THE TWO FACES OF LIBERTARIANISM
and
THE LEGAL INSANITY OF LEGAL INSANITY
by Kirk Brothers
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INTRODUCTION
These two brief articles were written as comments on what
many readers might consider minor matters, because they deal, not
with obvious major and undisputed threats to basic rights of all
Americans, but only as comment on what I perceive to be a serious
internal problem of the Libertarian Party. Specifically, I refer
to Libertarian political philosophy--or the lack of same.
Various newsgroups provide forums for the expression of
numerous--and therefore conflicting--political opinions. Such
intellectual disputes are both inevitable and correct.
It has been my observation, however, that many articles by
writers who appear hostile to Libertarianism fail to recognize
that so-called Libertarians are by no means homogeneous in their
persuasions--and thus in their actions.
As a result of our disparate philosophies, it is my belief
that we Libertarians fail to recognize a serious "credibility
gap" between ourselves and our critics--and it is my hope in
these few short pages to define the reasons for this gap, in the
hope that defining the problem accurately may be half of the
solution.
THE LIBERTARIAN DILEMMA
In some of my earlier articles I alluded to Libertarian
ideology, without attampting to assign any specific parameters.
Translation: I was vague and imprecise.
Problem: so are all other Libertarians I've ever met.
If we can't agree on anything except the right to disagree
with other Libertarians, how can we hope to find a viable slate
of candidates, and mount a credible campaign that addresses
crucial issues in inspiring terms? Let's not forget that Ross
Perot rolled over the Libertarian candidates for President in
1992 and 1996. Why? Well, one reason might be that in 1992, as
I recall, the candidate for President advocated eliminating the
deficit and balancing the budget by a national lottery.
I for one found such a platform embarrassingly simplistic--
based on short-term, superficial expediencies, and lacking in any
long-range vision to instill enough confidence to win even my
vote. And as a rule I've found that Libertarians speak very
eloquently on what they're AGAINST, like death and taxes--taxes
more than death--but have no eloquence when asked what they're
FOR, except freedom. And there's the rub.
LIBERTARIANISM AND FREEDOM
In THE REVOLUTIONARY RIGHT I mentioned briefly that we, as
Libertarians, hold that the right to be let alone, free from
governmental meddling, is the most important right of all, as it
implies all others. It is, in essence, the right to do what one
wishes, EXCEPT INJURE SOMEONE ELSE.
I noted that no freedom is absolute, and now add the central
presumption: ASSUMING that one chooses to remain a part of any
society. I submit as self-evident that every freedom is like a
coin with two faces: a RIGHT as the "heads", and a concomitant
RESPONSIBILITY as the "tails". A right, with no responsibility
to exercise it properly, is inconceivable to a TRUE Libertarian.
A second point to introduce here: all Libertarians appear to
be "free enterprise" oriented--but many seem to advocate unbri-
dled freedom as a panacea for our economic and social problems.
Well, here I begin to respectfully but emphatically disagree.
The key word is "unbridled", which implies ABSOLUTE freedom
to make a profit, with no moral obligations whatsoever. Thus I
submit that these "Libertarians" create a bad image--i.e., that
our movement is dedicated merely to making money, and has no
philosophical basis other than the profit motive. I submit that
we must temper our economic Libertarianism with a degree of
social responsibility.
Let me give you an example. Mr. Jay Hanson has filed two
scholarly articles on alt.politics.economics on the subjects, THE
FATAL FREEDOM and KNOW THYSELF. To quickly summarize the theme
to which Mr. Hanson devotes in-depth treatment, he cites Hobbes
and Locke, among others, for their writings on the concept of
"the Commons"--that is, the gifts of nature which are common
property IN EQUAL SHARES to each and every member of any social
group.
These Commons are to be protected from abuse by any member
of a society to preclude their exhaustion by damaging exploita-
tion. Destruction of the Commons, in fact, is an injury to the
common rights of all other persons. In a nutshell, we're talking
about conservation--a/k/a environmental protection--to preserve
as best we can the quality of life for ourselves and our poster-
ity.
