America, the Anti-Theft Society
The businessman’s tool is values. The bureaucrat’s tool is fear.1
—Ayn Rand, Capitalism: The Unknown Ideal
From the dawn of mankind to the present, theft has been the way of the world. The great empires were established through large-scale theft. From ancient history alone, we can recall the Assyrians, the Babylonians, the Greeks, Alexander the Great, and the Romans. From antiquity to the present, tyrannies have stolen the wealth of the people. One of the greatest malefactors was Louis XIV of France, the Sun King, with all his regalia, looting the wealth of his country and distributing it among his sycophantic nobles. Entire social structures, from feudalism to the caste system, have been put in place to confiscate people’s earnings and possessions, and thus institutionalize theft. Thievery is also one of the oldest professions, and the most ancient written works in every culture speak of people making off with the goods and possessions of others.
For centuries, large-scale theft required no defenders because it had no critics. In Ibn Khaldun’s Muqaddimah, the Islamic historian describes without embarrassment one looting upon another. He speaks of the Bedouins and later the Muslims taking booty—including slaves. Of the Bedouins he writes, “It is their nature to plunder whatever other people possess. They recognize no limit in taking the possessions of other people.” Of the Muslim fleets in the Middle Ages, he writes, “The Christian nations could do nothing against the Muslim fleets, anywhere in the Mediterranean. All the time, the Muslims rode the wave of conquest. There occurred then many well-known episodes of conquest and plunder. The Muslims returned victorious with booty.” Although Khaldun is a humane scholar, we detect no moral condemnation whatever of any of this behavior; on the contrary, his accounts move between purely descriptive and frankly adulatory.2
When the ancients did stoop to justify theft, it was with the simple maxim that might makes right. The classic expression of this is in Thucydides’s Peloponnesian War. The Athenians approach the tiny island of Melos and inform the Melians that they must ally themselves with Athens and pay tribute, or else they will be destroyed. The Melians appeal to justice but the Athenians will have none of it. It is the law of nature, they say, for the strong to rule over and take advantage of the weak. In the words of the Athenian delegation, “The strong do what they have the power to do and the weak accept what they have to accept.”
The Melians admit they are weak, but say so for the very reason that they don’t want to interfere in the conflict of great empires; rather, they wish to stay neutral, and since they are a small island, they will bother no one. The Athenians emphasize that precisely because the Melians are small, they must not escape. If the Melians escape, then larger territories may refuse to pay tribute. The Melians refuse to succumb, and the island is besieged and then wiped out. All the able-bodied men are killed, the women and children enslaved, and Athens resettles Melos with its own citizens.3 We see here not merely how strong nations have historically had no qualms about looting or leveling weaker ones, but also how terror is a standard mechanism used to bring the vulnerable to heel.
Even today, theft is a common way that private individuals and governments obtain wealth and possessions. Broadly speaking, we can say there are two types of theft: private theft and public theft. Private theft is perpetrated by individuals or crime syndicates. Public theft is perpetrated by public institutions or governments. Here at the confinement center, you can find both.
Steve is a white guy I met who has served time in prison both in Mexico and in the United States. I met Steve in the confinement center’s indoor workout room. A short, slim fellow who wears army pants and a baseball cap back to front—to show the adjusto-strap to advantage—Steve wiped off the weights with his towel. “Wanna use these?” he asked. Ordinarily I would have been surprised to see such courtesy. But I had been in confinement for a little while: I knew that most people here are extremely courteous. When I watch TV no one will change the channel without asking me. Big black guys who walk in front of me will duck, so as not to obscure my view.
It all makes sense, I guess. When violence lies just below the surface, it’s important for people to develop a code of good manners. Besides, fights carry a heavy penalty for these guys. It’s called “Go back to prison. Do not pass go. Do not collect two hundred dollars.”
Steve was arrested, he told me, when the cops found twenty kilograms of cocaine hidden in the back of his car. He had purchased the stash in Mexico from a guy named Angel with the intention of bringing it across the border and selling it to a dealer in America. Steve said he had gotten the drugs past the border control, and thought he was home free. He was now on the American side, driving in the Arizona desert.
Then, out of nowhere, a group of police cars appeared and surrounded his car. The cops pulled out their weapons and made him lie flat on the ground. They searched the car and found the drugs. Then, Steve recalled, a car pulled up and a familiar figure emerged: Angel. The cops and Angel exchanged greetings. The cops then returned Angel’s drugs to him, and Angel split the money he got from Steve with the cops. Then Angel drove away, and the cops took Steve to jail.
