Can There Be a Level Playing Field When the State Is Involved?

Sunni's picture

I expect that many freedom-loving individuals would answer that question in the negative; but some would aver otherwise, pointing to the power of a jury as a (perhaps “the”) remaining check on the state’s dominance. I’ve pondered that issue for some time—wanting to be convinced by the arguments, truth be told, but never making it that far. The primary obstacle is the vanishingly small role juries directly play in most people’s lives. How many adults are tapped for jury duty? Out of those who go, how many actually serve? How many times does an average person sit on a jury? I have no numbers to pin to those questions, but it should be clear that I am skeptical that an activity that at best probably commands only a few hours of a person’s life is going to be seen as enormously important to him.

Another assertion that would likely be offered is that juries can make or break laws—and that does affect many people, as we all live under the burden of the laws of our jurisdiction. But again, I have problems ... Jury nullification depends upon at least one informed, courageous person; and the voir dire process actively seeks to eliminate such individuals from juries. That person must also keep his intentions secret until deliberations, else a mistrial could be called. Even that doesn’t guarantee that a mistrial won’t happen.

But—and here’s the heart of the matter—all the jury power in the world won’t make a bit of difference if the judge plays fast and loose with his power in the courtroom. A judge has a variety of means by which he can skew a trial, including what he allows as evidence, lines of questioning the lawyers are allowed to pursue, and the instructions he gives to the jury before they retire for deliberation.

Some judges have apparently become so brazen that they will not allow the jury access to the actual law(s) under consideration in a case. Pete Hendrickson says that’s what happened to him in his recently-concluded trial with the IRS.

The details of his trial’s conclusion are sobering. In addition to the usual shenanigans, the judge is quoted as stating in court that he wouldn’t allow jurors to see the actual statutes under consideration because seeing the law “might cause them speculate as to its meaning”. Silly us, in the freedom tribe: we thought that is part of the jury’s responsibilities.

Later in his update, Pete offers a story as metaphor for his situation (emphasis his):

There is an old story that I’m sure you all know, about a group of mice being preyed on by a cat. One day, one of the mice has the bright idea of hanging a bell around the cat’s neck, so that the mice will all hear it coming, and thus avoid being consumed. Everyone agrees that the plan is brilliant, but then comes the question, “Who will be the one to put the bell on the cat (and surely die trying)?” Faced with that, no one acts, and the mice go on as abject victims of the hungry cat.

However, there IS a solution to that conundrum: If all the fellows of the mouse doing the belling act together in his support, the cat can be overwhelmed and the job can be done.

I like to be inspired as much as any optimist, but I’m sorry to say that I think the analogy is a little off this time. It seems to me it’d be more appropriate if the “cat” were a tiger. That’s not to say that mice cannot bring down a tiger: but clearly, it would take many more mice, much harder work, and likely, some mistake or flaw in the tiger itself for it to fall. And despite a growing awareness amongst Americans that the state is not as beneficent as they’d been encouraged to think, the IRS—as well as a few other agencies, such as Homeland Security and TSA—provoke such thoroughgoing dread that few are willing to even consider trying to tackle such tigers.

It’s a very hard choice for a freedom-loving person to consider. Oh, sure, being an income tax outlaw may seem to be a fairly straightforward step, but to actually accomplish it such that the IRS doesn’t chase one takes a lot of time and energy. If one wants to live any semblance of a typical life, it almost always means having to rely upon someone else, who’s in the system and will put property and vehicles in his name for the outlaw, or will handle banking transcations for him ... you get the picture. Pauper or dependent upon someone else willing to play Good Citizen—those are the choices as I see them. And either course does not guarantee that the IRS won’t come calling someday—what a sword of Damocles that is. And how is it freeing to be dependent upon another person’s ongoing good will?

