Do We Need Laws to Force Us to Wear Masks?

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Ever since the number of COVID-19 cases began to grow in the United States the debate over whether to mandate wearing masks in public has raged on. Frequently devolving into a debate over political ideology rather than a discourse based on hard science. Naturally, those who believe mask-wearing to be an effective precaution against spreading the virus favor compulsory laws enforcing this practice in public. However, could it be possible that people still opt to take precautionary measures even in the absence of fine or other penalties? Better yet, couldn’t owners of private institutions such as stores, restaurants, and entertainment venues implement their preventive measures as conditions of patronizing their establishment? After all, the incentives are present to want to avoid any unnecessary risks and to keep their customers healthy to ensure a steady stream of business in these uncertain times.

In the state of Arizona, the issue of mask-wearing mandates has been left up to the local governments.  Most municipalities have opted to require masks while occupying indoor venues at the risk of facing a hefty fine. Back in June the city of Phoenix purposed a $250.00 for individuals repeatedly refusing to wear a mask. The suburb of Chandler, Arizona imposes a fine of $100.00 or 30 days in jail for mask-related infractions. Residents and visitors in the towns and cities located in Pinal County are not subject to mask requirements but are strongly encouraged to wear masks. One would assume that in these communities that are immune from such restrictions that the image of bare-faced shoppers must be a ubiquitous scene in the local grocery store. Such an assumption would be incorrect.

Even in the absence of formal constraints, most stores require that all customers wear masks. Generally, posting a sign on the front door forewarning prospective patrons of this precondition. Not only are the stores and eateries of the communities of towns such as Maricopa, Casa Grande, and so on filled with mask-wearing customers, but many establishments are taking measures not required by any municipality in the state. Employees are constantly cleaning. The local grocery store has never looked more pristine. Frankly, many of these changes in the cleaning and sanitizing schedules of the local business are long overdue. These shrewd business owners are proactively responding to the potential concerns of their clients. Anticipating that customers may avoid doing business if masks are at their brick-and-mortar location they have elected to require masks. In addition to urging patrons to wear masks, they also are making concentrated efforts to increase sanitation efforts. Even placing markers indicating the presence of six-foot gaps to maintain social distancing. The smell of bleach and other disinfectant products fill the entryway of the grocery stores. The local Walmart is even wiping down and sanitizing the carts! A sight that few would have ever predicted a year ago. All these preventive steps are taken without any laws, penalties, or ordinances. Completely implemented through apolitical channels.  

This micro-level self-governance on the part of local business propitiators and franchisees demonstrates the power of profit and loss mechanisms. Due to the business owners having a stake in the company they own and operate it is in their best interest to put the customers first. If the customers are comfortable, happy, and healthy it will be mutually beneficial for both parties. The customer will continue to obtain the goods and services they need and want. Simultaneously, the stores and restaurants will continue to receive business which will keep them afloat. Establishments that are insensitive to the needs of their customers will invariably see a dip in sales. This would hold even if we were not amid a pandemic. The entrepreneur must adapt to the present climate. That may mean investing in more cleaning supplies and sanctioning mask-wearing requirements for their establishment. Business proprietors who do not respond to customer concerns about the virus will be effectively punished by market forces. Through a sullied reputation, lackluster sales, and even insolvency. While constrained by federal, state, and local laws business owners by their possession of the enterprise still retain an immense amount of authority to create the rules governing their store. Having the ability to formulate the policies that govern the direction of the business enables them to better serve their customers. Displaying how to profit loss mechanisms can direct precautionary measures even in the absence of laws.

Business proprietors responding to these market pressures is an example of polycentric decision-making.  A system where multiple “decision-making units” with some degree of independent action subscribing to the same set of rules. Filtering the development of safety measures through the government attempts to use a one-size-fits-all approach to the pandemic. Whereas, individual shop owners can tailor their precautions to the specific concerns of their regular customers. Versus obtusely applying rules that may not even be effective or pertinent to how COVID-19 is impacting the region. Direct customer input about the absurdity of funneling customer traffic through two entries instead of three, can be an example of ground-level adjustments that can be made through business owner governed safety procedures when compared to those that are government-sanctioned. Avoiding the red tape and lethargic process of passing legislation or town ordinances provides fluidity that is necessary in dynamic times. A fluidity that is lost in the typical overarching and top-down approaches that are generally favored in regulations.  

Those cynical of the arguments that favor market pressure over formal regulation underestimates the power of the invisible hand. In jurisdictions where there are no regulations in forcing mask-wearing store owners not only require masks but are going the extra mile to ensure sanitary conditions for their customers. Most skeptical of the market being able to push such strives towards private solutions to the COVID-19 outbreak tend to cite avarice on the part of business owners. Without formal regulations, most will skimp on investing in extra precautionary measures due to the additional cost of enacting such changes. The willingness to make such changes is what separates a prudent businessperson from a fool.  The long-run profits from investing more in meeting alleviating the concerns of your customers will quickly outpace the minor cost.  Making a refusal to independently adjust to these changes shortsighted.

Is Fractional Reserve Banking Ethical Part II: Contract Theory and the Naysayers

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See Part I: Click.

Introduction to Part II:

The key arguments against fractional reserve banking being a moral system came from a 1998 paper co-authored by Austrian economists Hans Hermann Hoppe, Jorg Guido Hulsmann, and Walter Block. The white paper entitled Against Fiduciary Media was a response to a previous paper written by George Selgin and Lawrence H. White. Hoppe at al. crafted a repudiation against  Selgin and White’s 1996 paper In Defense of Fiduciary Media or, We are Not Devo(lutionists), We are Misesians. In which both scholars provide a normative and positive defense of fractional reserve banking. Even utilizing Murray Rothbard’s Title-transfer Theory of Contract to defend the practice. However, this application of the Rothbardian contract theory did not sit well with Hoppe and the company. All being devoted and unwavering followers of Rothbard believed that Selgin and White’s interpretation of Title-Transfer Theory of Contract to be incorrect. Making their justification of fractional reserve banking on grounds of contract theory to be inherently flawed. It is worth noting that Hoppe was a direct protégé of Murray Rothbard and even owed his career and position teaching at the University of Nevada, Las Vegas to the late Austrian economist.

Rothbard’s  Title-Transfer Theory of Contract:

Before claims that Selgin and White did not faithfully adhere to or misinterpreted Title-Transfer theory, it is important to thoroughly explain this concept. A reader without a firm comprehension of this idea cannot adequately determine if free-banking proponents of fractional reserve banking suffer from profound confusion. The proceeding section will provide a brief overview of this theory. Hereby providing the reader with the requisite background information to justly assess this debate.  

Before diving into Rothbard’s theory, it is important to note his ideological disposition.  Murray Rothbard was the modern father of an ideological subset of libertarianism known as anarcho-capitalism. Rothbard and his followers hold that there should not be limited government, but rather no government. All services and products can be produced by private industry with no necessity for government intervention. This even includes services that have been traditionally provided by the government. This includes defense/security services, law enforcement services, charity, resource management, infrastructure, private legal adjudication, and so on. Rothbardians even go so far as to assert that the government possesses a monopoly on such services. It is imperative to understand this aspect of Rothbard’s political economy and political philosophy. It illustrates the fundamental philosophical precepts that govern his theory of contract.

Rothbardian Contract Theory is expounded upon in his 1982 book The Ethics of Liberty. Rothbard derides that the concept that all contracts in a just society need to be enforced( P.133). He draws a sharp line of delineation between “promised” and “conditional” contingencies in matters of exchange. Per his logic, the utilization of legal channels to enforce a promise is wholly illegitimate. Constitutes the use of government force in a situation in which no property has been transferred. Making it equivalent to state enforcement of morality (p.133-134). The reason why the property needs to be involved for a contract to be valid pertains to the distinction between what is intrinsically alienable and inalienable to the individual. This has to do with the fact that a person cannot alienate their own will or relinquish control of their mind and body to someone else. Humans can quite easily dispense with tangible property, including money (p.135). Due to the fact enforcing a promise is a compulsion because it interferes with the free will of the individual. It is not technically a breach of contract. On the other hand, if the agreement included a transfer of property for non-compliance then it would be another story.

In instances of conditional contracts and agreements, noncompliance is equal to a form of theft.  One salient example Rothbard provides is the circumstances of service providers receiving advanced payment but never providing the service (p.137). For example, if I were to offer to paint your house and I received an advanced payment of $300.00 and never show up your house that is theft. One contractual contingency that can shift a promise to a conditional agreement would be a performance bond clause within the agreement.  For Rothbard’s example, if a movie theater has a meet and greet event with a famous actor, they can put into the agreement a clause where the actor agrees to pay the theater a sum of money for abdicating this obligation (p.137). Since a property can be transferred and not the will of the actor this is an ethically binding agreement. However, failing to fulfill a property-related obligation is not always necessarily deemed as implicit theft. In instances where a creditor provides immunity to a debtor who cannot pay their bill this is legitimate (P.144). Why?  The creditor reserves the right to forgive debts due to the fact they are the ones who transferred their property under the condition of repayment. Please note that this scenario details circumstances in which the credit lent out their funds.

It should be noted that a Rothbardian conception of contractual property rights does not preclude someone from selling off a portion of their property. For example, if I own 100 acres of land in Montana. It is well within my rights to transfer you 5 acres for $20,000.00. Concurrently, retaining my claim on the residual 95 acres of land. This does not mean that mean I in any way still own those 5 acres. Through the sale of this land, I have effectively transferred ownership to you. In turn, I have relinquished by entitlement to the lands sold.

Page 146:

“Another important point: in our title-transfer model, a person should be able to sell not only the full title of ownership to the property but also part of that property, retaining the rest for himself or others to whom he grants or sells that part of the title. Titles, as we have seen above, common-law copyright is justified as the author or publisher selling all rights to his property except the right to resell it.”