I find Steve’s story revealing because it is a story about theft, and yet the one guy who ended up in prison was not a thief, while the real thieves all got away. Steve broke the law because he was trafficking in illegal drugs, but he didn’t steal from anyone. He actually paid for the drugs. Angel, by contrast, sold the drugs to Steve but then got them back from the police. So Angel was actually stealing from Steve. And the police, by splitting Steve’s money with Angel, proved that they were also thieves, and Steve—far from being a thief—was actually the victim of their theft.
This case may seem anomalous, but it is fairly common. Cartels routinely bribe U.S. government employees of the Border Patrol and the Department of Homeland Security to enable alien and drug smuggling across the border. Cash bribes and even sexual favors are sometimes doled out in exchange for sensitive information, necessary documents such as immigration papers, or simply to allow contraband or illegal aliens through inspection lanes. Even terrorists can make their way across the border if they pay off the right people.4
As this example shows, there are different kinds of thieves; some of them wear uniforms, and thievery is sometimes perpetrated under the guise of stopping injustice and upholding the law. I guess I can see where some of these inmates get the idea that all of America is a racket and that everyone is somehow in on it. Once I found this way of thinking to be borderline crazy; now I see there’s an element of truth in it.
Part of people’s confusion over my presence in the confinement center was that I hadn’t stolen anything. In fact, in my early days at the confinement center, I had trouble explaining to the staff what my offense actually was. “So, you were allowed to give ten thousand dollars and you gave thirty thousand?”
“Yes,” I said. “I used two straw donors to give ten thousand dollars each.”
“Of their money?”
“No, of my money.”
“So you gave too much money.”
“Exactly.”
“That’s why you’re here?”
“Yes. For exceeding the campaign finance limit.”
“Oh, man, that is such bullsh*t.”
Once I began to converse with fellow inmates, things went pretty much the same way. Initially guys started calling me “doctor” in the apparent belief that since I was Indian I must be a doctor. I explained that I was actually a writer and filmmaker, inspiring one guy to ask, “So why are you here?”
I said, “I was raising money for a friend of mine who was running for office.”
He got pretty excited.
“Really?” he said. “Can you raise money for me?”
“No,” I said.
He asked me to tell him about my offense, and I tried to, but he seemed uncomprehending.
“You gave too much money?”
“I did.”
“Then—you did what?”
“Nothing.”
“Come on, man. You shot someone, you paid someone off?”
“Absolutely not.”
“You must have pissed off some very important m*therf*ckers.”
“Yes,” I agreed, thinking of one in particular.
“Holy sh*t! I’m really sorry, n*gger. And I thought you were a doctor who stole money from Medicare or something!”
Thievery is pretty common in prison and in the confinement center, although on a very petty scale. An African American, Shiloh, told me how he essentially ran a private store in prison. “I sold raw eggs, fruit, pies, and candy bars,” he said. “I was a regular Costco.” Mostly the provisions were pilfered from the kitchen. Then he sold them to other inmates. “People would pay me in cash, or sometimes they would pay me with sweatpants or sneakers.”
The white supremacists, in particular, loved his fruit bags. “I would make a couple dozen fruit bags every day with apple slices, maybe an orange, sometimes even peaches and kiwi. The racists loved it! I was their favorite black guy in the prison. I didn’t mind selling to them. It was good business, man. It kept me afloat with cash for the whole time I was there.”
In confinement, most of the thievery I observed occurred at the poker table. One time the Filipino guy came out raging, “I’m never playing again! This is bullsh*t!” He seemed inconsolable, until an older white guy got it out of him that “I was cheated out of ten dollars.” The white guy reminded him, “You are playing with m*therf*cking criminals. Of course they’re going to cheat you.”
The Filipino guy persisted. “I know exactly who cheated me. I know exactly where that money is.” To which the white guy said, “That’s not the hard part. The hard part is getting that m*therf*cker to actually give you the money. Good luck with that, n*gger.” The Filipino said, “I’m not going to be cheated. I’m going to go kick his ass.” The white guy dissuaded him. “Don’t be stupid. You want to get into a fight and go back to prison over ten bucks?”
Happily the Filipino saw the good sense of that observation and got into his bunk, still sputtering with rage. The next morning the first words out of his mouth were “I still want my money.”
One may naïvely expect the authorities at the confinement center to make efforts to restrict theft. I call this “naïve” because the whole structure of the corrections system appears designed to engage in theft. It’s not obvious, however, how this theft might occur or who its targets might be, so let’s look more closely at how the system engages in its own distinctive brand of rip-off.
For the first couple of months I used to play chess with a white guy, Edgar, who was one of the few white-collar guys in the confinement center. Edgar looked out of place in confinement; he wore jeans, long-sleeve shirts that were never tucked in, and had windblown hair and a perpetual tan that suggested he had just returned from the beach. Edgar was just in for sixty days, having served eighteen months at the Taft prison camp. Right when he checked into camp, he recalled, the warden called him in for a meeting.
