Above all, there is the issue of popular elections. If the Roman Catholics all vote the same way, then indeed for this minority to have the franchise renders direct elections fruitless; the election does not find the best man, it only finds what block is most numerous or most adept in selling its voting power. But the remedy for this so-persistent problem is obvious: it is for the States to emulate the U. S. and hold indirect elections. In an electoral college, it would be simply laughable for any minority to vote for one of themselves, they would merely disenfranchise themselves ¾ the Roman, or Jewish, or Black, electors would seek to persuade other electors to agree with them that A was a better man than B.

True, the president is commander in chief of the army and the navy ¾ but he cannot command any of the States: Congress has power to make all laws which shall be necessary and proper . . . Neither can Congress do anything within a State, even building an arsenal or a dockyard for the common defense, without the consent of the State. (If you live in a State that was not one of the original thirteen, you are likely to find that the act of Congress admitting your State included a clause by which the State conceded to Congress the privilege of owning land within the borders of the State; thus Congress claimed equality for itself.)

Any duties laid on imports or exports by a State are, admittedly, subject to the "revision and control" of the Congress ¾ but in matters that do not affect foreign relations, the States remain independent.

Federalism does not mean that the U. S. is accepted as an equal of the States. The U. S. government was not created by [a majority of] the people, but by nine of the States: if the four largest States had held aloof, the Constitution would have been adopted by less than half of the voters under the Articles of Confederation.

The only questions that are federal are ones affecting all the States ¾ citizenship, as distinct from immigration. "The Environment" is not common to all of the States; on the contrary, it might well be that cutting down forests in California causes the rain that would have fallen there to fall in Oregon, etc., so that it would be an ill wind that blew no State any good. And whatever the Congress does to protect the environment will be less likely to promote the general welfare than to advantage States with many Representatives at the expense of others with few.

The popular notion is that this is a majority-domination society; even a grand jury or the electoral college of a State, which meets and deliberates, is not expected to agree.

However, the electoral college is answering only a political question, who is the best man? There must always be differences of opinion on "best," the favorite does not always win the race. Two-thirds of the Senate can convict an officer on impeachment ¾ but impeachment only removes him from office, it is hardly more important than electing him. Questions of fact, of true-or-false, are nowhere entrusted to a majority by the U. S. Constitution.

July 4, 1776, is remembered for the Unanimous Declaration of the thirteen United States, and September 17, 1787, for a Constitution "done in convention, by the unanimous consent of the States present." On matters of right and wrong, reasonable men can agree (even though at least half of the State constitutions do allow judges to proceed over a dissent.)

Today, it is simply accepted as given that killing or imprisoning someone must make the remainder of us better off. The idea is popular that there exist only so many goods, so that the more people there are, the worse off each one must be. It is supposed that the Jews and Christians and Muslims, who intend to multiply, must thereby make everyone else worse off; we see laws against plural marriage, and double-digit ages of consent, and restrictions on selling sex and trading babies.

If, when someone died, we burned all his possessions, then there might be some plausibility in this notion of goods being limited, but the normal thing is that people build houses and cultivate gardens and paint pictures, and then bequeath these things to someone else. If there are private persons (outside prison) who are net consumers ¾ who consume more than they create ¾ the reason is, in all likelihood, that they are poor, that they are working with their muscles rather than using their minds to run a machine. One man with a truck, or a computer, can do the work of one hundred, or one thousand, without: a man using his mind is a producer rather than a consumer. And capitalists will inevitably seek out minds to operate their expensive equipment to the best advantage, if the market is free.

The truth is that there are indefinitely many goods; the world is stuffed with fields and lakes and forests that contain animals and plants and minerals and heat (or, equally useful, cold.) The question is, is it worth while exploiting any particular resource? The farmer or the fisher or the miner can only work the land or the water or the ore if the cost of bringing the good to market is less than the price it will fetch.

If more people appear, then ¾ assuming that they are people who like to eat ¾ the cost of labor must go down; the way you get to do a job is to be the low bidder. As the cost of labor goes down, it becomes possible to plow more acres, catch more fish, harvest more trees, dig more wells. Thus more people results in more goods. Further, more people allows more specialization; as well as farmers and fishers, there appear carriers and salesmen and money-lenders and advertising men . . . and even inventors.

