A short reflection on the unintended political consequences of the right of due process

Some days ago, The Economist published an article about the spread of the morality councils in the villages of China, whose members meet to praise the ones who they regard as well-behaved and humiliate the others who don’t. The publication used its characteristic sense of irony by pointing out that, finally, the highest ranks of the villagers found a way to exercise their “right to speak”.

Nevertheless, the said irony might lead us to a different kind of reflection on the political right to speak and the rights of due process, such as public hearings, an impartial tribunal, and an opportunity to be heard. Public hearings and impartiality are interrelated since it would be much harder for a tribunal to deliver an arbitrary adjudication if it is overseen by the society. But the public watch of the trials and the right to be heard are even more interrelated. Through these devices, the whole civil society wields the power to take notice of both the claims of the prosecution and of the ones of the prosecuted individuals, and, thus, form its judgment about the impartiality of the tribunal.

Moreover, public hearings endow the prosecuted individuals with the opportunity to exert their political right to speak without any restraint. In a political context of heavy or increasing authoritarianism, any procedures -even the one of a morality council- could resound with the voice of the contrarian. Thus, the right of due process could have -although unintended- political consequences.

Daron Acemoglu and James A. Robinson relate a poor justice system with the causes of why nations fail, exemplified by government exerting their interference over the judiciary power. Thus, extractive political institutions encroach upon the economic institutions, turning them extractive as well. Nevertheless, defending the procedural rights of the due process could work as a way to contribute to restore both inclusive political and economic institutions.

Of course, a tight authoritarian regime, such as China’s, is aware of the political consequences of free speech, even in the realm of a judiciary process. However, this insight could be profited by the countries where democracies are feeble but still exist. Promoting oral and public judiciary procedures, even for the most insignificant matters, and the right of the prosecuted individual to be heard is not just an issue of lawyers, but acquire a political dimension. The rights of due process endow the civil society with powerful tools to get familiar with main strands of the Rule of Law and the dissidents with the opportunity to exercise their own right to speak.

The immunities of the due process have a long history of discovery and extension to all human beings, beginning with the Magna Carta Libertarum of 1215, that is not fulfilled to this day. It should be something to be pondered that they are historically previous to Modern democracy. Surely, they are a logical condition as well.

Nightcap

  1. Fastballs, Curveballs, and the Market Process — RIP Jerry Ellig Peter Boettke, Coordination Problem
  2. Hedge fund humbugs Chris Dillow, Stumbling & Mumbling
  3. Libertarian terrorists? Ron Paul, RPWC
  4. On blaming the British Empire David Crane, Spectator

And the Surfers Shall Lead the Revolution

The central coast of California where I live has been cursed and blessed by sunny weather this winter; it has also been blessed and cursed by unusually high waves. The curse of good weather when it should be raining, known as “drought,” is that it may feed into more horrendous forest fires next summer, same as we had last summer. The blessings of sunny weather are obvious. The curse of very high waves is that they cause some damage to infrastructure and that they sometimes claim lives. The blessing of high waves is that surfing is thriving like never before in “Surf City,” Santa Cruz, my town.

On a Wednesday or Thursday afternoon of January, the beach two miles from my house is crowded like in June (not quite as much as in August). It’s largely covered with family clusters. Look at it in context. Children are not allowed to go to school (although they are almost completely immune); many moms who would otherwise work have been laid off from their more or less precarious jobs. Many dads have been laid off too; others “work from home.”

The kids are restless, the sun is shining, the temperature is better than OK; the beach is within the reach of many. (More on this later.) What are we going to do? Let’s spend the middle of the day at the beach, of course.

I should have have been able to predict it because I am a serious beach social scientist. I missed the boat. Santa Cruz was one of the best small towns I knew only seven or eight years ago. Then, the homeless started drifting in and they never left. Some are in the last stages of a life dedication to drugs; others are rationality challenged; a few are both. For the past five years or so, there have been enough of them to affect the quality of life for everyone else. Their presence determines to an extent where one can take one’s children in town. (Sorry, I call them as I see them; no judgment involved.)

Then, the COVID fell upon us from China. In short order, the authorities, including the local powers, found their authoritarian footing, or they got in touch with their own panic. And panic is often a handmaiden to petty authoritarianism. They began prohibiting this, and that, and that public behavior, this and that kind of work, etc.