“Edgar,” the warden said, “I notice that you haven’t completed your GED.”
Edgar told him, “I don’t need my GED. I am an investment banker. I’ve worked at Lehman Brothers. I ran my own company for several years. I got caught up in the insider trading thing.”
“Yes,” the warden said, “but why didn’t you ever finish high school?”
“It’s a long story,” Edgar said. “The short version is that I dropped out in the eleventh grade, moved to Seattle, and went to work and never looked back.”
“Here at Taft,” the warden said, “we will make sure you finish your GED.”
“Again,” insisted Edgar, “I am an educated man. I read several books a week about history, politics, finance, and taxation. I am way past the high school thing.”
“Even so,” the warden said, “I am going to make sure you get your GED.”
At first, Edgar told me, “I thought I was dealing with a retard. But something caused me to press this guy, and finally he admitted that for every prisoner who gets his GED, the prison gets an additional twenty-five hundred dollars. Now, this guy knew that for some of the prisoners they might never make it—they might take the test and fail—but I was already an educated man, and so I was a surefire bet for him to get that twenty-five hundred.”
“All that,” I said, “for a couple of thousand bucks?”
“There are two million prisoners in the United States,” Edgar said. “The whole system is designed to keep this number high, and going up if possible. Each prisoner brings the system around fifty grand a year. You do the math. It works out to one hundred billion dollars a year.
“That’s just the starting point. The next challenge is how to use the system and the inmates to get more money out of the government. So they throw out furniture that’s perfectly usable and put in for new furniture. They have classes where people show up, sign in, and then leave. They charge for the class, even though no one actually takes the class. They offer services that no one wants, and that produce no results, but for which they can bill the government. My GED—which I did get, thank you very much—is just a small part of this very big racket.
“This is the key to understanding the justice system in America. It is based on how to extract the most money.”
Edgar alerted me to two government programs I’d never heard of that corroborated his cynical perspective. The first is the U.S. government’s use of tens of thousands of illegal immigrants each year as slave labor. These illegals are captured and placed in detention centers, where they then do full-time labor in exchange for wages of approximately one dollar a day.
“That’s less than people make in India!” I said incredulously.
“Look it up,” Edgar said, and so I did. I found a New York Times article on the subject. Edgar was right.
The article said that roughly half the illegals that appear before U.S. immigration courts are, for one reason or another, not deported. Currently there are around 60,000 of them in detention facilities around the country. The government has them at its mercy. So it makes them an offer they find hard to refuse: work for us and for virtually no money. Since illegals in captivity aren’t covered by labor laws, this exploitation of their condition is perfectly legal. And there are takers, mainly because the illegals don’t have any other way of earning money.
One fellow, Pedro Guzmán, a native of Guatemala who was held at the Stewart Detention Center in Lumpkin, Georgia, told the Times, “I went from making $15 a day as a chef to $1 a day in the kitchen in lockup.”
Of course, if someone in the private sector hires illegals for a dollar a day they can get in big trouble on multiple fronts. These rules, however, do not apply to the U.S. government. According to Carl Takei, a lawyer with the American Civil Liberties Union’s prison project, “This in essence makes the government, which forbids everyone else from hiring people without documents, the single largest employer of undocumented immigrants in the country.”5
A second government scheme Edgar alerted me to is called civil forfeiture or, more colloquially, “stop and seize.” In April 2015, twenty-two-year-old Joseph Rivers boarded a train to Los Angeles to pursue his dream career as a music video producer. On him he had his life savings, $16,000.
At a train stop in Albuquerque, an officer from the Drug Enforcement Administration (DEA) approached Rivers and questioned him about his travel plans. Then he demanded to search Rivers’s bag. Rivers consented, and the officer found an envelope with the cash.
The officer then seized Rivers’s money through civil asset forfeiture laws. Rivers has never been charged with a crime, yet, as of this writing, the DEA has yet to return his money.
How, you might ask, can the government do this? Doesn’t Rivers have constitutional rights? Yes, he does. But the government in forfeiting his money is exploiting an ambiguity in the law. Technically the government isn’t doing anything to Rivers. Rather, the government is accusing the cash itself of being part of a crime. And since cash by itself doesn’t have constitutional rights, the government simply takes it. The person carrying the cash then has the obligation to prove ownership and to prove that the money is not being used for any criminal purpose. Only then is the money returned.
Sound crazy? Originally civil forfeiture laws were passed to help the government deal with drug dealers and money launderers. But now the system is routinely used to target law-abiding citizens.
As the Washington Post revealed in an investigative report on the stop-and-seize program, the amounts of money confiscated each year are enormous. In 2012, the government seized $2.5 billion in cash alone from 62,000 Americans without warrants or indictments. In addition, the government confiscated another $4.3 billion in property: cars, boats, electronics, jewelry, and even homes.