How The Free-Banking Argument For Fractional Reserve Banking Violates Contract Theory:

Selgin and White claiming that fractional reserve banking is consistent with Title-Transfer Theory suffer from some blind spots. Blind spots that are fully magnified by Hoppe et al. One of the fundamental chinks in the armor of the Free-Banking argument is that fractional reserve banking inherently violates Title-Transfer Theory. It assumes that two people can own the same piece of property simultaneously (p.21). By the very nature of how fractional reserve banking engages in lending, it creates ambiguity regarding ownership. Through issuing more promissory notes both the bank and the customer assume ownership of the same banknote, which is fraudulent by nature (p.22).  Creating more claims to money against the present supply of money will not create more money (p.22). Rather, will only serve to redistribute the present supply of actual currency from client to client without increasing the amount of money in the vaults (p.22). Effectively creating fiduciary media (money-substitutes issued by a bank that is not backed by gold or paper money) out of thin air without transferring assets or liabilities (p.22). As detailed in Rothbard’s theory, we can sell off a portion of our property. However, we relinquish our own once we transfer it to the party purchasing it.

This illusory arrangement also conflates property with property titles (p.23). Treating and categorizing banknotes( fiduciary media, money claims) as money (physical property). This only enables this fallacy to continue. Keeping in tune with the Austrian tradition the Regression Theorem states that all money had a prior use value (p.34-36). For instance, tobacco and nails at various times in human history have been used as money. Meaning that these banknotes cannot be money in the actual sense, but a claim or title to money. Through this categorical fallacy, the banks can divorce titles from ownership resulting in the redistributive practices of fractional reserve lending (p.23). Even going so far as to promising future entitlement to goods against present goods that may or may not be fulfilled. It would be honest to label these claims to future goods or debt claims, but not a claim to money (p.24).

An inquisitive observer may question why it is dishonest or even outright fraud to categorize future claims to money as money titles or even as money? Hoppe et al. frame this from the standpoint of we cannot claim or transfer ownership from a title to a car for anything but a car and the same applies to money (p.25). If we were using more precise language what banks and customers have truly agreed to is debate claims versus money titles. Per the authors of  Against Fiduciary Media Selgin and White adopted a hyper-subjective interpretation of contracts to side-step this discrepancy (p.26). The misrepresentation engaged in by practitioners of fractional reserve banking extends beyond labels of goods, but to actual quantities as well. By treating fiduciary media as money, it creates the false perception that clients own more than what they truly due on paper. The fabricated money quantities do not reflect the amounts present in the vaults of the bank (p.27). Free-banking proponents may believe that fractional reserve banking isn’t so much the problem, rather government intervention. As long as the withdrawal requests are fulfilled it cannot be tantamount to fraud. However, even without state interference, the transfer practices of fractional reserve banking blur the lines of definitive ownership (p.29). Making the system incompatible with upholding property rights or just contract enforcement.

Is Fractional Reserve Banking Ethical- Part I- An Introduction

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Introduction:

The norms of modern banking are something that most of us take for granted. Few ever question the inner mechanics of such transactions we engage in daily. However, banking has been steeped in a fog of mystery due to complex operations and seldomly failing to fulfill any obligated services. Beyond questioning the functions or internal workings of modern banking even fewer people recognize that most people are participating in a fractional reserve banking system. In a random survey of average people, you will be hard-pressed to find anyone aware of what fractional reserve banking entails nor any intimate understanding of its implications. That is to be excepted considering this is a niche area of expertise that is truly the domain of an economist, banking/ financial specialist. This assumption relieves us of any responsibility to cultivate a better understanding of these systems. After all, this is best left to the experts. How do we know whether there any inherent risks associated with fraction reserve banking? Do we just assume that due to the fact it is the most common banking system that it is the most effective and secure? Better yet, is it even a moral system of banking, or is deceptive by design and tantamount to fraud?

Over the past several decades, a controversy has been brewing among monetary economists concerning fractional reserve banking, Modern economic theorists of the Austrian School who are generally hard money advocates, find fractional reserve banking to illegitimate to its core. Equating it fraud and perceiving it to be antithetical to a free market in money. Whereas free-banking (an economic school that is arguably an outgrowth of the Austrian School) do not see fractional reserve bank as immoral. Rather, such institutions could not only ethically co-exist with 100 % reserve banks but also flourish. Any ethically questionable operations were the byproduct of government intervention and mutually exclusive from the banking practice (p.8). While their Austrian counterparts insist that the practice not only supports the monetary objectives of the state but owes its existence to the state (p.9, p.15-17).In this series of essays, we will examine the ethical arguments for and against fractional reserve banking. To present an unbiased account of the controversy.

What is Fractional Reserve Banking?

Before we can embark upon discussing the ethics of fractional reserve banking is important that we define what it is. On a high level, fractional reserve banking is a system in which banks are required to only hold a fraction of money deposited as reserves. This is done to enable banks to make loans. The recipient of the loan receives a transfer of deposited money upfront which they are expected to pay interest on. The bank customer who deposited the money that was lent out theoretically will receive the money-back in their account with sustained interest. This is done to expand the economy through “freeing capital for lending”. This is done without the depositor relinquishing their claim to this money. Effectively creating more money titles than physical money held on reserve at the bank (p.3)  The foundation of this banking system is fastened to the assumption that most customers with savings accounts will not simultaneously withdraw all of their savings at once. Otherwise, this could lead to what is known as a bank run. A phenomenon where the bank as completely depletes their liquid reserves. Since they are only mandated to hold a relatively small portion of reserves on hand.

Reserve requirements typically hovering around 10 % (presumably applicable to central banks).  Most reserve requirements are contingent on the bank’s size. Banks holding less than $15.2 Million in reserves are exempt from maintaining reserve minimums. The requirement of 10% reserves is applicable to banks holding over $100.2 million in deposits. Per the Garn-St Germain Act  banks are free from any reserve requirements for their first $2 million held. This legislation was initially passed by the Regan administration as a means of relieving pressure on banks as the federal reserve significantly increased interest rates. Banking institutions that hold excess reserves or amounts of deposited money above reserve requirements are entitled to interest payments. Under the Financial Services Regulatory Relief Act of 2006, these interest payments are allocated by the Federal Reserve.

As mentioned above fractional reserve banks issue more money titles than currency on hand. Through this process, they engage in form of indirect “money” creation. The loan itself treats the money titles as being equally as valid as actual currency notes. When the loan is issued the bank “credits” the borrower’s account with an amount equal to the loan, mimicking a transfer of physical cash. The methodology of money creation on the part of fractional-reserve banks has been distilled down to a science. Guided by the money multiplier principle. This concept broadly describes how “.. initial deposit leads to a greater final increase in the total money supply”.  More specifically how much commercial bank money ( demand deposits that can be utilized for credit and debit purposes, basically your residual after reserve requirements) using a defined unit of central bank money. Central bank money is any medium of exchange that these institutions acknowledge as being money. The correct proportion of “money” creation is determined by the below equation:

m=1/R

M=  Money Multiplier, R= Reserve Requirement

Pueblo Lands

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Just a fun fact regarding the Pueblo tribe that originally resided in the U.S. Southwest. This tidbit of information is specific to the Pueblos domiciled in New Mexico. The “… lands were acquired under fee under Spanish rule…”. Once the territory of New Mexico was annexed by the United States under the Treaty of Guadalupe Hidalgo (1848) in the aftermath of the Mexican War (p.272). This transferred right to the lands to the tribe versus the United States government holding the legal title.

Unfortunately, the technical aspects of the land own by New Mexican Pueblos are now minimal. As the tribe is presently in a trust relationship with the U.S. Government. See United States V. Sandoval (1913) (p.273). The tribe cannot “alienate their lands without the consent of the United States per United States V. Candelaria (1926) (p.273). Water rights for Pueblo lands are as applied by Winters Rights and are not different ( New Mexico V. Aamodt) from those of any other tribe (p.273).

Side Note: 

I may not be a trained lawyer. However, I am a Classic Liberal. That means I hold individual rights and property ownership in high regard. After all, I am following in the tradition of John Locke, and so on. If we strip away all the social justice rhetoric surrounding the government’s treatment of the tribes, there are a lot of violations of natural property rights. This opinion may not be based on past case precedence, but rather on unified philosophical principles. By the Treaty of Guadalupe, the tribe has legally transferred the right to their lands. While subsequent legislation may subordinate the strength of this previous agreement, did the tribe ever consent to the trust relationship with the United State’s government? From a purely a priori combined with some of the rhetoric surrounding past and present tribal/U.S. relations it would be fair to surmise no.

The legitimacy of the present guardianship dynamic between the New Mexican Pueblo tribe and the United States is suspect at best. Effectively, this arrangement transfers Pueblo lands to the federal government for relocation to the tribe. Many who are not as privy to the philosophical implication of property rights may find this alteration to landownership to be inconsequential or even a mere technicality. Taking such a superficial stance on this issue undermines property rights. Rightfully attained property should not be transferred to another party including the government without consent. This issue somewhat mirrors the overextension of civil asset forfeiture in cases of narcotic sales or instances of eminent domain. There may be laws on the books that provided legal justification for such actions. However, it is morally or philosophically justifiable? Could these laws be legitimate due to the fact they are unjust? Depending on your disposition towards property rights the answer can be a resounding no. Through this tacit acceptance of law equating moral correctness, we accept many unjust laws as being legitimate. This in turn transforms the Bureau of Indian Affairs into an institution that is more of an imposition than a facilitator of tribal rights. Inverting property rights, thereby shifting it from a negative right to a positive right. The BIA had the potential to operate in a manner that served to legitimately uphold tribal property rights. Like more bureaucratic departments within the government, it managed to make a bad situation worse. Instead of taking on the role of a property rights arbitrator between Indians and non-Indians, it became a property rights dispensary. Creating a perverse dynamic in which there is an inference that the Pueblos no longer own the land. When it was historically transferred to them by treaty. If this is true then the government has no business managing the land at all. Unless their property rights are being infringed upon. For example, non-Indians encroaching upon their water rights. There is a profound categorical confusion in attempting to protect property rights by first violating them. Making it appear as if it more of the pretext for circumventing Native property rights than defending them.

How to Quantify Indian Water Entitlements: A Lesson From the Ak-Chin Tribe

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One controversy that continues to afflict Indian water rights is that the Winters Doctrine does not provide clear quantifiable limits of water usage entitled to Native tribes.  Typically, legally define water usage limitations by survey and legal recognition is an extremely costly route to take for the tribes (p.286).  The most economical route tends to be through negotiations, administrative action, or legislation (p.286). One such example of this was the Ak-Chin tribe located approximately an hour south of Phoenix, Arizona. Ultimately, resulting in the development of the Public Law 95-328 (1978).