Santa Cruz is becoming a ghost town, one restaurant closing at a time, one store closing at a time. The movie theaters are shut down, the biggest one forever. The one large bookstore does remain open though. You can still pick up and return books at the public library but either you can’t browse or it’s fiendishly complicated to do so on-line. Besides, one can only read so many hours a day if one is under fifty, so many minutes if under fifteen.

Just from looking around, I assume that many school-age children have taken the opportunities on-line learning offers to become even more adept at using the internet. Such skills come handy in times of extreme idleness. I believe a good many kids are on TikTok and similar on-line alternate worlds six or seven hours a day, some amassing “followers.” (Don’t ask me why I believe this, it’s very personal; I just know.) But although such games are addictive, they too become tiresome and children crave direct social contact anyway. So, eventually, many kids end up at the beach with their parents and with their siblings and their parents or, with adult neighbors and their children.

In point of fact, many of the family clusters on the sand are further grouped into larger ensembles including some ten or fifteen adults and thirty or forty children. I haven’t yet figured out whether they are grouped on the basis of school, church, or just neighborhood. Whatever the case, it’s pretty impressive. No one is wearing a mask.

On weekends, visitors from far afield join those mostly local people on the beach, increasing again the crowding. There are several ways to spot the visitors. Some play loud music- a sure activator of xenophobia; others send their kids to the water with a life jacket on top of their wetsuits. (Not cool.) Some wear masks.

Speaking of wetsuits, a new thing, something I have never seen before, is that dozens of little kids are in wetsuits. This is a rare sight because in normal times, parents tell themselves: Not worth buying the kid a wetsuit; he is going to outgrow it in months.

The calculation has changed because of a virus. The parents are largely unable to spend money on dining out, other shopping opportunities are limited and inconvenient; for the well-heeled, this year, there has been no winter vacation to spend on; for the least well endowed, there are not even school supplies expenditures. I am saying that under current circumstances, unlike in previous years, almost any parents feel that they can afford to buy one or two children’s wetsuits (at about $125 or less each). This changes everything.

More importantly, perhaps, but I won’t dwell on this because I can’t afford to lose half of humanity as potential friends, for the first time in my experience, you see dozens of mature women in wetsuits. I have to be cautious here because, let’s say that the wetsuit as a garment is not all that flattering to the mature female shape.

The beach I have in mind is a few hundred yards around a point from globally famous Steamer Lane where world surf championships are held most winters. The waning rollers of Steamer Lane land on that beach and they are suitable, the farthest ones for intermediate surfers, and the closest, for beginners. So, almost every family cluster on the beach includes one, two, or three surfers.

Learning a new sport is often wonderful; learning it as a family is terrific. Coming out of the water cold but exhilarated and sharing a sandwich with your kids and with your spouse is like a return to a lovely, simpler past most people today have only heard of, if that.

Downbeach some way, three tiny girls in tiny bikinis chase one another in the small waves. Their squeals gladden the heart. A couple of boys nearby are on the wet sand absorbed by a hydrokinetic project. They ignore the girls as is proper. A smart white egret has figured out that humans are not predators. It picks sand crabs right between the feet of children. At least some creatures are enjoying a new freedom and that’s all good (except for the sand crabs).

Surfing, loosely defined, plus the new pleasant, voluntary family closeness around it, has become the first recourse but also the last recourse of many of the locked-down. It must be pretty much irreplaceable for them under the current circumstances of health-based restrictions, and health pretext-based restrictions on ordinary activities, circumstances of forced idleness and, of unnatural family interaction in a closed space. Surfing is the thin pillar around which some people are building a small, fragile edifice of freedom and joy.

If the local health authorities try – as they did last spring – to restrict parking near the beach, I believe all hell will break loose. (And, I am being polite, I was thinking of fans, not fanatics, air circulation devices.) That’s true, although Santa Cruz is largely a “progressive” town. Every material obstacle to parking is one less family group able to have recourse to the last recourse. The real surfers among them, advanced or not, are tough people. They immerse themselves voluntarily for hours in cold water. (Wetsuits don’t protect faces and hands, and the rest of the body, only imperfectly). They deliberately submit themselves, and often their children, to the dangers of breaking surf. And, I don’t even mention sharks, known to frequent the area because we have many sea lions. (The last fatal shark attack was about 18 months ago, a long time ago or yesterday, depending.)

At any rate, the surfers won’t go meekly. They are not likely to submit to orders to stay away from waves that are extremely unlikely transmitters of viruses. If the authorities even attempt to take away this last vestige of personal freedom, the surfers will proclaim and lead a sort of revolution. Also, if I were the authorities, I would think twice before turning draconian because many law enforcement people (and firefighters) are surfers themselves so, the expected instruments of repression would be somewhat unreliable. And no one, but no one hates surfers except other surfers. So, don’t go seeking allies in repression.