Federal and local law enforcement authorities typically work together to acquire the cash and possessions of citizens. Then they split the money under a program that the government calls, without irony, Equitable Sharing. If local law enforcement pulls off the seizure, it usually keeps 80 percent of the money and sends 20 percent to the federal government, which deposits it in the U.S. Department of Justice’s Asset Forfeiture Fund. The DOJ can then spend the money on various law enforcement activities. This sharing of the loot also enables local law enforcement to evade state and local prohibitions against civil forfeiture.
The Internal Revenue Service has also gotten into the act. In 2012, the IRS made 639 civil forfeitures, almost five times as many as it had in 2005. Only about 20 percent of IRS confiscations led to a criminal case, which means that lots of innocent Americans had their lives and businesses wrecked by civil forfeiture.6
For years I had thought of these shenanigans in terms of government waste. I was accustomed to reading about “pork barrel” projects. Republican senator Tom Coburn publishes an annual Wastebook listing outrageous examples of how the federal government spends money. The Government Accountability Office (GAO) publishes its own reports on the topic. Here are a few examples.7
Each year the federal government hands out more than $500 billion in farm subsidies. Once advocated as a measure to save the “family farm,” currently these payment benefits go to a small number of politically well-connected recipients, some of whom live in cities like Chicago and New York, where there are no farms. Only 10,000 recipients get farm subsidies, each receiving an average of $417,000. Some of the recipients are billionaires like Paul Allen, David Rockefeller, and Penny Pritzker.
According to the GAO, each year the government makes approximately $125 billion in improper payments. This means that the government is handing out taxpayer money to people who are not entitled to receive it. In addition, sheer duplication of federal programs and services costs $45 billion annually. While this has been known for years, no serious efforts are made to eliminate this duplication.
The inspector general for the U.S. Office of Personnel Management reports the federal government pays $150 million in retirement and disability benefits each year to people who have died. These checks are then cashed by the dead person’s family. Again, this problem can be corrected through more effective data collection, but the government seems unwilling or uninterested in correcting the problem.
Each year Congress allocates money for defense programs that the Pentagon doesn’t want. In 2014, the government designated $90 million to upgrade the M-1 tank. The Pentagon says it has enough tanks, and Army Chief of Staff General Ray Odierno testified against the appropriation.
The Defense Department spent $500 million to purchase military planes for the Afghan Air Force that have since been scrapped because that air force could not afford to maintain them.
The Department of Homeland Security has one of the largest fleets of vehicles of any federal agency, but according to an inspector general report, 60 percent of its vehicles are scarcely used at all; in 2012 alone, these vehicles cost between $35 million and $50 million.
The IRS spent $11.6 million to buy computer software that remains unused. This is because the IRS doesn’t have the space for it and does not have an effective inventory system for keeping track of its computer software.
Ninety members of Congress—mostly Democrats, but some Republicans as well—receive federal pensions in addition to their congressional salaries. Democratic congresswoman Joyce Beatty of Ohio, for example, gets $253,323 from her government pension in addition to her annual $174,000 congressional salary. This practice is commonly known as “double dipping.”
Federal agencies paid nearly $50 million to the National Technical Information Service, a division of the Department of Commerce, for information that is available for free online.
Cabinet and federal agencies routinely spend tens of thousands of dollars commissioning portraits of senior government officials who like seeing their own image on the wall when they come to work every day. Commerce Secretary Gary Locke paid $19,500 to have an artist paint his portrait; Energy Secretary Steven Chu had his official portrait made for $21,100, and EPA administrator Lisa Jackson had her portrait done for nearly $40,000.
The DEA pays informants working at Amtrak to disclose passenger names. One Amtrak employee was paid $854,000 over twenty years. The DEA could have received this information free since the Amtrak police are part of a national law enforcement network that shares information among its partners.
Congress assigned $652,000 to build a new visitor center on the highway from Talihina, Oklahoma, to Mena, Arkansas, even though this particular highway already has three visitor centers.
NASA allocated $3 million to study how Congress works.
The National Institutes of Health currently has a $500,000 research project to figure out why obese girls are asked on fewer dates. The agency also spent $330,000 to study the sex and drug habits of gay and transgender men in Peru. Another $371,000 was given to study if mothers love their dogs as much as their kids by examining the way their brains respond to pictures of both.
The National Science Foundation (NSF) awarded $200,000 to a Yale University research project to figure out whether Wikipedia has a gender bias. The NSF also allocated $5.2 million for Columbia University to develop a video game called “Future Coast,” where rising seas cause weather calamities, in order to “spur climate change activism.”