This law was spurred by the drastic decrease in the water table for the Ak-Chin reservation. This being something a substantial blow to the community as at the time they were primarily an agricultural-based economy. It was found that this decline in the water table was the result of the federal government failing to “prevent the mining of groundwater”. Due to this abdication of duty on the part of the U.S. Government, it was held liable to build a spring well and delivery apparatus from federal lands to meet the required amount of water entitled to the tribe through Winters Rights. The law set in motion that an interim supply of water is provided by 1984. That a permanent supply is allocated by no later than 2003 (p.6). The provision of water would be supplied through the Central Arizona Project Aqueduct (p.6). This has resulted in the Ak-Chin tribe expanding their” irrigated agriculture by 10,000 acres” resulting in an improvement in economic conditions on the reservation by 1991 (p.13). Because of the 1978 act and 1984 amendment. By 1993, the tribe had next to no unemployment and no social services expenditures (p.3).

The 1984 amendment provided more than just the interim supply of water needed for cultivation purposes. $15 million was provided for purposes of obtaining usable water. $ 28.7 million was also transferred to the tribe for economic development. The date for the permanent supply of water shifted to 1988 (p. 7).  The amendment expanded water consumption entitlement to “75,000 and 85,000 acre-feet, depending on precipitation levels each year (p.8). This amendment was deemed controversial at the time because it reallocated unused water from the Gila River Project to tribe versus “other state appropriators ” (p.8).

Then came the 1992 amendment to the water activities for the Ak-Chin Tribe. This amendment allowed off-reservation leasing of the Ak-Chin water supply. Considering the ever-evolving nature of American Indian Law there was then the 2000 amendment. Designed to provide great clarity on leasing requirements for Ak-Chin water. Manifesting itself in S. 1913- Ak-Chin Water Use Amendment Act of 1999.

SEC. 2. TECHNICAL AMENDMENTS TO AK-CHIN WATER USE ACT OF 1984.

    (a) Short Title.–This section may be cited as the “Ak-Chin Water

Use Amendments Act of 1999”.

    (b) Authorization of Use of Water.–Section 2(j) of the Act of

October 19, 1984 (Public Law 98-530; 98 Stat. 2698) is amended to read

as follows:

    “(j)(1) The Ak-Chin Indian Community (hereafter in this subsection

referred to as the `Community’) shall have the right to devote the

permanent water supply provided for by this Act to any use, including

agricultural, municipal, industrial, commercial, mining, recreational,

or other beneficial use, in the areas initially designated as the

Pinal, Phoenix, and Tucson Active Management Areas pursuant to the

Arizona Groundwater Management Act of 1980, laws 1980, fourth special

session, chapter 1. The Community is authorized to lease or enter into

options to lease, to renew options to lease, to extend the initial

terms of leases for the same or a lesser term as the initial term of

the lease, to renew leases for the same or a lesser term as the initial

term of the lease, to exchange or temporarily dispose of water to which

it is entitled for the beneficial use in the areas initially designated

as the Pinal, Phoenix, and Tucson Active Management Areas pursuant to

the Arizona Groundwater Management Act of 1980, laws 1980, fourth

special session, chapter 1.

    “(2) Notwithstanding paragraph (1), the initial term of any lease

entered into under this subsection shall not exceed 100 years and the

Community may not permanently alienate any water right. In the event

the Community leases, enters into an option to lease, renews an option

to lease, extends a lease, renews a lease, or exchanges or temporarily

disposes of water, such action shall only be valid pursuant to a

contract that has been accepted and ratified by a resolution of the Ak-

Chin Indian Community Council and approved and executed by the

Secretary.”.

    (c) Approval of Lease and Amendment of Lease.–The option and lease

agreement among the Ak-Chin Indian Community, the United States, and

Del Webb Corporation, dated as of December 14, 1996, and the Amendment

Number One thereto among the Ak-Chin Indian Community, the United

States, and Del Webb Corporation, dated as of January 7, 1999, are

hereby ratified and approved. The Secretary of the Interior is hereby

authorized and directed to execute Amendment Number One, and the

restated agreement as provided for in Amendment Number One, not later

than 60 days after the date of the enactment of this Act.

                                

Indian Water Rights

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Depending on climate water can be as valuable as gold. Under certain conditions, it can be even more so valuable. Water is essential to life and crucial for regular consumption, bathing, irrigation of crops; it is truly the lifeblood of civilization.  If it was for the fertile banks of the Nile river or the rich and saturated soils of the fertile crescent (Tigris and Euphrates) rise of Egyptian and Mesopotamian empires would have never been possible. Water rights for Native Americans have in recent decades become a crucial touchpoint in the federal guardianship dynamics between the tribes and the U.S. government. While rights to water source appropriation generally fall under either riparian or appropriative conditions, how this is applied to Indian Tribes is slightly more complicated. A running motif that is common throughout American Indian Law. Despite the immense amount of complexity facing Indian water rights, considering it is a life-sustaining resource such matters must be sorted out.

Standard Water Rights For Non-Indians:

As mentioned above, water rights traditionally have fallen into one of two legally recognized categories. This includes riparian and appropriative rights to non-navigable bodies of water for consumption purposes. Riparian water rights tend to be applied in the “water abundant” regions of the United States. Particularly the Eastern seaboard of the United States.  Under riparian water rights, owning land or property that borders on a lake or a stream enables the right of the owner to “reasonable use” (p.277). The right to use is directly connected to land ownership. During times of drought the quotas for consumption among the entitled appropriators are reduced proportionately (p.227). Under the conditions of appropriative water rights, the entitlement to water utilization is not tied to ownership of surrounding lands. It is connected to whoever first can put the water to beneficial use. First come, first serve to harvest dynamic. This variety of water rights determination evolved in the western United States back when most of the land was federally owned. Mines were generally constructed far away from usable water sources meaning that transportation of potable water was costly (p.278). Resulting in the development of a first use policy to ascertain the primacy of water rights.  Meaning that “… water rights are not appurtenant to the land…” (P.278). Making precise dates of water appropriation extremely important. Older appropriators possess a greater deal of certainty in the right to utilize water from a specific source (p.278).

Law governing water rights tend to be formulated by the federal government and shaped by “local custom” (P. 279). Congress adapts legislation so that it conforms to the customs and historical practices of the region. This tends to be reflected in laws such as the Desert land  Entries Act (1877) and  43 U.S.C.A Sec. 321-25 (p.279). Appropriative have been applied to the non-navigable bodies of water in CA, OR, WA, NV, AZ, NM, ND, SD. While the framework for these laws has been formed in federal law it is generally governed by state law.  An example being California Oregon Power Co. V. Beaver Portland Cement (1935) (p. 279). How the states handle water rights varies dramatically state by state. Colorado is a 100 % appropriative system. California and Oregon are mixed systems.  The priority of use and “periods of non-use resulting in forfeiture…” of rights varies by states (p. 179).

Development of the  Winters Doctrine

The basis for tribal water rights evolved out of two cases which have resulted in the contextual rules that are now known as the Winters Doctrine. The first case that provided the foundation of this legal doctrine was Winters V. United States (1908). The Fort Belknap Reservation in Montana was created based upon an agreement. In the middle of the geographical territory of the reservation ran the Milk River.  When the land was set aside for the reservation nothing was detailed regarding water rights.  Then non-Indian settlers began building dams with was disrupting water usage on the reservation.  The Supreme Court ended up ruling that the water rights for the reservation were held by the 1888 agreement allotting to the tribe. Treating the right to water usage part and parcel with having the reservation established near a natural body of water (p. 280).

The second case further developing the scope and parameters of the Winters Doctrine came decades later in 1963. This came in the ruling of Arizona V. California (1963). The issue became the U.S. government attempted to establish water rights for tribes residing near the lower Colorado river by executive order. The court held that at the time of the establishment of these settlements water rights were established. Complaints among non-Indian settlers came about the quantity of water allotted to the natives. Citing a sparse Indian population in the “foreseeable future” (p.281). This was rejected on grounds by the SCOTUS that the reservation was “entitled to enough water to practicably irrigate every acre of the reservation” (p.281).

Conclusions of the Winters Doctrine (Winters Rights) (p.282)

“ 1.  Winters’ rights are creatures of federal law, which defines the extent.

2. Establishment of reservation by treaty, statute, or executive order implies reservation of water rights within the boundaries of tribal land.

3. The water rights are reserved as the date of creation of the applicable portion of the reservation. Competing users with prior appropriation dates under state law take precedence over the Indian rights, but those with later dates are subordinate.

4.  The quantity of water reserved for Indian use is that amount sufficient to irrigate all the practicably irrigatable acreage of the reservation.

5. Winters’ rights are not lost by non-use”.

Public Law 280- Only Making Matters Worse

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Navigating through the complex web that is American Indian Law one is bound to come across Public Law 280.  Passed in 1953 by congress, it seeks to grant state authority for matters involving Indian litigants. Effectively reducing federal involvement in such matters. However, will this was a radical shift it was not a complete relinquishment of federal intervention in tribal affairs. As it did not end empower the states with complete jurisdiction. It did not end the land trust relationship between the federal government and the tribes (p.176). The tribes also continued to retain sovereign immunity (p.176).  See California V. Quechan Tribe  (p.176). This shift in jurisdictional authority was not openly welcomed by the states. Congress granted law enforcement to the states without any appropriations to fund such efforts (p.177). The tribes were irked by the fact that state jurisdiction was extended over tribal affairs without their consent (p.177). Unquestionably making federal authorities the bootleggers of this legislative arrangement.

It is important to note that the extent to which a state possesses authority over tribal affairs has varied. The varying levels of state responsibilities have been spelled out in subsequent revisions to the law. Six states were even allotted authority over specific crimes committed by Indians on tribal land.

18 U.S.C.A  Section: 1162a: (P. 178-179).

Alaska- Criminal and civil Jurisdiction over all natives except for those belonging to the Metlakatla tribe

California- The state has been provided criminal and civil jurisdiction over all Indians.