The famous theory of Malthus is, that resources are limited, whereas population is not; there must inevitably be famine or war, or plague or some other great killing. Even if we admit that population must always grow ¾ and it appears that even Jews and Christians do not invariably follow the command to multiply ¾ there is no reason to believe that resources are limited: the nature of the human intellect is, that it can find new ideas, things that were once useless are found to be resources. At one time, the only use for uranium was for performing experiments in physics laboratories, we now know how to turn it into energy.

And the market relentlessly drives assets into the hands of the best men. Around the fiftieth percentile, men are all very similar in capacity, but above the 99th. percentile they differ very markedly: Henry Ford I was by far superior to his competitors. Thus there appear a few great concentrations of capital; there will be people who have resources to risk on developing new ventures.

The driving force of modern governments is the belief that the greater part of the community can advantage itself by oppressing the remainder ¾ the alcoholics, the Jews, the children, the immigrants. Everywhere we see compulsory prisons bursting with inmates. But this belief is by no means indisputable. If the alcoholics, et al , are denied driving licenses, then indeed everyone else is better off relative to the minority. But that minority ¾ one would suppose ¾ were not getting a free lunch; either they paid someone a price he thought adequate beforehand, or they paid someone damages that the jury thought adequate in hindsight. The market makes the actors better off absolutely (until Red Ink makes its appearance) and the market does not care whether any actor is a minority or not; all that matters in the market is whether one can put up a deposit or a bond or some other security.

Today, some individuals do get a "free" lunch, or at least a lunch for which they do not pay. What would happen to lunatics if the taxpayers did not shelter them in public institutions? They are not equal, so they have no rights; citizens could collect them and use them as draft animals, or as organ "donors" for transplants, or just as meat. But, one imagines, even a lunatic has kith or kin somewhere; a cousin or an acquaintance would see that the lunatic was entrusted to a farm run by Jews or Christians, rather than being caught by a notorious slave-driver.

Similarly, if the State could be prevented from laying its bloody hands on criminals, then the convicts would be protected by hungry corporations eager to exploit the powers of the human mind. And then the police officers and prison guards and probation officers could learn how to make an honest living, and eat only what other people freely gave them. (There might, I admit, be a handful of officers occupied in keeping the inmates of the penitentiary free from molestation.)

The advice of the great criminal defender, Louis Nizer, was "Never Plead Guilty!" The criminal justice system only works because more than 90%, perhaps 95%, of the accused parties plead guilty. As long as they do so, the U.S., and the States, will continue to bring the prosecutions ¾ obviously. When the citizens stop pleading guilty, then the prosecutors will stop bringing cases, if only because they will not have jails enough to hold all the defendants and material witnesses.

You have quite a good chance of never needing to defend yourself, in fact, because the prosecution is desperately inefficient at simple things like getting its witnesses to the right court at the right time. I have found that it is very possible that the judge will dismiss the case when he finds that you want to contest it, if it will oblige him to take an implausible position.

Also, you have an excellent defense ¾ and the prosecutors know it. Every lawyer learned in law school that there are two kinds of crimes, viz. "common law crimes" (as mentioned earlier, the "common law" is the law found by a number of courts reconciling their decisions) and statutory crimes, crimes against the state rather than against your equals. The common-law crime is self-evident, it must be wrong. A well-known example is rape. Common-law rape is the act of procreation, if performed without the consent of one of the parties; you are justified in complaining if you get stuck with a descendant you didn’t want. Obviously, the crime cannot be committed if the woman is not capable of conceiving ¾ if she is less than ten, or perhaps twelve, years old. But statutory rape can be committed against an immature female, one who appears to be only a child!

Today, one frequently hears insolent public officers deploring the fact that many young women bear children out of wedlock. The fact that the father would be prosecuted for statutory rape if he married the mother is conveniently over-looked . . . .