The oldest book in the world refers to the preservation of
the Commons as a basic part of the "social contract". The book
is from China, and is called I CHING (pronounced roughly "yee
jing"), which is the basis of Taoism (pronounced roughly
"dowism"), Confucianism, and plays some role in Zen Buddhism.
The title means, "The Book of Changes", and the book consists of
64 symbolic six-line figures called hexagrams, each one bearing a
symbolic title, and given a spiritual meaning which was origi-
nally in poetic form.
Number 48 is called "The Well," and refers to the tradition-
al well--central to every town in ancient China--which was the
source of water essential to sustain the quality of life for
EVERYONE. The theme of the relevant poem is to PRESERVE THE
WELL--the town might change, but the well must remain the same.
Forgive me for interpolating a very crude and even vulgar inter-
pretation--but I can think of no "polite" version that would make
the point as well. One meaning of this hexagram might be quite
coarsely rendered: "if you're going to live in the town, don't
shit in the well."
Back from Chinese philosophy to modern-day Libertarianism!
To many so-called Libertarians, the idea of environmental pro-
tection is high on their "hit" list. Get the government off our
backs, say they--let people do what they want. I submit that
these so-called Libertarians are nothing more than short-sighted
opportunists, who see a chance to make a buck by exhausting
irreplaceable natural resources as one of their primary rights.
I say they are wrong.
Here's one reason why. A couple of years ago a narrow dirt
road near my home was widened and paved. In order to widen it to
let a few cars drive a little faster and easier, crews cut down a
fairly large tree because its spreading roots lay where the all-
important concrete had to be poured.
It took nature about 100 years to grow that tree, and it
took those men with power saws about 100 minutes to destroy it
forever.
Do I feel sentimental about a tree? Not in the sense of the
familiar poem. But consider for a moment the similar destruction
of the Amazon rain forest--or the arguments to cut down most of
the Sequoias in California to make money on their lumber.
There are, essentially, two rights in conflict in the
dispute: the right of "free enterprise" touted as all-important
by so-called Libertarians, and the right of future generations to
be born into a sane and healthy environment, as we were early in
this century.
True Libertarians must be willing to accept the "tails" of
responsibility of providing for our posterity over the "heads" of
a quick profit on the coin of commercialism. I say a coin with
two "heads" for freedom is counterfeit.
THE SOCIAL CONTRACT
Thomas Paine, previously cited numerous times, wrote that
society is always a blessing, and not to be confused with govern-
ment, which is essentially a police force--coercion, for short.
At that time I added that SOME government--as little as pos-
sible--is NECESSARY to protect the rights of the majority in any
society, who act in good faith, from INJURY by the selfish few to
whom "good faith" is an oxymoron.
Many so-called Libertarians will disagree vehemently with my
viewpoint, because I talk about moral obligations. Such persons
have no sense of moral obligations that I can discover. To them,
conscience--as Mencken wrote--is just the voice inside that tells
them someone might be watching.
In short, they want a license to steal--and they attempt to
justify their selfishness by saying they're Libertarians.
CONCLUSIONS
I submit that Libertarians must examine their own thinking
very carefully and decide if they are willing to accept the ideal
of social responsibility or not.
If no, I suggest they get out of the Libertarian Party, or
that true Libertarians unite to issue a Manifesto on a philosophy
that addresses (a) the necessity of accepting a responsibility
with every right; (b) the necessity of protecting the rights of
unborn Americans to as healthy an environment as our generation
inherited; and (c) the necessity of protecting those innocent and
unfortunate persons who are unable to protect themselves from the
rapacious greed and amorality of sociopaths who seek to live by
the law of the jungle.
If the Libertarian Party cannot concoct a platform of basic
ethical principles that go beyond mere freedom, the party should
be prepared to close up shop.
* * * * * * * * * * * * * * * * * * * *
THE LEGAL INSANITY OF LEGAL INSANITY
* * * * * * * * * * * * * * * * * * * *
INTRODUCTION
It is my opinion that there are numerous problems to which I
submit that we Libertarians must give a great deal of serious
thought, with a view of developing a meaningful philosophy for
our party. I have written before that too many Libertarians have
a reputation of ignoring social and ethical considerations in the
pursuit of a laissez-faire marketplace.