Minnesota- Jurisdiction has been extended to the state except for members residing on the Red Lake Reservation

Nebraska-  The state has been provided criminal and civil jurisdiction over all Indians.

Oregon- Jurisdiction has been extended to the state except for members residing on the Warm Springs Reservation.

Wisconsin-  The state has been provided criminal and civil jurisdiction over all Indians.

In effect enabling the states to have the same authority to enforce the law insider the reservation as they do off of Indian land (p.179).  To prevent any legislative inconstancies Chapter VI, Sec D, Supra; of Public Law 280 includes the verbiage “.. by or against Indians..” (p.179). Handing over full law enforcement authority to the six listed states, minus any noted exceptions. Despite the overreach of state authority over tribal matters, this amendment does not clearly distinguish the role of tribal law enforcement. It is assumed that the tribes can only formulate laws that “…complement state..” (p.180). However, in regulatory areas that are not specified in Public Law 280 such as hunting/fishing rights, tribal regulations, and taxation “… the state lacks general powers…” (p.180). It is slightly reassuring to see that in the context of tribal jurisdiction that “taxation without representation” is being adhered to.

As previously mentioned, Public Law 280 also extends fully civil jurisdiction to the six states listed above.  In other words, the states have been empowered to rule on disputes involving Indians that transpire on Indian soil. This power vested in  28 U.S.C.A. Section 1360a. This amendment side-stepping the ruling in  Williams v. Lee (1959) which resulted in a ruling that the states do not hold adjudicatory power over civil matter arising in Indian country (p.181). However, under section 1360b prohibits the states from making judgments regarding Indian trust lands (p.181). Providing a relatively minor check on state power over tribal affairs.

Odds are congress could not foresee many of the challenges presented by Public Law 280 and its subsequent amendments. Providing the astute observe with a shining example of legislative hubris. One of these noteworthy and burdensome controversies is whether city or county ordinances as civil laws of the state. Questioning whether such municipal laws apply to Indian lands that fall within the town’s geographic boundaries (p.182). The ruling in Rincon Band of Mission Indians V. County of San Diego that “general applicability” extends to state laws and not local ordinances (p. 182). Only adding fuel to the fire, the Ninth Circuit Court expressed that congress “… imposing detailed local regulations upon Indians..” hinders their ability to self-govern (p.182). The Supreme Court has not directly ruled that applying local laws to the tribes is outside of the scope of Public Law 280. However, the SCOTUS has “expressed doubt” that the law enables local towns and counties to do so (p.183).

The second major conundrum conjured up by this superior piece of legislation  (sarcasm) is if the states have the right to enforce the law why wouldn’t they have the power to legislate laws applicable to the tribes? Per the language of  Public Law 280, the states have the power to decide cases, but not explicitly granted the power of legislation (p. 183). There is a portion of the law in which it could be interpreted as granting legislative power to the states.  Stating that “ … the state shall have the same force and effect within… Indian Country as it does elsewhere within the state” (p.183). The SCOTUS ended the intense debate in the ruling of Bryan v. Itasca County (1976). In this scenario, Minnesota County attempted to assess taxes on personal property that was owned by Indians on Indian soil (p. 183). It was argued that since the property being taxed was not trust lands, it was with n the power of the state to collect such taxes. However, the SCOTUS ruled the intention of the civil provisions under Public Law 280 was to enable the states to resolve disputes. However, extending this power to taxation veers outside of the intended scope of the law (p.184-185).

Public Law 280 managed to further complicate the matter of jurisdiction in Indian affairs. The law is inherently unjust, due to the lack of consent on the part of tribal and state governments.  For the applicable tribes in the six referenced states, they have lost more autonomy over governance within Indian territories. The states ended up inheriting higher law enforcement expenditures and more headaches. The matter of jurisdiction was already complex before 280 passing. It only serves to compound an already convoluted situation.  By adding additional intricacies, merely to relieve the federal government from duties that have been traditional held under its jurisdiction. Typically, federalism does appear to an attractive solution to most legal conflicts. Not so much under these circumstances.  The feds are only passing the buck on a mess they created.

What is the Ideal Age for a Voter?

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Continuing in the spirit of my previous essay it’s fair to say that both ends of voter age distribution possess distorted incentives. Generally, due to being relatively insulated from the direct or immediate consequences of spendthrift policies. If the tendency of the elderly voting blocs and young voters is to skew towards fiscal profligacy, the question becomes what age group constitutes the ideal demographic for economically responsible voting behavior? I would contend the 35 to 65 age demographics would be the best answer. Why? By the age of 35, most people are being taxed, they own property, and have outgrown their phase quixotic idealism. Again, like anything else in this world, there are expectations.  Homeownership is slightly down among Millennials when compared to previous generations (metric being homeownership by age 30). The ideal age ceiling for voting rights of approximately 65 is self-explanatory. Once a person starts receiving Social Security it only stands to pervert their policy preferences. However, if the age for Social Security eligibility were to be increased, I would say that the ideal maximum voter age would also increase. Within this age span, there is a thirty-year period where the average voter would have their incentives properly aligned. Versus being easily swindled by lofty promises of “free” services.

Creating a firm age requirement does have quite a few flaws. It does not account for individuals differences. For example, a 23-year old business/homeowner has more of a stake in matters of taxation than the 32-year old who lives in his mother’s basement. Age restrictions obtusely apply a blanket rule that is insensitive to circumstantial differences. Being somewhat sympathetic to the concept of Rothbardian homesteading, it’s hard to perceive a chronological age as being the main qualifying factor for voter competency. There certainly is a correlation between the two. In an attempt to acknowledge differences in individuals’ capacity for sound voting behavior it would be reasonable to provide procedures for opt-in and opt-out exceptions to the 35-65 age range.

Voter opt-in Requirements Under the age of 35

  • Must not have been claimed as a dependent by parent/guardian on the previous year’s income taxes.
  • Qualified Voters under the age of 35 years of age must meet the following criterion
  • Own a house, condominium, Townhouse, or plot of land exceeding $25,000.00 in value.
  •  If qualifying under the property ownership contingency  tax documentation is required.
  • If a prospective voter, does not own property but is a proprietor of a business or owns 25 % or more shares in a company they can qualify to vote.
  • Owning $50,000 or more in assets including but not limited to Precious metals (gold, silver), valuable jewels (diamonds, rubies, etc.), stock shares, government bonds, or equivalent amount in an IRA, 401k account, or other variety of privately funded retirement savings plan.
  • Must have not received any benefits from any public assistance programs (WICC, Snap, section 8 housing, etc.) within the past 2 consecutive years. This does not include the collection of unemployment benefits.
  • Those who have declared bankruptcy within the past five years are ineligible to vote if under the age of 35 years of age.
  • Voting rights are extended to those who are married or in a common-law marriage (under state law) if their spouse qualifies under the above criteria. Providing a prenuptial agreement was not signed before marriage.

Retaining Voting Rights If over 65.

  • A senior citizen can retain their status as an eligible voter if they decline to collect Social Security benefits. This opt-out decision will be penalty-free. However, if a senior citizen over the age of 65 wishes to collect Social Security benefits, they effectively relinquish their legal right to vote.

Author’s Note:  Please note that the above is not a formal or serious policy proposal. Rather a theoretical exercise in what such a proposal would look like and be designed to curtail the incentive problems faced by younger and older voters. I realize there the above-detailed contingencies are vague, riddled with loopholes, and are shallow in scope. Not to mention inherently discriminatory and to some extend illiberal (in the classical sense of the phrase). Not to mention most likely illegal. Please interpret this blog entry as an intellectual exercise.

Maximum Age to Vote

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Last year, a debate formed around the issue of lowering the voting age to sixteen in the United States. While few have quibbled over the minimum age to be eligible to vote, even few people have ever considered creating an age ceiling for voter eligibility. Younger voters and older voters suffer from the same problems when voting for candidates and policies. They both have distorted incentives. Which have been warped by a lack of skin in the game. If you do not own property or own property but are not meaningfully contributing to the tax pool your you are effectively insulated from the consequences of taxation. This has the potential of voters electing candidates and policies that advocate for profligate spending.

Some may argue that seniors have a right to vote on policies that directly impact them such as social security. Especially considering they have rightfully paid into these entitlement programs their entire lives.  However, this perspective does not consider the facts Baby Boomers are collecting far more than what they have paid into these programs. Due to the vast number of Baby Boomers collecting and their lengthier life expectancy when compared to previous generations. Two variables were not considered when Social Security was first established in the 1930s. Effectively creating an intergenerational transfer of debate and inflation to be borne by subsequent generations. In many ways, this distortion in incentives is more dangerous than that of younger voter blocs. At least they will someday have to contend with the consequences of such policies. The intergenerational transfer of entitlement programs and publicly funded pensions has to be one of the most salient examples of fiscal illusion. Shifting payment to the children and grandchildren of the beneficiaries effectively severs the connection between spending and taxation.

This is not to say that senior citizens do not possess the facilities for sound judgment. What incentive do they have to support fiscally responsible policies? Very little. Ultimately, they will not be the ones picking up the bill. This sheds light upon the land ownership requirement for voter eligibility implemented earlier on in American history. If you are not subjected to taxation you are going to be less mindful of economic matters afflicting the country. This criticism is notably aimed at college students who can vote but do not meaningfully contribute to the tax pool. Elderly citizens are in a similar situation. Most no longer work or only work part-time. Yet, they collect large sums of money collected in the form of government allocated benefits. Naturally, if you are making meager sums of money, you are going to be relatively insensitive to the levying higher taxes on the upper-income brackets. Even if such targeted taxation would result in less investment in the U.S. economy. Then again if you are already retired, why would this be alarming?

