Many years ago, I knew many people involved in the animal rights movement. I had been rescuing stray animals and was friends with some wildlife rehabilitators and so met increasing numbers of animal rights activists. As with any "movement" they were a mixed bag, some grand standers who liked to hear themselves talk or who wanted the fame they could gain in this little group, others who sincerely believed in their cause, and people who held beliefs everywhere in between. One thing that would surprise many of my readers is the number who were not on the extreme political left, including some who were either entirely apolitical or held beliefs I would characterize as libertarian or even conservative¹. Of course, they were united in their belief that the state should provide some protection against animal cruelty, which I do not see as a conservative position, but on the other hand, if we will accept the censorship of many social conservatives², or the extreme interventionism of many "paleo-cons" as "conservative"³, then this one animal rights belief represents much less intrusive government action than many supposedly right wing ideas^4,5.

The reason I mention all of this is certainly not to burnish my credentials, not with my conservative readership. No, I mention it because of a conversation I often had with the more earnest activists, and the lesson it has to teach us.

Animal rights activists, among other traits, are, like most activists, rather "bi-polar", every setback is a sign of oncoming doom, the worst event ever, and every tiny victory is the sign of coming total success. Each bit of  news is taken to absurd extremes. Partly I imagine it is because they tend, as a group, to be rather young, and youth are given to such exaggeration⁶. But beyond that, I think it is because they have so little influence over our society. With the laws having changed very little, it is easy to see the tiniest change as hugely influential, as even a minute success could easily double the improvements of the past decade or more. But, not only successes are given this treatment. If even a miniscule success is a doubling of their triumphs, then even the slightest setback is a crushing defeat which can wipe out all progress, and so, for good or ill, every change is seen in superlative terms only.

All of which makes it hard sometimes to talk to the more earnest believers, as they are hard to reach with reasonable estimates of their prospects. But a few are, and it was to those that I often offered a very simple piece of advice.

Politicians who are open to animal rights activists -- don't worry, I will get to my advice very soon, I won't put it off forever -- any politicians who are willing to go out on a limb for these activists, tend to fall into two categories. Either they are themselves true believers, or they come from very left-leaning districts, where supporting animal rights causes is not the political liability it would be with even moderately left wing constituencies. That being the case, they tend to propose fairly radical animal protection bills when given the chance, raising the hopes of activists, which then fail as such animal rights friendly politicians are normally lousy at horse trading⁷, and certainly never form a majority, or even significant minority.

What is interesting is the reaction of animal rights activists to the futile proposal of one of these laws. Seeing a real live politician attempting to pass some animal rights bill or other, they become quite excited, imagining that were the bill passed it would mark the beginning of a wave of such bills, the first wave in a torrent of animal rights legislation.

Which finally brings me to my advice. You see, when the animal rights activists would gather, sometimes, especially when such bills were awaiting hearings or votes, they would talk about the many legislative measures they dreamed would result in a world of their dreams. To which I would inevitably point out that legislation alone is futile. Even were the US congress to pass the most stringent animal protective measures imaginable, it would do nothing in our current environment.

As this viewpoint almost always met with confused reactions, I became used to explaining, and so I will do so again. The best way to explain is to imagine the fate of a law in 1866, in a southern state, creating legal protections for freed slaves, legally allowing them to intermarry with whites, to vote, to hold public office and so on. In fact, we need not imagine, as at least some of those protections were put into law following the Civil War, and with the results I would have expected. That is none. At least none until troops were sent to the south to ensure their enforcement.

And that is the reality of trying to change society through laws⁸. Basic criminal laws, such as the prohibitions upon murder or theft, are generally supported by the public, and so there is no issue with their enforcement. But when a law does not enjoy public support, then problems arise⁹. If a law extends protection the public does not support, be it to freed slaves or animals, then most likely violators will simply never be arrested, as no one will ever complain about violations, or, if some activists type does, no police will bother to arrest. And even if they are arrested, most likely those charged will never make it past the grand jury, if the public feels so strongly about the laws in question.Even in a worst case scenario, if the case goes to trial, with a court united in their dislike for the law, with judges quietly favoring acquittal, prosecutors putting in  the bare minimum of effort, witnesses united in their opposition to the law, and, finally, a  jury  disinclined to convict, what is the only possible outcome?

And that is what I would explain to the animal rights activists, passing laws is fine, but it is pointless without changing the underlying culture⁹. And, to some degree, once you have changed culture, changing the law is irrelevant.Or at least is no longer an urgent matter, as the social pressures alone will encourage compliance in many even without laws. ("Shame and Behavior", "Our Rude Behavior", "Social Controls", "In Defense of Standards", "Addenda to "In Defense of Standards"", "An Immature Society", "Pushing the Envelope") In other words, changing laws is pointless until you change society itself, and once you change society, the laws need only be of the most general, broad sort¹⁰.

However, there is also another lesson here, and one that is more positive, a lesson about the proper function of government.

When I wrote above about laws protecting freed slaves being ignored, I am sure many were offended, imagining that such a refusal to enforce the law was a horrible dereliction of duty. And understandably so, as refusing to enforce laws protecting real rights on the basis of race is wrong¹¹, but if we look at the question in a more general sense, look at the refusal of the executive to act in a general sense, in fact it is a proper element of governmental action, though one about which there is quite some confusion, partly because various political groups, having been thwarted by its application, have decided to call it an improper use of power. (On both sides of the aisle¹².)

