Monday, June 27, 2005

The Nature of Property…

…is inexorably linked to man’s ontology. Moreover, it could be argued that an inherent right to property is integral to the human condition. This is self-evident, as far as this particular minarchist libertarian is concerned. Inasmuch as property bespeaks ownership, it encompasses the other facets of Freedom, which are Life and Liberty. Such concepts have been a matter of public debate in recent days, as Kelo decidedly undermines basic individual rights. Once again, the much maligned SCOTUS ‘ruled’ on a case that centered on Property Rights:
WASHINGTON (Reuters) - A unanimous U.S. Supreme Court ruled on Monday that Internet file-trading networks can be held liable when their users copy music, movies and other protected works without permission.


"We hold that one who distributes a device with the object of promoting its use to infringe copyright liable for the resulting acts of infringement by third parties," Justice David Souter wrote for the court.
David Post of The Volokh Conspiracy points to the heart of the violation at issue:
The full court says: even if you meet the Sony standard (i.e., even if you have "substantial noninfringing uses"), you can still be liable for inducing copyright infringement, if there's evidence that you actively encouraged or promoted infringing conduct. And there is such evidence in this case.
To me, this appears to be an obvious repudiation of naked theft. The fact that the stolen property happens to be ‘intellectual’ in nature, matters not at all. To be sure, much of property is ‘physical’, but as I say, ‘ownership’ is the underlying factor. Furthermore, the copyright is a time-honored protection for various ideas that have the potential to create wealth for the person or entity that created or conceived said property. It seems rather cut-and-dried to me, but Tom Knapp sees it differently:
Apparently the importance of property rights depends on just whose rights we're talking about -- your real ones, or the imagined ones of governments and corporations.
While I share Knapp’s disgust at the Kelo decision, I certainly don’t concur that intellectual property rights are “imagined”. I do agree, however, that governments and corporations don’t have rights, as they are merely abstract entities, but their individual constituents do. In any event, the Grokster decision emphatically, with unanimity, declared that theft is intolerable, even when it is only “encouraged” by “third parties”. The real tragedy is that SCOTUS failed to employ such reasoning with respect to the use of eminent domain.

The aforementioned inconsistency of the High Court prompted Knapp to cite it as a justification (no doubt one of many) for anarchy.
Okay, fine. Screw the Supreme Court and the horse it rode in on. If the state is not bound by the "social contract," then neither are we. The contract is null and void for reason of non-performance by one party of the terms of said contract. The deal is off. The union subsisting, etc., etc., is hereby dissolved. If the nine doddering imbeciles who style themselves the "final arbiters" (yes, Robert, I am speaking to your conception) want my rights, I have but one answer for them: Molon labe, if you can.

Henceforth, the only flag I recognize is the black banner upon which nothing is written.
Whether or not the Constitution is “null and void for reason of non-performance by one party of the terms of said contract” is certainly debatable…perhaps another time.

What I will address is Knapp’s mischaracterization of my “conception” of a “final arbiter”. Contrary to his assertion that the “nine doddering imbeciles” are they to which I was referring, I wrote the following in a previous post:
…Therefore, a minimal government comprised of citizens, that serves as a neutral arbiter and the Rule of law, to which all are fairly and equally bound, strikes a palatable balance between liberty and security…with individual liberty taking precedence.
It is true that nine Justices have the final word with regard to specific laws that are in dispute and are argued before them. Theirs is to interpret the law, rather than create it, whereas the Congress and the Executive do the opposite. All three branches are (theoretically, I’ll grant) constrained by the Constitution, which articulates a Rule of Law that was designed with individual liberty in mind. So, my idea of final arbitration is considerably more complex than an ‘omnipotent’ Judiciary, but at the same time, it’s as simple as a plainly worded, unambiguous and irreducibly minimal set of societal boundaries; the issue of compliance being altogether distinct from the merits of the concept of limited government.

Update: Jury Nullification is yet another safeguard for Liberty in the face of an overbearing state, as our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]."
Jurors sometimes use nullification to send messages to prosecutors about misplaced enforcement priorities or what they see as harassing or abusive prosecutions. Jury nullification prevents our criminal justice system from becoming too rigid--it provides some play in the joints for justice, if jurors use their power wisely.
Hat Tip: jomama