If an individual is receiving publicly funded benefits later in life they are shield from having to pay for these services. They are also disconnected from the adverse ramifications of this vast re-distribution of resources. Considering the lack of sensitivity to the consequences, this makes this voter demographic a prime candidate for manipulation by political pressure groups. Lobbying organizations that advocate on the behalf of seniors such as AARP understand that Social Security and Medicare are both powerful bargaining chips. The scintillating spark to ignite the indignation and ire of senior voters. Not to mention acknowledge that it is the secret weapon in mobilizing elderly voters to become devout participants in the political process. Few demographics are as steadfast regarding political participation than seniors. Groups such as AARP attempt to align the incentives of seniors towards voting for an elected official that is left-of-center. Due to their historical congeniality towards entitlement programs. Fostering a decades-long coalition between the left and seniors’ advocacy groups. Typically, promoting fear-mongering surrounding the potential of right-wing politicians eliminating treasured entitlement programs. Most of these claims are either highly speculative or hyperbolic. Due to the fact to alienating your most loyal demographic of voters would be political suicide. The threat of losing the senior vote will keep even the most vehement budget-hawk on their toes. The myth of Republicans being willing to commit political suicide remains strong. Leading these groups to skew the voting of incentives of seniors towards less fiscally responsible policies and candidates.

Individual votes are indeed inconsequential in elections. It’s more the overall aggregate voting pattern of a specific voter bloc that is significant. The key is to pander to the sensibilities of your targeted demographic. Either through factual discourse or the spread of misinformation. There are so many strategic groups gunning for the senior voting bloc, that unless one is well-versed in political science it would be difficult to distinguish these attempts at manipulating voting behavior from well-intentioned advocacy. Unfortunately, there is quite a bit of overlap between the two. Only confusing matters. It is important to remember that someone other than seniors stands to benefit from advocating for generous entitlement programs through increased job security. That is the administrators operating these departments that manage programs such as social security. Those employed by AARP benefit from having a cause to advocate. It is not pure beneficence these organized bodies push for increasing allocations for entitlement programs. I believe that most seniors still have the cognitive capacity to navigate these waters. Why should they have to?  If you worked your entire life, raise kids, etc. why still grapple with constantly being manipulated by the invested interests in Washington?  From the standpoint of mental health, it may also be advantageous to implement a voting age limit.

If those entering their golden years have an iron-clasp on their entitlement benefits at what age should they cease to be eligible to vote? This answer is quite simple. As soon as an individual is old enough to qualify for Social Security. Presumably once a person reaches retirement age they will opt to receive these benefits. Meaning they no longer have a stake in supporting fiscal responsible policies. To remedy the incentive problem, I would be willing to compromise with the following contingency. If a senior citizen would like to retain the right to vote they should forfeit the ability to collect Social Security. While they may not completely have skin in the game in they no longer generate taxable income, their incentives structure has been completely compromised by a boundless array of publicly funded entitlements. Once you start to accept these benefits and begin to expect them, you have already sold your vote to advocacy organizations, bureaucrats, and opportunistic politicians.  Making relinquishment of voting rights a fair trade-off if one is looking to receive social security.

Why Are They Urging Us to Vote?

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The 2020 Election season will be historically noteworthy for several reasons. One characteristic that cannot be underscored is the aggressive voting campaigns. Celebrities have been demanding we all vote. Internet advertisements have been hounding us to vote. Campaigns at the state and national level have been emphasizing the accommodations made to enable near-effortless voting. Which is perceived as being particularly important with the looming specter of COVID-19 threatening to reduce voter turnout. Historically, voting rights and “get out and vote” initiatives have been the enterprise of left-wing political interests. Not that conservatives are inherently anti-voting, but due to the fact, right-wing populism is a new phenomenon.

Voter empowerment has always been a thinly-veiled attempt to pander to the average constituent. The aptitude of an individual vote holds little sway over the actual outcome of elections. Making the overall influence of a solitary vote is near-zero (P.603). The advocates urging the every-day citizen to vote side-step this issue through embellishing upon the impact of a single vote. One vote will not sway the overall aggregate electoral vote. That one vote is numerically inconsequential. Even on the microscopic scale of a small village of two-hundred residents, a single vote only 0.5 percent of the vote. Exemplifying the fact that the ruling power of voting comes from the aggregate voting power of various political coalitions. The collective-decision making power of organized political interest proves to be more effective than a single disorganized voter (p.54-56). The attempts to summon all eligible voters to do so serves as circuitous means of forming a like-minded voting bloc. The paradox being those who have an invested interest in promoting the institution of nominally democratic elections need to prey upon the illusion of every voting carrying weight in the polls.

Generally, the promotion of participation in the “democratic” process is purported to be for the “common good”. A profoundly ambiguous statement that could be applied in a litany of various subjective interpretations. What is advantageous for one person may be detrimental to another. Making claims of initiatives being in the name of the common good board-line spurious.  There is something of a gulf between the best interest of the individual versus that of society (p.284). Without a clear and concise criterion of what constitutes public interest, political pressure groups are enabled to take the reins and divert the cause for their purposes (p.283). The utilization of powerful imagery helps the invested interests mold public perception like clay. Conjuring apocalyptic images of a world with health care, social security, and other entitlements brought forth by a tyrannical despot. Allusions to tyranny captive the imagination of the American voter quite vividly due to the context of the nascent years leading to the Revolutionary War. Most of these claims are hyperbolic and are intended to urge the viewer to vote.  The foreboding catastrophe resulting from not casting your one measly vote may result in the demise of the republic.  Such tactics are nothing more than providing misinformation that is tantamount to psychological manipulation.

Aside from this exaggerated claim being cartoonish, they do not consider informal checks on power. By virtue of the median voter theorem, a true contender in a political race would not dare commit the cardinal sin of outright eliminating such programs. Some may discredit this argument as our current president is somewhat unorthodox. Even if the pressure of government agencies or constituencies does not hold, the pressure of lobbying groups will.  For example, the hyperbolic bombastic rhetoric of the Republican party overturns social security is laughable. Equal to political suicide. Seniors organizations such as AARP weld a significant amount of lobbying power. Could effortlessly embark upon a rapturous counter-campaign against the GOP. Potentially leading to a drastic drop in the senior vote, arguable one of the most active voter demographics in the country. The dystopian tone of these advertisements reflects a sensationalized depiction of political reality. A fabricated reality was political pressure groups have surrendered all of their political purchasing power to the voter. Which is a highly unlikely scenario. Especially when confronted with the fact that there is a plethora of perks and money to be made by lobbying. Only serving to solidify the fact that the myth of “every vote counts” is a pure illusion.

If the consequences of not voting are not as desirable as perpetuated by the media and the voter has next to no control over the result, what is the point in trying to mobilize voters? Stressing the moral imperative of arriving at the polls over hell or high water?  The observant reader probably notes how it was previously mentioned that voter empowerment was an enterprise of the left. Coupled with the storied history of left-wing media bias, the motives of the “get out and vote” campaigns become much more salient (p.49). There is a tightly woven network of celebrities, musicians, actors, and media personnel who operate as the mouthpiece for the moral imperative of voting. These de facto “Baptists” help paint the grisly picture of an America where the interests of the common person have not been represented. Doing all of the heavy lifting for the true beneficiaries. Those who stand to benefit politically from such initiatives. Democratic politicians, trade associations, administrators for entitlement programs, the community organizers who host and plan voting drives, and so on. Most of these interested parties stand to benefit through career advancement, increased job security, increases in social clout, etc.  All of these concentrated benefits were acquired without productively contributing to society. Textbook definition of rent-seeking. The morally suspect part of these unearned benefits is that isn’t obvious that these self-interested individuals truly haven’t contributed to society.  Due to the virtuous choir of the media mouthpieces creating the smoke-screen for the beneficiaries to hide behind, we are deceived into the belief they are working for our benefit.

It can be surmised that the reason for the upsurge in a panic regarding this election is based on the motive to oust Donald Trump out of office. I disagree with his politics. After all, I am a steadfast and unwavering free trader. The magnitude of moral indignation facing the president is unjustifiable. To genuinely believe that Joe Biden is the white knight who is going to save the United States from uncertain cataclysm, is comical. Neither man ideologically represents the correct direction for this country. Then again, that may precisely be the reason both are the premier candidates for the job.  Lobbyists and bureaucrats need elected officials they can bend for their purposes. Needless to say, the droves and networks of various spokespeople urging us to vote are not truly working in our interest. Despite whatever flimsy claims they make. Voting does have a valuable quality as a form of self-express, but that is about it. The odds of your vote deciding the next election is nothing more than pure fantasy.

If Were to Murder A Non-Indian on Tribal Land….

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Let’s say hypothetically, I am a drug dealer selling fentanyl pills. One of my customers owes me an exorbitant amount of money. I conclude that I need to make an example of this individual. I cannot perpetuate the image of being a pushover and get very far selling opioids on the black market. Beyond that, there isn’t any legal recourse for recouping my money. I don’t believe there is a claims court in the United States that would back me on this one. I need to kill my customer over this nonpayment issue. I plan to meet this gentleman, let’s call him Bob, by a desolate farm located on the Ak-Chin Reservation, just outside of Maricopa, Arizona. Bob is under the impression that we are meeting to discuss a “peaceful” resolution to our dispute over the pills. When we meet, Bob extends his right hand for a handshake. I clasp onto Bob’s right hand while concealing a switchblade in my left hand. As Bob pulls me towards him for a “pound-hug” I stab him five-times in the abdomen before he can even say “What’s up”. I then quickly vacate the scene of the crime. Leaving Bob to die. Then days later I am apprehended by the authorities.

Does the question become which law enforcement agency took me into custody? After all, the astute observer would notice this crime transpired on tribal land. As a legal matter when it comes to crimes committed in “Indian Country” the situation becomes quite convoluted. The core complexity of American Indian Law (law about the relationship between the federal government and the sovereign tribes) is the dispute over jurisdiction. However, depending on the location, the nature of the crime, and the tribal status of the persons involved will sway the needle on which law enforcement agency needs to intervene.

Determining jurisdiction for crimes committed in “Indian Country” used to be a simple matter. During the colonial period, the tribe had authority over any crimes committed within a tribal territory (p. 103). After the end of the Revolutionary War, the federal government assumed jurisdiction over crimes by non-Indians perpetrated against Indians on tribal lands. As a means of creating a “buffer” between the competing interests of the two populations (P.104). The federal authority of crimes committed in “Indian Country” was formally extended to the U.S. government through the Federal Enclaves Act. Over the years have undergone various statutory revisions (P.104). Per William C. Canby Jr. the ruling on Ex parte Crow (1881) set the precedent pattern for federal authority being extended in cases of Non-Indian on Indian crime being addressed by the U.S. government. Indian on Indian crime being handled by tribal governments (P.104). The Supreme court initiated this pattern of judicial decision making through ruling that the Enclaves Act excludes federal intervention in Indian on Indian crime.  In the Crow case, the involved parties were both of tribal affiliation and the shooting transpired on the Great Sioux Reservation. Placing jurisdiction squarely on tribal authorities.