The Department of Agriculture paid one coffee plantation in Hawaii $45,000 to use solar power to dry coffee beans, even though bean farmers all over the world have used the sun to dry their beans for centuries.
The National Endowment for the Humanities awarded Hope College a $300,000 grant to develop a game that connects Civil War reenactors online.
Waste is when you spend money on something you don’t need, because you wrongly think you need it. Or you do need it, but you spend too much on it. None of Coburn’s examples involve waste. Rather, the government is quite deliberately spending the taxpayer’s money on projects that benefit the bureaucrats and their cronies. In many cases, members of Congress are buying votes with taxpayer money. So it’s corruption. And it’s theft. The money is not being stolen from the government; it’s being stolen by the government. The victims are the everyday folks who work and pay taxes to fund this corruption and theft.
Returning to that prison warden who wanted an additional $2,500—he was a government agent filching from some guy who had to work hard to earn that money. I now saw not just the excesses of the prison system, but all government programs that went beyond their legitimate purpose, as elaborate schemes to rip off American taxpayers and workers. I realized right away that these were the thieves who would surely prove hard to police, because, after all, they were the police.
Government theft is now widespread in America, and yet America was intended to be an alternative to all this. This country was founded as an anti-theft society. We don’t normally see it this way. We usually hear about grand principles: liberty, equality, and so on. But at the core, America is a country established in order to let you keep your stuff. Let’s call this wealth protection. America is also a country designed in such a way that you can get stuff in the first place. Let’s call this wealth creation.
Before America, the world was defined by two characteristics: theft and material poverty. By and large, it was a world of scarcity and very limited horizons. Americans have no idea what it is to live in such a world; it is, to use the title of Peter Laslett’s famous book about pre-modern European society, “the world we have lost.” Today we have to go to the poorest quarters of Africa or India to see it.
In her remarkable book, Behind the Beautiful Forevers, Katherine Boo describes life in an Indian slum. Describing the Annawadi district on the outskirts of Mumbai—just miles from where I grew up as a child—Boo tells us the story of a teenager, Abdul Hakim, who lives in a dilapidated hut and supports his family by sorting garbage and selling it to recycling plants. Abdul, she tells us, lives with and in garbage: empty water and whiskey bottles, mildewed newspapers, used tampon applicators, pieces of aluminum foil, old shoes, broken umbrellas, yellowed Q-tips, snarled cassette tape, and torn plastic casings that once held imitation Barbies, occasionally even maimed throwaway toys. Abdul is an expert at sorting this garbage. He knows garbage and feels comfortable around garbage. When he is scared, he goes and hides in the garbage.
Abdul is a very cautious boy. He works hard, yet he makes barely enough to survive, and there is no margin for error. “It’s so much tension out there, the mind cannot wander,” he says. “Every second you have to be alert.” His aspirations are modest. He saves money to construct a thin barrier so that his family’s hut can be separated from the hut right next to it. This will give his mother a modicum of privacy. He is hoping one day to reach the lower middle class. He has no other goals. A girlfriend is for him a complete extravagance; he believes that love is too much of a luxury for a poor boy like him. Besides, who can be expected to fall in love with a boy who smells of garbage?
Abdul focuses on his practical problems. He worries about such catastrophes as monsoon flooding, which can destroy the family hut; or disease, which can put him out of work or inflict upon him impossibly high medical bills; or even the risk of being struck by a car in Mumbai’s chaotic streets. Most of all, Abdul watches out for others who want to steal from him the little he has. It is thieves, rather than fate, that threaten to ruin Abdul’s fragile existence.
In order to survive, Abdul must avoid other scavengers who not only steal his merchandise but also sometimes seek to harm him so that he is disabled from working. This then opens up fields of opportunity for them. He must also elude the machinations of envious neighbors—also residents of the Annawadi slum—who don’t want Abdul’s family to get ahead and so do what they can to pull them down. There are gangs in the slums that extort money from young entrepreneurs like Abdul, seeking to obtain for free what Abdul makes through laborious effort.
Finally there are police extortionists and corrupt government officials who know that they can use their power to force or intimidate poor slum dwellers into lining their pockets. Boo describes one especially sly investigator, named Poornima Paikrao, who accumulates false but incriminating evidence against Abdul, knowing that she can blackmail the family into paying her to avoid the risk of a police prosecution. None of these people have the slightest concern about destroying Abdul’s life.8 In the words of an Indian proverb, to them the tears of a stranger are only water.
This is the way the world is for about half the existing population, and it is also the way the world used to be before America came along. There are no Abdul Hakims in America, and that’s because America solved the problem of grinding scarcity that Abdul’s life so poignantly represents. Between 1776 and 1789, the American founders devised a new system of government, what they called a Novus Ordo Seclorum, a new order of the ages, to enable the ordinary person to flourish and have an abundant, fulfilling life.