While laissez-faire is well and good, it cannot solve many
problems which plague our country (and the world)--and if we fail
to offer voters positive solutions within a Libertarian framework
we cannot hope to ever become a viable political force.
My series as a whole will deal with a variety of legal and
political problems which "the system" adamantly refuses to change
--apparently merely because shysters are in favor of shysterism--
which I define as legal hair-splitting for the sake of splitting
hairs, and to hell with practical considerations.
One of these problems is the cracks in our criminal justice
system--two in particular being the defense of insanity (and thus
disposition of cases involving mentally-defective parties), and
the granting of parole and/or medical release to career criminals
and (in common terms) "crazy" killers--which I submit demands
total overhaul. In order to bring about such an overhaul--and
make it binding, I submit that we must make changes in a number
of outdated laws and legal rules, and to force such changes might
require a Constitutional amendment.
Please note, especially in these minor articles, that I
write as a JOURNALIST presenting facts from journalistic sources,
in a style immediately understood by laymen, for the purpose of
stimulating serious thought on subjects of public interest. It
is my hope that readers with scholarly credentials will be
sufficiently interested in this rough presentation to address the
same problem in more learned style for academic study by research
students in the applicable professions.
THE NEED FOR REFORM
Pick up your favorite newspaper just about any day of the
week and you'll probably see a story like one of these:
A woman in Maine is charged with murdering her young
children because "God told her to do it." She is obviously
delusional.
Is this a tragedy? It's only half of it.
The real tragedy is that she also killed her (then) children
some years before--for the same reason--was found not guilty by
reason of insanity--was "treated" in a mental hospital until she
was "cured" and sent home to her husband--had a new crop of
babies, and then killed them as she had the first. The case
created a sensation about 30 years ago as I recall, but the
subject matter, and the problem, is timeless.
A similar case just a year or two ago from South Carolina
will be remembered. A young mother strapped her two sleeping
infant sons in their car seats, let the car roll into a lake, and
told police the car had been stolen and the boys kidnapped by two
black men. Her arrest led to a series of heartbreaking stories--
the culmination of which she was first found guilty of murder,
and then found by the same jury to be delusional, and therefore
spared the death penalty.
A fairly recent horror from Chicago. Two mentally retarded
blacks in their early teens with reported IQs of 80 and 68 were
convicted of murdering a younger black by dropping him headfirst
from a high-rise window--the victim's older brother looking on--
because the younger boy refused to steal for his two murderers.
The killers were so young they could be sentenced to imprisonment
only until they are 21 years old--when by law they must be freed,
having had a few years in an adult prison, where they learn how
to commit other atrocities.
Another recent ghastly tale from the upper midwest, from
which the families of the victims can never recover emotionally.
Two young white males and their black girlfriend conspired to
murder a woman nine months pregnant and cut her open to deliver
her fetus--because the girlfriend wanted a baby. It was reported
that, in court for her arraignment, she asked, "Why I am I here?"
A recent case in Florida, involving a man who some years ago
raped a teenage girl in California, cut off her forearms and left
her in a ditch to die. She did not die, but was horribly
mutilated for life. Her rapist was given a lenient sentence,
then granted parole after a few years--returned to his home in
Florida where he attempted suicide a few times--and was a year or
so ago convicted of murdering a woman whose body was found in his
home. The Florida jury was wise enough to recommend the death
penalty, and he is now on Death Row awaiting proper justice.
Add to this list the names of serial killers such as Wayne
Gacey and Jeffrey Dahmer, and others less notorious but just as
willfully--if not satanically--evil. When one reads of such out-
rages, the first reaction of most citizens is, "What the hell are
the Courts doing? Why don't they just take those bastards out
and kill them?"
While Libertarians are in the forefront of those who demand
due process for all criminal defendants, we should also feel that
the VICTIM of a heinous crime must not lose his right to justice
--retribution, in a word--simply because he may be dead. In some
cases, the victim might not be dead, but have absolutely NO LEGAL
PROTECTION. Here's a grim case to illustrate the point--it's
another Florida case still unresolved.