Local tyrants – however well meaning you are – don’t even think about it! You don’t want to face the full anger of barefoot families in wetsuits who have been enduring for a year a bunch of largely ineffectual, ill-explained, and often idiotic regulations.

Nightcap

  1. Modern war in the age of identity politics Annie Jacobsen, Wired
  2. Most thoughtful piece on the Trump presidency (so far) Arnold Kling, askblog
  3. Perfect capitalism, imperfect human beings (pdf) Quinn Slobodian, CEH
  4. The ongoing struggle for our liberties Samuel Goldman, Law & Liberty

Nightcap

  1. Don’t overreact to the Capitol riot Conor Friedersdorf, Atlantic
  2. We don’t need new laws to fight the far Right Branko Marcetic, Jacobin
  3. Longitudinal, generational privilege from the comments, EconLog
  4. You have to suffer Vanessa Bee, Guernica

Nightcap

  1. Lost and found at Guantanamo Bay Jasmine El-Gamal, Newlines
  2. Washington DC and the Proud Boys Ian Ward, Politico
  3. Should libertarians continue to be non-interventionists? Doug Bandow, antiwar.com
  4. The data of long-lived institutions Alexander Rose, Long Now

Nightcap

  1. Orwellian Othering Bryan Caplan, EconLog
  2. Cancel With Them Irfan Khawaja, Policy of Truth
  3. The rise of extreme politics in a federation VOXEU
  4. Conquests, atrocities, and non-Europeans Lipton Matthews, Mises Wire

Nightcap

  1. How the anti-communist alliances of the Cold War have ended David Goodhart, Literary Review
  2. The end of interest (and capitalism) John Quiggin, Crooked Timber
  3. The democratic road to socialism Chris Dillow, Stumbling & Mumbling
  4. Masks, pollution, and implied consent Johnathan Pearce, Samizdata

Nightcap

  1. Ron Paul on the creation of the Department of Homeland Security (2002)
  2. The chilling effect of an attack on a scholar Conor Friedersdorf, Atlantic
  3. The childhood, schooldays, and death of Jesus Siddhartha Deb, Nation
  4. Andrew Sullivan is going back to the blog New York‘s “Intelligencer”

Nightcap

  1. The problem of policing and local public economics Peter Boettke, Coordination Problem
  2. The deep roots—and new offshoots—of ‘Abolish the Police’ (no libertarians mentioned) Ruairí Arrieta-Kenna, Politico
  3. Where are the libertarians on police brutality? JD Tuccille, Reason
  4. Intersectionality and classical liberalism Jacob Levy, Cato Unbound

Be Our Guest (Sunday Poetry): “Food & Drinks to Rats & Finks”

Our latest Be Our Guest post comes from poet N.D.Y. Romanfort, and it’s another poem. Once again I’m taking liberties in regards to Alex’sSunday Poetry” series and sharing Romanfort’s poem today. An excerpt:

Two-legg’d rodents have seized
the cherished eateries.
For these rats of great size
Mere food scraps aren’t the prize.

Please, read the rest. Enjoy. And if you’ve got something to say and no place to say it, Be Our Guest.

Wats On My Mind: Polling NOL readers about COVID-19

538 has some interesting new polling data. While the vast majority of respondents in the US agreed that social distancing et al is the right thing to do right now, there is a large and rapidly growing split between Democrats and Republicans on the future, and whether the worst is over or not. Their story fits what’s going on on my Facebook feed certainly. But I was curious what Notes on Liberty readers think (wherever in the world you happen to be living). Which of the following best describes your outlook in your country? Please choose only one:

a) There will be a 2nd or even 3rd wave during 2020 that will be far worse than we have had so far. Total deaths in my country will more than triple from where they are today. The highest number of new deaths in a single day is in the future. (For the US, that’s more than 255k deaths total and more than 4000 dead in a single day; for the UK and Italy, that’s more than 100k dead; and so forth)

b) There will be a 2nd or even 3rd wave during 2020 that will be worse than we have had so far. Total deaths in my country will double from where they are today. (For the US, that’s more than 170k deaths total and a return to 2000-3000 dead per day in on average; for the UK and Italy, that’s more than 65k dead; and so forth)

c) Right now is the worst it will be. Total deaths will increase from where they are today, but at a decreasing rate.

d) We have already survived the worst of the infections and death (For the US, total deaths will be less than 170k and average dead per day will not increase above 2000 again; and so forth).