The founders were in a unique position; while previous societies were founded on “accident and force,” as Alexander Hamilton put it, America was founded on “reflection and choice.”9 In other words, the American founders actually had a chance to start afresh, to think through in terms of first principles why people establish governments at all. To do this, the founders relied on the philosopher John Locke’s idea of a “social contract.” The social contract is a hypothetical or imaginary contract, but it helps to understand why people living without government—in what Locke termed a state of nature—might come together to form a society with ruling powers.
In his famous Second Treatise, Locke argued that in the state of nature we possess three things: life, liberty, and property. Each person is the owner of his or her own life. Each person also has liberty of action and thought. Finally, each person can through labor and exchange acquire possessions, however primitive or basic, such as tools, or a dwelling, or domesticated animals. These things—life, liberty, and property—are ours by right. No one can justly take them from us. Nor do we have the right to take away the possessions of others.
The problem, Locke understood, is that in the state of nature there is no justice, which is to say, no adequate protection for life, liberty, and property. The state of nature is the law of the jungle, where might makes right. Locke argued that to reduce their vulnerability, people contract with each other and enter into a pact of mutual self-protection. They establish governments for the protection of their life, liberty, and property. In short, the core purpose of government is a police function. Government exists to protect us from foreign and domestic thugs. In this way might is mobilized on behalf of right.
The founders agreed with this analysis. As James Madison put it, “The primary objects of civil society are the security of property and public safety.” In the same vein, Hamilton stressed that the “great object of government is personal protection and the security of property.” In The Federalist, Hamilton wrote that “a prosperous commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful, as well as the most productive, source of national wealth, and has accordingly become a primary object of their political cares.” Through business and trade, Hamilton stressed, “The assiduous merchant, the laborious husbandman, the active mechanic and the industrious manufacturer . . . all orders of men look forward with eager expectation, and growing alacrity, to the pleasing reward of their toils.”10 In other words, America was a country structured in a way that encouraged people to earn, and to keep what they earn, the anti-theft society par excellence.
For the founders, the most obvious form of thievery involved the taxes and duties imposed by the British. Viewed in hindsight, the actual taxes and duties seem insignificant, but for the founders there was a principle involved. In the Declaratory Act, passed in 1766 by the British Parliament, the British insisted upon a right to bind the colonies “in all cases whatsoever.” Why should a foreign government have such complete authority over their life, liberty, and possessions? For this the founders had a simple name: tyranny.
Why should the king and the British Parliament, from thousands of miles away, be permitted to take from Americans what was made and earned from the sweat of their brows? The founders considered this to be straight-out theft. That’s why they threw all that tea into the bay, launching the American Revolution and, much later, inspiring the Tea Party movement. The American Revolution was intended to end foreign tyranny and halt this illicit transfer of wealth—this international theft—being perpetrated by the British upon us.
But even when foreign thievery has been stopped, the founders realized, we need a government strong enough to resist domestic thievery. Consequently the founders established a government dedicated to the protection of property rights. In No. 10 of The Federalist, Madison writes that “the first object of government” is “the protection of different and unequal faculties of acquiring property.”11
Notice that this is not an incidental function of government; it is the main one. Madison recognizes at the outset that accumulations will be uneven or unequal. It is precisely to facilitate these inequalities that governments exist. The police are here to protect not only our lives but also our possessions. No one has a right to steal from someone else, and no group is entitled to appropriate the wealth or possessions of another group.
The founders realized that obviously there would be disagreements about how governments should go about exercising these basic functions. These disagreements spring from the diversity of human nature. So, for example, various people in a society may disagree over the nature of a foreign threat and whether going to war is necessary to protect the nation’s security. Similarly, people may disagree over whether to impose taxes, or how much taxes to impose, or on whom, to pay for the war.
It would be nice not to have these disagreements, and to decide questions based on unanimous agreement. Yet unanimous agreement can almost never be found—it is a chimera—and thus if unanimity were required for governments to act, obviously there would be anarchy. Consequently the founders created a system based on majority rule, to be decided by free elections.
Majority rule—let’s call it the rule of 51 percent or more—is the best practical surrogate for unanimity. It is an imperfect surrogate, because even under majority rule there are dissenters who can number as many as 49 percent. But the only alternative to majority rule is minority rule, whether that minority be just one or a few or the full 49 percent.
Clearly it is unjust for a minority to rule over the majority; this would simply be another form of tyranny. So majority rule is the best way for a society to decide disputed questions about how government should go about achieving its legitimate aims. A minority may be frustrated by decisions made in this way, but that frustration is always temporary, because minorities can always work to persuade more people to their side. In this way a minority can become a majority by the time of the next election.