A young white couple of grossly unfit parents were arrested
about a year ago for torturing their year-old son. The boy was
returned to his parents by an idiotic (or perhaps legally
hog-tied) judge after the parents were "counseled" or some other
damfool excuse. A month ago the two-year-old boy was back in the
hospital with even more brutal parental torture to be repaired.
Medical evidence showed that, among other things, he had
been punched in the stomach by his father--a strong working
man--which might easily have been fatal if over the heart. A
patch of hair, about the size of a half-dollar, had been pulled
out by the roots. That's enough to prove the point.
Obviously the boy was without standing or maturity to
explain anything to a judge. What will happen? Will the boy be
returned to his lousy, unfit parents AGAIN?
Doesn't society care?
Libertarians should.
I submit that we need children's ombudsmen in each and every
such case, with a statutory mandate to represent the child
against his abusive parents. An ombudsman was originally a
Swedish legal official whose job was to investigate and act on
complaints against public officials by citizens without legal
standing to do so themselves. I submit that a judge who holds
the rights of obviously unfit and abusive parents superior to the
rights of an obviously abused child must be instantly challenged
in a higher court. I further submit that such parents should be
legally sterilized and debarred from any future custody of their
abused children.
Anyone who respects the rights of victims must feel justifi-
able fury at the way our sluggish legal system handles cases
involving defendants who are, to use common language and common
sense, either crazy or simply monsters--such as mentally unfit
parents, or the two cretins who dropped a young boy out a window
for being honest. In plain talk, such people are no damn good.
WHAT IS INSANITY?
In sensational criminal cases, juries may be forced to
juggle medical and legal reasoning in compliance with laws and
rules pertaining to insanity as a defense. They are called upon
to decide what is quite impossible to know with certainty--what
was going on in the head of the defendant at the time the crime
was committed. It's an old saying that if you consult ten
experts you can get twelve opinions--and if psychiatric experts
cannot agree on such a crucial fact, how can laymen be expected
to be Solomons?
I apologize for beginning with basics with which most
readers may already be familiar--but I write for laymen with
little or no prior study or experience in the fields of law
and/or psychology, so bear with me if the basics are obvious to
you.
Insanity is not the same thing as "being crazy".
Is this insane? Almost--it's shysterism at work. Here's
the gist of the apparent contradiction.
THE NEED FOR UNIFORM CRIMINAL LAWS
There is, from any logical or moral viewpoint, only one
simple and easily-understood legal standard for behavior--willful
injury of another person is a criminal offense. But we do not
have a single, logical legal code--we have fifty-one. Each state
has its own code defining crimes within its jurisdiction, and the
federal government has a few--relatively speaking--criminal
statutes separate from state laws. For years the American Bar
Association (ABA) has tried to win acceptance of its Uniform
Criminal Code, under which all crimes would be defined and
punished exactly the same in each and every state in the nation.
Why not? If the United States is one nation, how can anyone
justify fifty-one sets of laws which often conflict with each
other? A uniform criminal code is an idea whose time has come--
again and again--and been rejected by "the system". Why?
Perhaps simply because lawyers have a field day under the present
clumsy arrangement, and it serves their interest not to simplify
anything.
Then, too, we always run into the sophists who argue
"states' rights". I submit as self-evident that such special
pleading is all too often a "cover-up" for states' wrongs.
How does this affect cases involving insanity as a defense?
WHAT'S THE VERDICT?
In an ordinary criminal trial, a jury must choose between
two verdicts: guilty (meaning proved beyond reasonable doubt by
the evidence presented), or not guilty (meaning there is at least
a reasonable doubt that the prosecution has proved its case).
Under the old laws of Scotland, a jury had a choice of three
verdicts: guilty, not guilty, or not proved. I submit that this
was a very sensible law, because "not guilty" should, by logic,
mean that the defendant is EXONERATED. A verdict of not guilty,
by logic, means that the prosecution was IN ERROR.