And let me ask you a second polling question about civil liberties that have been constrained during the quarantine in most countries. Which of the following describe(s) your outlook? Feel free to answer more than one:

e) The restriction of my civil liberties will be temporary (less than 6 months).

f) The restriction of my civil liberties will be long lasting, but eventually I’ll get them back (6 months – 3 years)

g) The restriction of my civil liberties will be nearly permanent (3+ years)

h) The restriction of my civil liberties was a deliberate power grab by the state

i) The restrictions on civil liberties successfully prevented many more deaths in the last few months and in the future

j) The restrictions on civil liberties successfully prevented many more deaths in the last few months, but not many in the long run

k) The restrictions on civil liberties may have prevented some deaths in the last few months, but not many in the long run

Be Our Guest (Sunday Poetry): “The Tyrant’s Burden”

Our latest Be Our Guest post comes from poet N.D.Y. Romanfort, and it’s great. So great, in fact, that I’m taking liberties in regards to Alex’s “Sunday Poetry” series and sharing Romanfort’s poem today. An excerpt:

Shoulder the Tyrant’s Burden-
Yield to “expert” decree-
3 Lettered Health Institutes
Control mind and body-
Free thinking doctors? They’re called
Medical Heretics-
Big Tech will silence their noise,
Thus, public thought is fixed.

Please, read the rest. And if you’ve got something to say and no place to say it, Be Our Guest.

An update from Texas

I am still working from home. The weather has been spectacular here over the past few days. I immediately head outside with the kids at 5 o’clock. We just run around and play. The younger one likes throwing the football around in the grass. The older one likes to play with the ants in the cracks of the sidewalk.

I was looking forward to going to Oslo this fall, but I just received news that the event has been postponed. I’ve still got the inaugural family camping trip to Ouachita to plan, so that’s exciting.

The political landscape here is much different than it is on the west coast or in Austin. Authority is decentralized. There are more black and Mexican people here, and fewer other minorities (including Central Americans). I have more black friends now than I ever did in California. It’s odd. In some ways, the non-South is now more racist than the old South. I can’t put my finger on it but I swear it’s true. You can carry on a friendly conversation with anybody here, something that’s missing out west and up north.

My guess is that this has something to do with the fact that segregation was blatantly racist in the South during the Cold War, and Washington felt it had to do something about it in order to win friends (despots) abroad. The racism in the north and the west was less blatant, and as a result nothing has ever been done about it.

I mean, I didn’t grow up with any black people. Or Mexicans. There are tons of them in California, but they don’t live in white residential areas. Down south, at least in the parts of Texas I’ve lived in, this is not the case. There are still “sides” of town, but at least we all share the same town. There’s still racism here, but the racism is more honest than, say, the zoning found up north and out west. This familiarity between blacks, Mexicans, and whites is something you as an individual have to work hard on to achieve in the non-South.

The federal government forcibly dismantled Jim Crow. It did so only after it conveniently ignored the 14th Amendment for decades, but at least it finally did so. There’s a place for Washington down here in Texas. Decentralized tyrannies are still tyrannies. I just started watching Waco, the Netflix series. It’s good. Washington is responsible for the deaths of several innocent women and children. It’ll never pay the price. Those people were just too strange for the broad public to really give a shit.

It’s a never-ending balancing act: finding a comfortable equilibrium between federal, state, and local governance. The feds are better at protecting the descendants of slaves than the state and local governments. But the state and local governments are better at protecting non-conformists and religious extremists than the federal government.

Libertarianism hasn’t been able to shake its racist stigma yet. Sure, leftists call us racists all the time, but a kernal of truth is still a kernal of truth. I have witnessed several people I once respected sweep libertarianism’s ugly, recent past under the rug and then turn to grab their paycheck. Libertarian Inc. has its place in our society, but it won’t be effective so long as the racist label sticks with us. And the racist label won’t come off until we grapple with the brutal truth of what we’ve become comfortable with and what we will tolerate.

Nightcap

  1. Nobody knows anything (Singapore and South Korea) Scott Sumner, Money Illusion
  2. The cholera riots and the coronavirus revolts, compared Jesse Walker, Reason
  3. Climate, disease, and the end of the Roman Empire Jaspreet Singh Boparai, Quillette
  4. On trying to solve the paradox of memory Emina Melonic, Modern Age