This happened in 1800, when Thomas Jefferson defeated John Adams, and power was peacefully transferred from the ruling party to Jefferson’s party. Political scientist Harry Jaffa pointed out that nothing like this had ever occurred in world history. Previously, Jaffa writes, vanquished rulers had been executed, imprisoned, or exiled, as in the English Civil War and the Rome of the Caesars.12 But when Jefferson won, the Federalists quietly vacated office and went back to private life, continuing to organize politically and hoping to return to power in a future election. America, then, invented democracy in its modern form.
What happens, however, if the government, the main instrument of protecting citizens from foreign and domestic theft, itself becomes a thief? This may seem like a very remote likelihood, but the founders did not agree. They recognized at the outset that the same larcenous motives that may cause one man to steal from another could likely induce governments to steal from the people.
“Government,” of course, refers to the people running the government. Even in a system of majority rule, the founders knew, government officials could at the behest of a majority of citizens threaten the life, liberty, and property of citizens who were not part of that majority. What is to prevent 51 percent or more of citizens from electing representatives charged with suppressing the liberty or taking away the wealth and possessions of people in the minority?
The founders were acutely aware of this danger. As Jefferson put it in Notes on the State of Virginia, “An elective despotism was not the government we fought for.”13 It is not an exaggeration to say that this threat—tyranny of the majority—was one of the founders’ main concerns in drafting the Constitution. It was perhaps the chief reason that America has a constitution at all.
The British, by contrast, have no constitution. British law is basically common law and the laws made by the legislature. Those are the supreme laws of the land. But in America the common law and the laws made by the legislature can be overridden by the Constitution, which is the supreme law. The Constitution, in a sense, trumps majority rule. It exists for the purpose of keeping governments—and majorities—in check.
How does the Constitution protect the life, liberty, and property of Americans from the tyranny and larceny of the majority? It does so in two ways. First, it establishes blocking and thwarting mechanisms within government to prevent government from becoming oppressive. Our Constitution establishes separation of powers so that the legislative function, the executive function, and the judiciary function are each distinct.
Then the Constitution installs checks and balances so that each branch, in a sense, becomes a watchdog for the other. The president can veto laws passed by Congress, and the Supreme Court can invalidate laws inconsistent with the Constitution even when both Congress and the president approve them. These blocking and thwarting systems are there to ensure that “factions,” as Madison called them, could not by themselves, or even in coalition, effectively steal from the people or thwart the central protective purposes of government.
Second, the Constitution limits the size and scope of the federal government so that it can only do certain things and no more. We have a system of limited government and enumerated powers. Basically the government is authorized to provide for defense and to protect the equal rights of citizens to life, liberty, and property. In addition—and this provision requires careful attention to its wording—government is empowered to make laws for the “general welfare.”
The term “general welfare” must be understood in contradistinction to “particular welfare.” The government does not exist to advance one group over another but to protect the general or common welfare of all citizens. This, then, is the full scope of what the national or federal government is permitted to do. Beyond this, it is permitted to do nothing. As if to italicize the point, the Constitution clearly declares that all power not specifically entrusted to the federal government is retained by the states and by the people.
The absolute determination of the founders to limit the size and scope of the federal government became clear in the debate surrounding the addition of a Bill of Rights to the Constitution. Hamilton opposed a Bill of Rights, but for a very interesting reason. We don’t need one, he said, because why prohibit the government from doing things that it has not been given the power to do?14 Why say that government shall make no law restricting religion or speech when the Constitution does not grant the government the authority to make such laws?
Advocates of a Bill of Rights so intensely feared a thieving, aggrandizing government that they insisted that many of these rights be specified anyway. That’s how we got a Bill of Rights whose provisions typically begin, “Congress shall make no law.” The Bill of Rights is manifestly designed to be a limitation on the power of the federal government, which is to say, the majority. The Supreme Court is charged with enforcing these rights in the full understanding that this requires limiting majority rule. Nothing in our Constitution empowers majorities to take away the life, liberty, or property of citizens who happen to be in the minority. The Constitution is our common charter to prevent these forms of stealing.
This interpretation of the limits to majority rule can be confirmed by considering the position of America’s supreme student of the founding, Abraham Lincoln. Lincoln is widely understood to be the great champion of government “of the people, for the people, and by the people.” He was an unwavering believer in democracy and majority rule. His argument against southern secession was, in large part, that the South was simply attempting to undo the result of a democratic election. How can democracy work if those who lose elections simply break away from the body politic?