Similarly, it stands to reason that a highway must have a minimum speed: the drivers make room for more traffic by slowing down, but the flow cannot be a maximum at stand-still, there must be a minimum speed at which the traffic flow is a maximum ¾ anyone who drives slower than this obstructs all the people (his equals) behind him. A minimum speed limit wrongs no-one: every (reasonable) man strives to avoid denying the right of way of his equals. But the legislatures are imposing maximum speed limits (often, the maximum speed limits are capricious, perhaps the same uphill and down); such limits kill, particularly, the best drivers, who would have been able to exploit better vehicles if they could have amortized them faster.

The difference between these two kinds of crime is, that in the case of the crimes mala in se, doing the act demonstrates "evil design", or mens rea (unless you are drunk, or drugged, or otherwise in a state of diminished responsibility.) If the crime is against the state, then a reasonable man can honestly believe that it is not wrong; doing it does not prove "evil design."

The courts of the U. S. do not acknowledge "substantive due process," the distinction between criminal cases (which require intent) and civil ones (where there can be liability for acting negligently). However, many of the States (particularly radical† ones, formed by several counties acting unanimously) do have it: there may be such wording as "In every crime or public offense there must be a union or joint operation of act and intention . . . ." If you look at the Penal Code, or wherever the criminal law is found, you may find that your State is one that does. (You may have to look long and hard; the rule is, that the more important any question is, the less law can be found. This is because the courts go through the cases backwards, considering the least important questions first, so that anything important becomes neglected and forgotten.)

Thus you may well have the statute book on your side in the State courts. Even if you do not, the prosecutors learned "common law" in the law school, they know full well that you are right in the eyes of all reasonable men ¾ they do not particularly want to make fools of themselves by saying what they know is false. I find that, quite regularly, I lose in the court of first instance, the trial court . . . but when I appeal to a court of record, the prosecutor just doesn’t want to draw attention to what the law really is: on some pretext or other (perhaps, the reporter loses his tape of the proceedings), the case against me is dismissed before I get a hearing in the appeal court.

The only reply that the ordinary county attorney can make is to bleat "The police power!" Listen to what this power is, as set forth by Chief Justice Shaw of Massachusetts in Commonwealth vs. Alger, 7 Cush. [7 Mass.] 85, 1851.

. . . the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of same.

The term "subjects" should go down really well, outside the erstwhile English colonies.

My experience has been that the prosecutors are standing on no law at all; the precedents they cite do not support their positions, or else are obiter dicta (mere comments that are not essential to the reasoning.) The one State I know where there is a genuine difficulty in seeing what is wrong is California. The Courts of Appeal in numerous cases have held that intent is not necessary for conviction. But scrutiny shows that the Supreme Court decisions upon which the Appeal Courts stand are cases mala in se (e.g. altering a public record without the agreement of all parties, sale of short weight by a proprietor;) what the Supreme Court has ruled, in truth, was that proof of intent was not necessary (because, where the act is wrong in itself, the intent to do the act is in se wrongful ¾ unless the defendant proves negligence or drunkenness or ignorance of fact.)

I admit that just a few of us defending the cases will not make a difference in any realistic time frame ¾ but once you start, then you can persuade others to join in . . . . Obviously, once all the people of a county decide to contest the charges against them, then the State will find some other county to persecute.

This is one context where my words can be good only for me. I speak fluent English and am recognized as an educated man, I am given a courteous hearing in court. But others may find that they are not . . . .

Remember that there are numerous provisions of the Constitution on your side. Police officers, and any State officers acting in only part of the State, and U. S. officers acting in less than all of the States, are violating the guarantee of a republican form of government, Art. IV, Sec. 4. If any "law" was not first enacted by elected representatives from the counties (and not by a State officer, or any unelected officer) the same provision has been transgressed. (The operative word is "first," democracy means that decisions go from the many to the few.) If it is a U. S. regulation, then both Sec. 1 and Sec. 8 of Article I are violated: "All legislative powers herein granted shall be vested in a Congress . . . ", "The Congress shall have power to . . . make all laws which shall be necessary and proper . . . ." If it is a crime under a U. S. statute, but a "crime" that is not a violation of the rights of the citizens of each and every State, then Congress has exceeded its delegated powers; the Tenth Amendment is the defense.

You may find that the judge presumes to conduct the prosecution; if so, look and see if your State constitution provides for separation of powers ¾ it is the function of the executive to present a case.

In California, Art. III, Sec. 3, reads:

The powers of the State government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.