But a verdict of "not proved" meant only that the defendant
could not be found guilty on the evidence because the prosecu-
tion's case was weak. It was NOT an exoneration--it implied the
possibility of guilt, which was clearly prejudicial in any future
trials of the same defendant--which might be the reason the old
law was changed under the Common Law of England.
Now let's look at the normal dichotomy of guilty/not guilty
in cases in which insanity is the defense.
Juries in some states have traditionally had a choice of
three verdicts:
Guilty (on the evidence, beyond reasonable doubt);
Not guilty (on the evidence--exoneration);
Not guilty by reason of insanity (meaning the defendant did,
in fact, commit the crime, but was not LEGALLY RESPONSIBLE FOR
HIS ACTIONS AT THE TIME).
In Media, Pennsylvania, quite recently, the heir to the
DuPont fortune was found insane when he killed a man who was in
athletic training on the DuPont estate. He will be confined to a
mental hospital until "cured", and then eligible for release.
So insanity has a narrow and specific legal meaning: that a
party in a case is not competent to understand right or wrong, or
(in civil cases) to handle his own legal affairs. Any person
found incompetent is usually "crazy" as well, but the concept of
"being crazy" is, essentially, an ILLNESS which the medical
profession--most unwisely--is authorized to determine. This is
unwise because the records show a dismal success rate in so-
called "cures", and many if not most psychiatric patients relapse
into their prior mental illness, sooner or later.
VARIATIONS IN HANDLING INSANITY CASES
In states where a jury must consider a verdict of NOT GUILTY
BY REASON OF INSANITY, such a finding amounts to exoneration--the
defense of insanity in those states, if successful, is an abso-
lute defense.
I submit that such verdicts are, unfortunately for justice,
an absolute denial of any protection for society as a whole
against true schizophrenics who are released from mental hospi-
tals, only to repeat their insane actions with a new victim. A
single such case is one case too many--but in my lifetime there
have been dozens, if not scores, of repeated criminal acts by
insane persons who had been supposedly "cured".
In some states the question of insanity is determined
first--it will be recalled that Jeffrey Dahmer was found compe-
tent to stand trial for murder (though Wisconsin does not impose
the death penalty, so a finding of sanity could not aggravate his
sentence. In some states (as in the South Carolina case) the
question of insanity is determined after a guilty verdict as a
mitigating circumstance which precludes the death penalty.
But the discrepancies between state laws, and consequently
between court rulings under those conflicting laws, create a
situation which is simply unacceptable to any sane person. Thus
I submit the following proposals for thoughtful consideration.
WHAT SHOULD BE DONE
First, the long-proposed Uniform Criminal Code of the ABA
should be adopted nationwide--by Federal statute if possible,
since Federal statutes supercede state laws if Federal and state
laws conflict. This legal principle is inherent in the Four-
teenth Amendment, but it is often ignored by many Courts in
keeping with the abuse of discretion exposed in Chapter Two of
THE REVOLUTIONARY RIGHT.
Second, in cases in which insanity is a criminal defense,
the jury should be given three options instead of two:
Guilty (on the evidence, beyond reasonable doubt);
Not guilty (on the evidence or lack of same--exoneration);
Guilty but insane (in a single jury decision, not two).
Third, any defendant found guilty but insane should be
deemed by Federal statute to be CRIMINALLY INSANE FOR LIFE, and
never be eligible for release. The facts show that "cures" of
mental illness are, at best, mistakes in the vast majority of
cases--perhaps because the doctors want to make themselves "look
good" by "curing" patients. It is time that medical doctors be
permanently debarred from their current position of substitute
jailers and parole officers--neither of which responsibities is
part of their expertise or temperament.
Fourth, criminally insane persons should be confined to a
special cellblock in a prison where they would be treated like
any other prisoners--with the exception of special precautions
and some therapy where feasible.
Fifth, insanity should be defined precisely--by statute
rather than by judicial opinions--either as being incapable of
understanding right and wrong, or being mentally defective and
thus incapable of assuming responsibility for his/her actions.
Thus, the retarded youths with IQs of 80 and 68 should be deemed
criminally insane for life, due to genetically-defective inhtel-
ligence. The prospect of their release at any time in the future
is a grim reminder of the defects in our criminal justice system.