Perhaps I’m wrong; perhaps our society is closer to critical mass than I realize, and it’s a sense of that imminent inflection point that has me uncertain and somewhat cynical. Perhaps I’m feeling a little guilty after reading Pete’s update, in which he assures his readers that he will appeal the verdict ... I’ve been wondering if my own course has been worthwhile, and whether I should keep at it. Being a mouse trying to dance between the tiger’s paws is very fatiguing; and I question if that’s a wise use of my energy.

All this should not be taken to mean that I don’t support Peter: I do, and I admire his unwavering conviction. I just wish I had more of it these days. But the field, rules, and referees all seem hopelessly, heavily tilted.

There has been some

There has been some speculation in another of my freedom groups that there is a way to stop at least one judge and gum up one trial. I don't know if it has actually been tried, and in my mind it is as risky as possible. Realistically it probably wouldn't do anything except delay matters a bit.

Accuse the judge of high treason against the Constitution.

Now I'm not a lawyer, but supposedly that is the one crime that must be heard and settled before a judge can rule again. The specifics of the treason case would insure that the power of jury nullification would not be swept under the rug.

I sure as blazes wouldn't do it unless it were the absolute last chance. At best I can't see it being anything other than a sacrificial gambit.

Interesting gambit.

It certainly would be good to hear a lawyer’s take on that idea. My guess is, given Bushnev’s famous utterance, such a tactic would merely demonstrate how far into Newspeak and Newthought this country has fallen.

Am I wrong in this, or have a few judges not allowed Constitutional references in their courts? (I mean to say, letting a defendant argue that at the least, elements of the case against him violate the Constitution.)

What's a Jury?

Those are thought-provoking reflections, Sunni. During my historical researches a few years ago, I recall reading that in Anglo-Saxon times a jury consisted of the witnesses to a crime. Who better to judge the matter (and thereby make the law) than those who saw what happened? Over the centuries, law in England was taken over by the King's courts and juries were subsumed under governmental power. Although we Americans got rid of the King, we did not get rid of the underlying system. The impotence of the modern jury is part and parcel of the centralization of law (or, these days, legislation and mere edicts -- I consider law and rights to be natural). As our friend Chris Sciabarra would say, our problems are deeply systemic and interconnected. We can't expect the now-feeble institution of the jury to save us. Unfortunately, I don't know what can save us...

Worth saving?

Your comments, along with Mama Liberty’s below, are quite illuminating for this historical naïf. Thank you.

And ... I truly don’t think it’s just the Discordian in me talking, but looking around, I often wonder: what is worth saving in America these days? My answer invariably is “not much”. It appears that, like it or not, more decay must happen before something better (and I like the frithstead idea more and more) can arise.

Many approaches

Dancing between the tiger's toes (I love the imagery) is one, but as you say, it is tiring. The Picket Line shows that some types of tax resistance can be fairly safe (at least so far). Wendy and I advocate different variants of "get out while you still can."

Peter seems to have "the law says..." POV. While I admire his courage, I think his approach is naive at best. He, and others who take that position, do not understand that the rule of law is a myth. It is an especially dangerous myth when one acts against the interests of "the tiger". I wish him well, but see very little hope at this point.

With regard to critical mass for a change, I am really unclear. Some days I think that it may be possible. Others I view it as hopeless. And then there is the question of the kind of change we will get. It could be a clamoring for a "strong leader" instead of for freedom.

Naïve, or a tactical choice?

Happy to have provided you a smile with the imagery, my friend.

The Picket Line shows that some types of tax resistance can be fairly safe (at least so far).

I suppose that depends upon one’s perspective of what’s safe. As I recall, the IRS not too long ago seized one of David’s bank accounts in trying to settle up what they claim he owes.

Regarding Pete’s naïveté, while I understand your point, I see it a bit differently (and I should point out that he is not an anarchist). His perspective acknowledges that it’s the state’s ball, field, rules, and referees, and says, “Okay, in this framework, what does the law actually require of people?” And the answer he found is, “Not as much as many have been led to believe”—which is precisely why the judge hid the statutes and stipulated definitions of certain words that are contrary to the relevant statutes.

At a more meta level, I agree with you; but that isn’t the level Pete works from on this matter. Perhaps this case—especially if he loses his appeal—will change that.