In reaction to this ruling, congress then went on to pass the Major Crimes Act. Which extended federal authority to seven crimes even if they were committed on Indian soil (p. 105). Chief Justice Marshall’s ruling on  Worcester v Georgia set the tone for tribal jurisdiction for the next fifty years (p.108). In this case, George residents were living within the bounds of tribal land without proper permission.  Marshall struck down any action on the part of the state government noting it was outside of their legal authority. Stating on Cherokee land “… the laws of Georgia can have no force…” (p.109). This decision was held until fifty years later when the criminal jurisdiction question become muddied. While the matter of jurisdiction more clearly defined for Non-Indian on Indian crime and vice versa on tribal land, what about Non-Indian on Non-Indian crime on tribal land? Would the tribal authorities have the jurisdiction to punish the offenders?

This leads us to the 1881 case of United States V. McBratney. A case where a Non-Indian man killed another individual who did not have any tribal affiliations on the Ute Reservation in Colorado.  Surely the tribe would have authority over this crime? If not the tribe, a division of federal law enforcement due to the federal government’s guardianship of the tribal nations? The Supreme Court saw the situation in a different light. Departing from the previously established judicial conventional wisdom.  The high court ruled that federal authority could only exercise legal jurisdiction “over places where they have exclusive jurisdiction” (p.110). This unorthodox ruling was based upon the premise that Colorado was to be admitted to the Union on “… equal footing with the original states…”. Meaning that on Non-Indian on Non-Indian crime, Colorado’s laws extended throughout the boundaries of the state. This also includes the Ute Reservation (p.110). Needless to say, detractors criticized this decision because it conflicts with the precedence established in Worcester V. Georgia (p.110).

After I killed Bob, I was arrested and tried in court by the state of Arizona. Since neither Bob nor I were a member of any recognized tribes. If I was under the impression that committing the crime on the reservation would save me from state persecution, that was a foolish assumption.  However, considering the rural terrain of the reservation ,it was the prime location to dispose of a body.  

Tocqueville on The South and Slavery

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Some of the keenest observations made by Alexis De Tocqueville in Democracy in America were made in his comparisons between the agrarian South and industrialized north. Tocqueville’s characterization of the two regions of the new American republic was so powerful they still passively influence regional stereotypes even in the modern era. The northern eastern United States is presented as a bustling hub for commerce and productivity. The south being caricatured as being rural, lackadaisical, underdeveloped, and board-line primitive. This may have been somewhat true in the 19th century. However, to hold such a view as being accurate today would be a gross demonstration of ignorance. Not too much it would require drastically underestimate the economic potential of cities such as prosperous Atlanta, Georgia, or the buzzing tourist town of Nashville.

In the nascent period of American history, southern states weren’t luring northern away from  Boston with low taxes and warm weather. The South was still primarily reliant on agriculture to fuel its economy. As we all know most of the labor was done by slaves. Tocqueville goes so far to point to the use of slaves in the south being the core differentiating attribute between the North and the South (p. 408).  Why? The practice of slavery in the south influenced many aspects of southern culture at the time. The absence of the practice in the north also helped shape the industrialized economy and culture of New England. Where the Weberian Protestant work ethic was very much salient. Through possessing a steadfast and unwavering focus on commerce the north ended up outpacing the south economically and technologically. Due to the lack of industrialization, much of the southern United States was less apt to become urbanized. However, considering the large plots of land required for agriculture lack of infrastructure and urbanization is understandable.

Farming is certainly a labor-intensive vocation. Requiring years of dedication spending engaging in hours of back-breaking working daily. How could we say that southerners of the 1800s did not possess a strong work ethic? The typical plantation owner did not do the work themselves. They had their slaves sweat and toil to produce the crops they sold. Making labor a necessity of the less fortunate. As ascribed by Tocqueville this subordination of work not only would be indicative of the luxuries of “idle men” (p. 407) but a more pervasive attitude towards labor. Relegating work to being only acceptable for the poor or slaves, it implies those above a specific status should not work. Especially when men of money have much more entertaining pursuits to indulge in. Such as hunting, gambling, socializing, womanizing, participating in local politics, etc. Drawing a sharp contrast with the self-made tycoons of the industrialized northeast. Where wealth was more of the byproduct of enterprising wit than old money or traditional social arrangements. Almost expressing a distant desire to return to the days of the monarchy. Where the slaving owning elites would either serve as the ruling class. Their slaves would be nothing more than captive constituents Analogous to the serfs of medieval. However, while the serfs were owned by lords only be being tied to the land and insurmountable debts. In the humid countryside of 19th century Georgia, the plantation owner possessed the land and the workers.   

Alexis De Tocqueville did point out that slave owners advocated for the continuance of the institution for the sake of profits. But rather to maintain their aristocratic lifestyles. To many unacquainted with the economics of slavery, this may come as a bit of shock. Tocqueville flat out declares slavery less efficient than free labor. A view is also expressed in the book The Real Lincoln by economist Thomas DiLorenzo. Tocqueville citing that the observation that paid workers tend to work faster than slaves (P.406). This being a core driving force of any economy. What Mr. Tocqueville is implying that the slave owners could not possibly be solely concerned about profits. If they were they would have switched over to paid labor. Due to the increase in efficiency and decreased production costs (food, room/board, and clothing for the slaves). In contrast, the profit-centric northern capitalists would see this transition as a no-brainer and a strategic shift in production methods. This would require the southern elites to become more involved in managing the process. Rather than have administrative and managerial matters handled by slaves that have proven themselves capable of such higher-level tasks. Hence, foiling the regal lifestyle fulfilled with entitlement, unearned honor, and leisure.

Bootleggers and Baptists XIII: The Dawes Act of 1887

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Frequently in public policy regulations that have nefarious intentions are obscured in a cloak of beneficence. Generally, the deeper you explore the history and the context behind the regulation or law its true purpose is eventually exposed. This is particularly true of many of the laws passed by the federal government intended to “help” Native Americans. Many of these paternal laws have done nothing more than subordinate the voluntary associate of tribal members to the authority of the federal government. I am not necessarily a proponent of the lofty, wide-eyed, and quixotic brand of social justice espoused by the contemporary left. But many of these laws impose notable restrictions on the natural rights of tribal members. Such as violating property rights, free association, contract enforcement, and even the right to self-determination. Regardless of the ethnicity of an individual, these rights should be upheld to all people. This isn’t so much a plea for equality of outcome, but rather a firmly held moral concern.  When the law is weaponized to legalize crimes against persons and property, the law has failed to achieve its ends.

One such act that codified a gross injustice against the native people of the United States was the Dawes Act of 1887. Colloquially known as the General Allotment Act. The legislation was sponsored by Massachusetts Senator Henry L. Dawes and was enacted in February 1887. The act provided the authority to the executive branch to allocate “.. portions of Reservation land to individual Indians..” for agricultural purposes. (p. 19-20) 160 acres would be provided to head-of-household and 80 acres to other individual tribe members.  The acreage was doubled if the land was only suitable for grazing (p.20). The aloof Baptists in this scenario justified this act on the moral grounds that this would help the native tribes in the long run. Alleviating the poverty tribal members experienced. Through providing land for cultivation the natives could be elevated to being a middle-class farmer and better assimilate to American society (p.19). If history is any indicator, good intentions and legislation have the propensity to result in tragic consequences for American Indians. Unwittingly, the good intentions of these nineteenth-century social justice warriors provided a moral smokescreen that allowed less sympathetic individuals to utilize the law for their callous benefit.

Land disputes between Natives and European settlers are nothing new. These disagreements date back to the early colonial period of America. Typically, the Native tribes received protection from the aggressive advances on tribal land by colonists from Britain. This is why during the revolution most tribes aligned themselves with the crown (p.10).  Then after the new republic was formed, the Articles of Confederation delegated the power of addressing Indian affairs with the federal government. This was done to preemptively avoid military conflicts with the tribes over land. Due to the financial stresses of the Revolutionary War (p.10). Under U.S. Const. Art I, Sec 8, Cl 3.  and Art II, Sec 2, Cl 2  congress was provided with the power to regulate tribal commerce and the President with the ability to make treaties with the tribes (p.11). All done in the name of stability. Placing the federal government in the precarious situation of balancing the interests of the Natives and settlers. Otherwise, the demise of the young republic may have been inevitable.

Fast-forwarding approximately a century, it clear there has been a long-established that many Caucasian Americans perceived tribal people as more of an obstacle than their indigenous neighbors. Making these individuals the proverbial bootleggers of the Dawes Act. Why?  What do the Americans vying with the Natives for land have to gain from this law?  The act was enacted in the absence of any consent requirements (p.21). Making it easy for the federal government to divide up the land without any tribal input.  To get the legislation to pass the law was amended to allow whites to purchase any remaining land. The result of the law being a drastic decrease in land ownership among tribal people. (p.21). Even worst, the land was not distributed in a manner that was logical to the needs of farming and grazing. Creating a  “checkerboard” pattern of “alternating white and tribal-owned land”. Making it impossible to utilize the land for grazing or farming (p.22).

 In the end, putting aside any good intentions, this policy only made matters worse. The policy not only was poorly implemented but was manipulated to benefit non-tribal members. Legislative rent-seeking at its finest!  Only provides further evidence that quite often all the downstream repercussions of regulations can rarely be considered. For a policy originally intended to lift Native Americans out of poverty did the exact opposite! Making this abject policy failure a shining example of what is referred to in the public policy as a cobra-effect. The Dawes Act only further deteriorated the economic quality of life of America’s Native people.  