At the same time, Lincoln emphasized with utmost clarity that majority rule does not confer upon the majority the right to exceed its constitutional bounds. Elected governments have no more right to usurp powers not delegated to it by the people through the Constitution than nonelected governments do. For instance, majorities cannot take away the fundamental rights of speech, conscience, and assembly because those rights were never surrendered to the jurisdiction of majority rule. Moreover, majorities are not permitted to endanger the life, liberty, and property of minorities while securing their own. The rights of the minority are no less inviolable by the people than by oligarchies and kings. Thus Lincoln assured the people in the southern states that if he were violating any of their constitutional rights, they would have both a constitutional right to secede as well as a natural right of revolution.
But Lincoln insisted that he had not violated any such right. He had not suppressed, and had no intention to suppress, any provisions in the Bill of Rights. Nor, he emphasized, did he have any intention to interfere with slavery in the southern states. Slavery had clearly been permitted there, as part of the founders’ original bargain, and Lincoln swore that, putting his personal feelings about slavery aside, he would uphold that bargain. This is critically important because it means that, on an issue absolutely central to his own convictions and to the 1860 election, Lincoln accepted the southerners’ contention that to limit or abolish slavery in the South would be to steal their property. Lincoln repeatedly disclaimed any intention on the part of his government to do this.
On the other hand, Lincoln pointed out that the Constitution was silent on the matter of whether Congress could exclude slavery from the new federal territories. In his debates with Stephen Douglas, Lincoln pointed out that this was not a matter of abolishing slavery or taking away anyone’s property; rather, it was a matter of preventing slavery from being instituted in the first place. Consequently, Lincoln argued, the open question of whether to permit slavery in the territories was an issue to be decided politically, which is to say, by majority rule. For the South to secede over this was to deny that democratic majorities freely elected can enact their will in their legitimate sphere of governance. In making this—in my view irrefutable—argument, Lincoln demonstrated his keen understanding of the proper scope of democratic rule. Lincoln was completely on board with the founders’ anti-theft system.
Lincoln realized, however, that the founders did not limit government power merely to prevent tyranny and theft. They also did so to enable wealth creation as an alternative to theft. Lincoln did not use the term “wealth creation.” What he said, rather, was that America is a country where “every man can make himself.”15 For Lincoln, making oneself meant what we would call “making it,” improving one’s condition in life. In other words, Lincoln was talking about wealth creation.
Yet in earlier eras the idea of wealth creation would have been considered strange, even incomprehensible. Wealth, after all, was believed to consist mainly in land. Obviously the supply of land is limited. Once the available land has been occupied, there is no more. If you get more, that means that someone else has gotten less. This is the very definition of a zero-sum society.
Such societies have existed for millennia. Typically they have been run by caste hierarchies, with aristocrats, priests, and warriors at the top and merchants and craftsmen at or near the bottom. Good examples are the Indian caste system and the feudal hierarchies of Europe. In these hierarchical, zero-sum societies, those at the top of the totem pole generally exploit and steal from those at the bottom, even while reviling them as wicked, lazy, and inferior. Merchants and traders, in particular, have been reviled in just about every culture since the time of the Babylonians.
The American founders, however, got rid of the hierarchical totem pole. In its place they created a new type of society in which government would play a small role and entrepreneurs and workers would play a big role. Such a society would be based on property rights, contracts, and trade. The main business of America would be business. America would become a technological, capitalist society energized by new inventions and their regular applications on the part of entrepreneurs and workers to improve the lot of consumers.
In an 1859 lecture, Lincoln singled out the only right specified in the original Constitution, before the Bill of Rights was added later. This is the right to patents and copyrights. The job of government would be appropriately limited. It would be to merely secure the legal right of inventors to enjoy, for a limited time, the exclusive benefit of their inventions. Lincoln marveled at this; he argued that in protecting the rights of inventors and innovators, America had “added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.”16 Lincoln stood squarely on the side of the wealth creators.
America’s system of wealth creation and theft prevention has proven immensely successful. By 1890, Americans had the highest standard of living in the world. And by the mid-twentieth century, America was by far the wealthiest nation on the planet. For the past sixty years, we have been living in the American Era, in which Americans have enjoyed wealth and influence utterly out of proportion to America’s size or population. Many countries around the world are copying our wealth-creating, anti-theft formula. And America’s system continues to be cherished by productive citizens because it encourages their creativity and labor, and protects the fruits of those efforts from being stolen.
But an anti-theft society is especially unpopular with one group. That group is called thieves. Thieves don’t particularly care about wealth creation; they are entirely into wealth confiscation. Thieves would like to see an ongoing transfer from the wealth creators to themselves. In fact, this is their very definition of progress. Consequently the constitutional design that has been the distinctive hallmark of America, and a big reason for America’s enviable prosperity, is under fierce attack from a powerful syndicate of thieves, the so-called progressives, who, in their boundless sneakiness, attempt to identify thievery with progress. Let us now investigate their nefarious schemes.