P.S. In part to provide more background on Pete, and because I forgot to link it earlier, I’ve added a link to my Salon interview with him in the text of my blog post.

Depends on interpretation

Specifically on who is doing the interpretation. Peter's reading is reasonable, but it fails to recognize that the law is actually whatever a judge says it is. In cases where the judge's livelyhood (taxation) is at stake it is very unlikely that he/she will interpret the law the same way Peter will. A judge will not issue a ruling that will cut off their income stream.

In fact, these days it seems to be increasingly unlikely that the judiciary will rule in a way that is at odds with the executive. It is possible, but unlikely. When the power to tax is at issue, it is extremely unlikely.

The "law"

I had just been reading this before I saw your post. Lots of very interesting ideas here.

Classical Liberalism versus

by Jesus Huerta de Soto

The legal system is the evolutionary manifestation of the general legal principles (especially regarding ownership) compatible with human nature. Therefore, the state does not determine the law (democratically or otherwise). Instead, the law is contained in human nature, though it is discovered and consolidated in an evolutionary manner, in terms of precedent and, mainly, doctrine.

(We view the Roman, continental legal tradition, with its more abstract and doctrinal nature, as far superior to the Anglo-Saxon system of common law, which originates from disproportionate state support for legal rulings or judgments. These judgments, through binding case law, introduce into the legal system all sorts of dysfunctions that spring from the specific and prevailing circumstances and interests in each case.) Law is evolutionary and rests on custom, and hence, it precedes and is independent of the state, and it does not require, for its definition and discovery, any agency with a monopoly on coercion.
"Given human nature, once the state exists, it is impossible to limit its power."

Not only is the state unnecessary to define the law; it is also unnecessary to enforce and defend it. This should be especially obvious these days, when the use — even, paradoxically, by many government agencies — of private security companies has become quite common.

Common Law

(We view the Roman, continental legal tradition, with its more abstract and doctrinal nature, as far superior to the Anglo-Saxon system of common law, which originates from disproportionate state support for legal rulings or judgments. These judgments, through binding case law, introduce into the legal system all sorts of dysfunctions that spring from the specific and prevailing circumstances and interests in each case.)

If the continental legal tradition is so great, how is it that the greatest freedom in modern societies occurred in the Anglosphere, not in France or Germany or Spain or other continental locations?

Mr. Jesus Huerta de Soto is conflating the original, customary, pre-state common law with the modern, governmental, state-dominated legal system that grew on top of it (grew on top of it like a mold or a fungus, I'd say). They are two very different things. If I had more time I'd find a slew of references about it, but I'm out of time for the moment (if I recall correctly, John Hasnas has a good essay on the topic).

This one?

You may be referring to The Myth of the Rule of Law, to which Jorge linked in his comment above.

Nope, This One

The one I'm thinking of is Hayek, the Common Law, and Fluid Drive. His essay Toward a Theory of Empirical Natural Rights is also excellent. The guy is a font of wisdom!


What Hasnas describes in "Toward A Theory of Empirical Natural Rights" seems to arrive at how we obtain our concept of law and order, not "natural rights" themselves. We may learn (or decide) how to associate with one another through empirical actions, but we shouldn't consider empirical evidence as helping to _establish_ "rights", but merely _recognizing_ them. The perception of "natural rights" begins earlier.

In Sunni's interview with Peter Hendrickson, Hendrickson made a statement which resonated with me: "... I was born half-libertarian - fully appreciative of the importance of my own liberty."

I think kids understand this from birth, but only become aware that it IS freedom when unfairness and injustice start to take it away: when urged to give a treasured possession to a kid in need, or having to apologize for hitting someone who hit them first.

"The importance of my own liberty" entails being one's self, owning one's possessions, and doing what one wishes without obstruction from others. I think "natural rights" originates from that awareness of being a separate entity, not from learning how to treat each other. It may seem to walk a fine line at times, but there is a difference.

Pat (aka Pagan)