The Anatomy of Lottery Revenue

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Few people like taxes. Most view them as a necessary evil. Some even view taxation as a form of theft. However, if we are going to levy taxes at the very least they should be effectual in generating revenue. Otherwise, the taxing of income, property, and inheritances are pointless. There must be some utility in this imposition for it to be justifiable. One salient target for raking in tax revenue is the taxable proceeds from gambling.  Which has served as the impetus for the liberalization of gambling regulations across the United States. Despite rates of taxation on lotteries and casinos being higher that of other industries gambling brings in only modest revenues. Rates on casino revenues ranging from 6.75 percent in Nevada and to the exorbitant rate of 50 percent in Illinois. Only $ 8 billion in tax revenue was collected by the states in 2011, this is out of an approximately $68 billion industry if the estimated revenues of tribal casinos are accounted for. If one was to consider the proportion of every dollar spent on lotteries that end up being recouped by the state, it would be tempting to assume that it was a better means of generating revenue. Especially when in 2018, $27.6 billion in revenue was generated by state and local lottery games.

Here’s a breakdown of how the portion of each dollar spent on lottery games retained in state taxes (Courtesy of the MERCATUS Center).

  • 20 % of every dollar spent is going towards administrative costs of maintaining and administrating the lottery.
  • 50 % is returned to the players in the form of prizes.
  • 30 % is retained by the state in the form of tax revenue.

The Long White Beard Fallacy

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Introduction:

There are few fallacies as prevalent as equating age with wisdom. This false assumption is predicated on the belief that age tends to correlate with the accumulation of life experiences. Conventional wisdom would dictate that a prudent mind would be able to formulate deep insights based upon these plentiful experiences.  However, this presumes that the individual of advancing age is capable of shrewd judgment. Much like another demographic of people, some older people are not.  This error in thinking has been enshrined in the mythical image of a sagacious prophet or philosopher. A Socratic or an Aristotelian figure radiating the mystique of lost ancient knowledge. While imagery plays a powerful role in our perception, picturing every individual with a long white beard as being wise is an illusion. Simply confuses correlation with causation. The reality reduces the saying of being “another year older and another year wiser” to an empty statement.

Believing that every older individual has amassed a stockpile of knowledge ignores several prerequisites that make an individual inclined to become a wise person.  These characteristics include intellectual curiosity, the ability to learn from experiences, and the capacity for sound reasoning. Without these attributes it doesn’t matter if a person is twenty-five or ninety-five, they cannot be wise! To credulously accept conventional wisdom without any forethought makes an individual nothing more than a passive fool. To only continue to do so for decades on end is antithetical to wisdom. It is quintessentially spending an entire lifetime relying on lazy thinking, which will not lead to acquiring any knowledge. Claiming that such an individual is wise or knowledgeable irrespective of their chronological age is borderline criminal.

Intellectual Curiosity:

Encapsulated in the words of the wisest man among the ancient Athenians, “The unexamined life is not worth living”. Arguably one of the most cited quotes in Western Philosophy conveys a lot of the nature of knowledge and wisdom. If one is not inclined to pursue the knowledge they cannot become wise. This is regardless of how many years they have spent living on this planet. Most true knowledge generally needs to be pursued, not passively obtained. The thought process of an individual content with accepting the superficial appearance of the world is not one who is going to explore ideas or the nature of the universe. Rather have their beliefs bequeathed to them.  Versus actively discriminating between two choices based on acquired knowledge. To merely accept the status quo for decades on end without any deeper contemplation is the opposite of being wise. This person has only spent their life regurgitating the ideas that have been inculcated into them since childhood. Instead of thoughtfully engaging with ideas to acquire knowledge.

Spending a lifetime staring at the surface deludes people into thinking they understand how the world works. Creating the erroneous belief that they can easily formulate solutions to problems or have a firm grasp of the nature of reality. Unfortunately, they have only been gazing at shadow puppets on a cave wall for all these years. Attempting to derive a complete understanding from such an inadequate foundation is impossible. Further substantiating the importance of having a thirst for knowledge to achieve the coveted status of a wise person.  A wise person does not succumb to the illusion of having the complete picture when all that is available are thin silhouettes. They have a firm understanding of the limitations of knowledge and acknowledge that learning is a continual process, not a destination. They echo the sentiment of the Socratic profession of ignorance keeps themselves open to accepting new information. Through remaining humble and reminding ourselves that there are severe limitations on our breadth of knowledge we allow ourselves to broaden our horizons.  If we assume that due to our age we automatically have a thorough understanding of the nature of the world, we are only fooling ourselves.  Such self-deception does not amount to wisdom.

The Ability to Learn from Experiences:

It is easy to assume that because we lived through an experience we truly have a strong comprehension of how to handle it if it reoccurs in the future. Once again, this is an attribute that is tantamount to self-depiction. Making matters only worse, our elders feel so confident in their abilities to draw meaningful inferences from these anecdotes they firmly distribute this advice to younger generations. Creating personal allegories that become imperative that younger folks learn from. However, how are these sage individuals so sure they have pin-pointed the precise source of the issue? Narrowing it down to one salient detail is an oversimplification of a complex situation. There could be multiple issues resulting in the problem at hand.  The specific contextual details of the current issue may differ just enough from the situation experienced by the older individual that their remedy may not be applicable. Dismally, even after all of these years, they have never been able to accurately determine the source of the problem. But have spent the past number years under the false impression that they know the correct course of action. People have the unfortunate propensity to conflate and transpose details that lead them astray. Rendering the solution to being ineffective. Attributing the issue to a salient detail rather than the true cause of the issue. A confusion that can lead a litany of personal fables and longwinded tales resulting in faulty advice.

It should also be noted that if an individual lacks intellectual curiosity, the aptitude of them ever getting down to the heart of a problem is slim. The capacity to learn from experiences is an attribute that dovetails to tightly with intellectual curiosity.  Those of an inquisitive nature are much more likely to weigh all the variables and then cautiously attempt to conclude. Resulting in sound retrospective analysis. While those accepting a crude and rudimentary version of the truth are prone to devise a solution from incomplete information and half-baked premises and reasoning. When examining experience and only accounting for an incomplete depiction or inaccurate assumptions about the scenario, it is impossible to learn from that experience.

Capacity for Sound Reasoning:

You can possess the learning capacity, applying information, and drive to acquire knowledge. None of this will make you wise if your thinking is plighted with biases and fallacies. To have all of the information but no means of interpreting it essentially makes this knowledge useless. What good is information if my interpretation of it is clouded by my prejudices. Capacity for sound reasoning is so integrally related to learning from experiences, it could be argued that without sober reasoning skills we would not be able to draw meaningful lessons from our past experiences. Odds are we would again resort to spouting the convention wisdom specific to our generation. Following the crowd does not lead you to the truth. Conforming for the sake of conforming is nothing more than a flaw in reasoning. Cemented and immortalized in the appeal to popularity fallacy. Popular consensus can lead us down some dark and treacherous roads. One only needs to be reminded of Nazi Germany to witness the grisly ultimate consequences of this fallacy. A genuinely wise individual would be able to recognize the danger in mindless acquiescence. Versus firmly leaning on the thoughtless cliché of referring to “back in my day”. However, times have drastically changed since the youth of well-meaning elderly folks.  Espousing outdated platitudes for fifty years ago (that most likely were even incorrect back then) is not equal to disseminating wisdom.

Assuming that advanced age automatically is equal to wisdom presents another fallacy in reasoning in its own right. That is the appeal to authority fallacy.  Utilizing age as an indicator of wisdom is setting that up as a social signaling mechanism. We hold an authoritative reverence for the advice provided by an elderly person, even though that advice could be flawed. We are allowing the variable of age to obscure our better judgment.  If we truly thought about it, only a small minority of people under the age of sixty-five are truly wise.  Do these individuals all of a sudden alter their habits and adopt a proclivity for sound reasoning magically after reaching this arbitrary age of retirement? No. Odds are as we get older we tend to become more rigid in our thinking and set in our ways. This may not be true of all individuals, but it does tend to be true for most people.

P X L > C and Liability

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Law and economics would superficially appear to be two disciplines with little interdisciplinary overlap. However, the marriage of the two fields of study has proven to be invaluable in the process of gaining a better understanding of social and political institutions. While the Virginia and Chicago Schools of political-economic have cozy relationships with legal studies, neither were the first to incorporate law and economics. It was the New Institutionalists who first melded the two fields together. The New Institutionalists built upon the work of  Thorstein Veblen and Ken Galbraith with the powerful tool of Marshallian econometrics. Through adapting neoclassical methodology the New Institutionalists were able to provide simultaneously quantitative and qualitative analysis. Progressing both law and Institutional into the realm of the soft sciences.

Welding the overlay of neoclassical economics can legal studies apply equations and utility functions to make accurate decisions on legal issues? Quite possibly. Applying this method in both fields of study can lead to faulty conclusions. Economic modeling assumes ceteris paribus, “all things being equal”.  In other words, presuming all variables remain constant. Such conditions can only be truly held under experimental conditions. However, the resulted yielded may provide us with some important insights even if they do not perfectly mirror actual market conditions.

One nagging issue afflicting court decisions is determining liability in Tort law. Where does the responsibility of the litigant begin and the liability of the defendant end? Ascertaining negligence in many of these scenarios may not be clear cut without precise standards. Thankfully Judge Learned Hand devised an interesting solution that intertwines the methods of law’s sister discipline of economics. Back in 1947 (P.193), Judge Hand formulated an algebraic equation to assess blame in tort law. It is a relatively simple set of computations:

 P= “The probability of Injury”

 L=  “Extent of injury or loss”

C= “The Cost of implementing measures to prevent the accident”

The Equation fully expressed reads as  P X L > C (P.193). Per Hand’s equation, a business or individual is negligent and liable for damages “ if the probable injury to the victim exceeds the costs of avoiding the accident” (P.193).  This equation does condense the decision down to neatly packaged economic contingency. For that alone, this is quite the feat.  Even though I am a layman when it comes to law and economics, there are cases where I could see Hand’s formula failing to accurately assess liability. In terms of ligation for medical costs associated with foodborne-illness, this matter becomes much murkier. In some instances, such as the lawsuits laid against Jack in the Box in 1993, the question of probability is much more clear. Some of the individuals infected with E.coli were served undercooked hamburgers. Serving undercooked meat increases your risk of transmitting food borne-illnesses. Properly training your staff to thoroughly cook the burgers is relatively cost-efficient.

However, let’s consider an example of a food poisoning case whereby metric of Hand’s formula we may run into some difficulties.  For instance the 2009 case against Caudill Alfalfa Sprouts. Many people who consumed the produce cultivated by this company were sickened with Salmonella. How would this company have been able to prevent this outbreak of salmonella? Were officials at the CDC even able to pinpoint the source of the bacteria? Was it due to contaminated water from the irrigation system? Was it due to wildlife defecating on or near Caudill’s crops? When it comes to the ligation involving contaminated crops Hand’s formula is maybe too simplistic. If it is well-established knowledge that irrigation systems have a propensity for harboring salmonella, the accessibility of low-cost water testing procedures and filtration devices may place liability upon the company. How do you gauge salmonella bacterium getting into the water supply that irrigates the crops what if this occurrence is somewhat of an anomaly? Some would retort back stating that this would be weighted in the equation by the probability value.  Unfortunately, there are qualitative attributes specific to the context of the case that cannot simply be quantified.

Despite its faults, in most applications, Hand’s formula provides a reasonable approach to determining negligence.  In certain circumstances, I would be wary of applying the equation. However, in most instances such as a car accident or a slip-and-fall scenario, the formula should work swimmingly. Having devised this computational approach was quite innovative on Judge Hand’s part.

Trump Appointing A Supreme Court Nominee Late in The Election Cycle: Is This Legal?

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The Trump administration has drawn some controversy by appointing a Supreme Court Justice less than 90 days away from the presidential election. The president has declared Saturday he will publicly announce his replacement for longstanding Justice Ruth Bader Ginsberg. Many pundits find this move distaste full for two main reasons.  First off, this decision is being made only eight days after the passing of Justice Ginsberg. The other concern is Trump selecting a justice within months of an election. Public sentiment seems to be leaning towards allowing the winner of the 2020 election to fill this vacancy. The issue with public sentiment is that it seldomly considers the law of the land. Often is fueled by visceral passions more so than reason.

However, I would be derelict in my duties as an armchair commentator if didn’t voice some criticism of the Trump administration. Let’s face it, even if Trump does not get reelected, filling the vacancy with another conservative justice will contribute positively to his presidential legacy. Help retain a strong right-wing influence even if Joe Biden is elected. Making the action of quickly selecting another justice before the election boldly strategic.  Before you dog-pile on trump, just remember this variety of behavior is common among presidents at the end of their term. Prior to Obama leaving office he passed a record-setting number of regulations. Why would any elected official do this? Because they are making a last-ditch effort to implement any agenda focal points that hadn’t been previously enacted. Once you hit the level of President of the United States you are no longer vying for money or power. You are vying for your legacy. Imagine what the paragraphs under your photo in a history textbook will convey. The portrait of a strong leader or that of a half-witted and cowardly buffoon.  

The real question should be is it legal for Trump to appoint a new justice this late in the election cycle? Formally, there isn’t anything legally holding him back. The decision of whether to make this selection is more a matter of adherence to social conventions than being a legal matter. Historically, there was only one other instance of a Supreme Court Justice passing away within 90 days of a presidential election.  This was the passing of Justice Taney 27 days before the election of 1864. Lincoln opted to delay the appointment until reelection. What most people express precedence dictating that the present should wait until the election is over before appointing a new justice is invoking the Thurmond Rule. This informal and dates back to Senator Thurmond blocking LBJ’s appointment of Abe Fortas to chief justice. When Antonin Scalia passed away in February of 2016 republicans cited the Thurmond Rule in their objection to Obama selecting a new Justice in an election year. Clearing there is nothing legally binding that prohibits Trump from making the appointment.

Considering that Trump’s decision is legal, any concerns are more aimed at him not respecting social conventions. If you are attempting to cultivate a positive public image, being so bold and brash might not be the best strategy. Then again we are discussing a president who ascended to his lofty perch by breaking ties with social conventions. Coincidentally, it has been somewhat effective. Then again, this may have been unique to the peculiarities of the 2016 American culture. Seldom does drifting away from a Nash-Equilibrium strategy ensure success.

Tocqueville and The Free Press

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Over the past couple of years, the issue of media bias has become a regular talking point in public discourse. Contrary to popular belief, “fake news” has existed long before the advent of the 2016 election cycle. However, some may cite the work of William Meckling and Michael Jensen and claim that left-wing media has existed since at least the late 1970s (P. 49). One only needs to read Barry Goldwater’s 1988 memoirs to see how media coverage mispresented him during his 1964 presidential campaign. Media bias is not relegated to only left-wing media outlets. Conservative publications also suffer from distorting the facts when reporting the news. Liberal media bias is just more salient since liberals dominate the media. When ideologically loaded editorials start being presented as information this is problematic. Regardless of which political proclivities of the author or correspondent. This is nothing more than clear deception. A snake oil salesman presenting opinions as information. Talk about being sold a false bill of goods!

Alexis De Tocqueville reveals to us in Democracy in America that media bias also existed in the 19th century.

“What the latter look for in newspapers are knowledge and facts; only by altering or distorting these facts a journalist can gain some influence over his views (Tocqueville, Transl. Isaac Kramnick, P. 216-217)”.

Tocqueville didn’t dwell on the biased nature of American journalism. This is because he viewed news publications as not so much as vehicles for disseminating information. Rather, as a form of networking. Individuals who share the same values will invariably read some of the same books and obtain their information from the same sources. While it tempting to blame social media companies for indirectly creating powerful echo chambers through data aggregation to maximize user engagement; this problem predates modern technology. Due to confirmation bias, it is always easier to read publications that reinforce our prior beliefs. Converse with people who already agree with our perspective. Considering this quirk of human nature it isn’t surprising that Americans of the 19th century would levitate towards certain publications. Naturally, journalists of the era would either inject their own opinions into news stories or manipulate the facts to make their article more enticing to specific demographic.

This counterintuitive observation regarding the American press bucks our conventional understanding of the intended purpose of news media. Conventional wisdom would dictate that news is purely designed to inform.  Tocqueville obliterates the myth of a journalistic “golden age” in the mid-20th century. Romanticized images of smoke-filled greenrooms and hardnosed reporting epitomized in the likes of Edward R. Murrow. The notion of the news being fact-driven back in the early years of television is an illusion. Per Democracy in America, even in the 19th century, the line between fact and opinion was blurred. Making Tocqueville’s suggestion that the press represents institutions of political association more than they do sources of information a sizeable argument. Presents a hard reality check for those entranced by the tidy and staid conservatism of the 1950s. The news correspondences may have been more eloquent and professional, but were still imparting bias in their reporting.

If media organizations are nothing more than a collective association of like-minded content producers and readers, how do these coalitions form? This a profoundly difficult question to answer. Did ideology bring the members of the media outlet together? Did the political leanings of the content consumers influence what the organization produces? It is hard to say. However, there is certainly an interconnected relationship between content consumers and producers. Tocqueville expounds upon this co-dependent relationship stating:

“… a vital connection between association and newspapers; the latter creates associations which, in their turn, creates newspapers. If it is a truism that associations must multiply as social conditions become more equal, it is no less certain that the number of newspapers increases as associations proliferate. (P. 602).”

While it may be fair do disagree with Tocqueville’s assertion that political associations are the impetus for the establishment of publications, he does touch upon an important aspect of this dynamic. That is  if one media outlet of a specific political disposition is established more will follow. One just needs to look at the history of network television to see this principle in action.  Back when network television was first established in the 1980s the 24-hour news channels were all left-of-center. Conservative media was essentially relegated to AM/radio talk shows. Then in 1996 the Fox News Channel was launched and provided a conservative presence on network television. The proliferation of conservative media shifted from the dying platform of network cable to the wild frontier of cyberspace. Leading to the development of outlets such as Newsmax, The Blaze, Breitbart, The Daily Caller, The Drudge Report, The Daily Wire, etc. All platforms whose success was propelled by the internet. One can’t help but wonder if Fox News had never been established if these outlets would have ever achieved their present level of success. Especially when you consider The Blaze was founded by former Fox News personality Glenn Beck.

The above example details this relationship of associations and the growth of media outlets for conservative publications, this rule most likely applies to any ideology imaginable. Just think of all the political movements that have spurred by the zealous distribution of literature by pamphleteers.  This ranges from movements as diverse from the American Revolution to the Bolshevik Revolution in Russia. What is the first thing any wide-eyed college kid at a protest does when you approach them? Offer you a pamphlet detailing the rationale for their outrage and indignation. If a movement becomes large enough eventually formal media outlets fixated on the political movement are established.

Polemics such as Thomas Paine’s Common Sense and the Cato Letters may provide the rebel-rousing fodder for revolution. What sustains these political movements and their various supporting publications? It is easy to see that ideas spread through collective association and the proliferation of related literature/media. As enthusiasm, wanes momentum starts to sink. Convictions and commitment among supporters start to dissipate. Making the role of publications much more important.

“ This association can be more or less strictly defined, more or less restricted, more or less numerous but at least  the seed of such an association must exist in men’s minds to ensure the survival of the newspaper (P. 603).”

Tocqueville believes that the conviction conveyed by journalists only continues to live on if supported by the readers. From a business standpoint, this makes sense. If no one is buying your newspapers or magazines your firm will go out of business. In terms of the transmission of ideas, the intertwined nature of content publisher and consumer is much more co-dependent. Yes, the passions of the readers need to remain resolute for the publisher to keep their lights on. But,  the publisher needs to keep putting out engaging content to further perpetuate the movement can keep the movement from getting stale. It may be bold to argue with a thinker as brilliant as Tocqueville, however, let’s say he is only half right on this account. Fostering strong political coalitions requires both the publisher and the reader.

Some observant readers may be wondering, how does this model apply to local newspapers?  After all, they tend to be more provincial in their scope and less politicized.  The less politicized part may be a false assumption, due to the fact the local paper tends to conform to the political leanings of the region. If hypothetically there was a local or regional newspaper that was completely objective it still would provide a form of collective association. The news stories and editorials would focus on local issues.  Presumably, all the readers would have interests in the commentary about new ordinances and municipal taxes. Readership and the employees of the publication bound by a mutually shared self-interest in local affairs. A cohesion that sometimes breaks through partisan barriers and transcendent party affiliation. National and international publications look to sow a connecting ideology among its viewers and readers. The local media outlets unite its staff and audience with universal concerns about daily affairs.