I discussed this topic before, in my posts "George Will Gets It Wrong" and "Somehow The Media Missed This", but it is wroth examining again. For those who wish to ensure the protection of individual rights, there are two concerns. First, that individuals are protected against the action of internal criminals and external nations, that is that they be protected against force, theft and fraud by strangers. Second, that they are protected against unwarranted expansion of state powers¹³.

The first of these is normally no problem, as the executive branch, and juries, tend to see criminals as common threats, and so have no problem convicting proven criminals. In a few cases, misplaced ethnic solidarity ("How to Become a Victim of Crime")or fear of government ("Third Party Problems",  "Some Libertarian Analogies", "Why I am a Republican", "Deadly Cynicism", "The Libertarian Left", "Liquid Ice? Female Father? That's Nothing!") can short circuit this, but dealing with such issues is outside the scope of this essay. My main point is that, for the most part, there is little problem giving the government sufficient power to defend against threats to individual rights. And, in the worst case scenario, as government is only deputized, leaving individuals the ability to protect their own rights ("A Right Is A Right", "Free Speech, Absolute Rights and the Absurdity of "Balancing Tests"", "Asking the Wrong Question"), an individual still has recourse to defending himself.

On the other hand, the second half is much more difficult to ensure. The government has a strong tendency to grow, as even the most well meaning government officials tend to imagine that the easiest way to solve a problem is to grant their office more power. ("Grow or Die, The Inevitable Expansion of Everything ", "With Good Intentions ", "Inescapable Logic", "Recipe For Disaster", "The Endless Cycle of Intervention",  "The Cycle of Compassion", "Doing Something") The easiest solution is to make sure citizens have a proper understanding of the role of government ("The Single Greatest Weakness"), but it is unrealistic to imagine at any time that all citizens would understand the role of government, or, if they did, would agree on what is and is not an unwarranted extension of power. And so, in addition to the "checks and balances" high school civics has made all too familiar ("It Is So Simple"), and our role as electors, through which we can choose to elect those we feel the best custodians of government power, there is one other protection woven into our governmental system.

The ability to refuse to act.

Some might think that a member of the executive branch refusing to carry out the law would be a dereliction of duty, or a juror refusing to convict someone who clearly violated the law would be a breach of trust, but in truth, there is nothing that compels us to carry out the will of the state. The state, properly conceived, is our agent¹⁴, it exists at our pleasure, it is deputized to act on our behalf, having not rights other than those we already possess. It is our creation, and as such cannot compel us to act¹⁵. Which is why I would argue we have the perfect right to ail to act, even when in supposed "positions of trust", with one noteworthy exception, which I shall mention shortly.

The basic premise is simple. We grant the government the power to act as our deputy. While we can still defend our rights, we also employ the state to assist in that protection. ("A Right Is A Right", "My Vision of Government Part II", "Asking the Wrong Question") We can protect ourselves, but the state can help to protect us. However, in hiring the state, we also require that it not do anything to violate our rights itself. Yes, if we violate the rights of another, the state can then act on the behalf of that other and act against us as we would have it act against one who violated our rights, but that is simply the symmetry of treatment required of a government. ("A Rational Approach to Punishment", "Symmetry and Asymmetry in Government") However, the state cannot go beyond that and act in a way that would violate our rights, or the rights of another. It has a purely protective function.

To this end, we built in endless protections, supreme court review, presidential veto power, impeachment, jury trials, and on and on. But all of those can sometimes fail, and so there remains one final check, and that is the individual's right to refuse to act. Let me ask a simple question to demonstrate this power. Why can the president, or the governor of a state, grant a pardon? Why does he have this power, and why is it subject to review by no one? Because punishment is an executive power, and it is always within the discretion of the executive to refuse to act, to stop the government by not carrying out its laws. And that is the same power I discuss here. We are familiar with such actions being explicit, such as the executive granting pardons, refusing to carry out laws, or simply adding a "signing statement" of the sort that so enraged the left when done by Bush. However, there is nothing to stop implicit actions as well, such as juries refusing to return guilty verdicts for laws they find unjust, or simple citizens refusing to report crimes when they consider the action not criminal¹⁶. It is a list which is almost impossible to draw up, as the number of possibilities is almost infinite. Basically, anything that the state would ask a citizen to do offers the opportunity for a citizen to refuse.

Before proceeding, let me point out two exceptions to the statement above. First, there is the situation where a citizen has been hired and paid specifically to take certain actions on behalf of the state, be it as a prison guard or a meter maid. In those cases, the citizen is required to act, and is not in a position in which he or she has the discretion to act or not act. In those cases there exists a contractual obligation to perform certain actions, and there also exists civil and criminal liability should inaction cause harm to come to another. The citizen's right to choose whether to act or not ends where one has assumed an obligation. The president may pardon, or a police officer not charge, as his position grants him discretion, and only to the degree he has that discretion. Once he has an obligation, such as a prison guard, or a police officer enforcing a valid arrest warrant, he no longer has discretion, as his position obligates him to act.

The second situation is similar tot he first, but a little more vague, and that is where refusing to act would bring about harm, and one's position has placed upon one a duty to act. The old civil law example comes to mind. No one has any duty to save a drowning man, and ignoring his cries creates no liability, but if you put out a sign saying you are a lifeguard and will protect swimmers, that all changes, and you are liable if you simply fail to act. Similarly, when I say the executive has the ability to refuse to act, as do private citizens, I assume that doing so will not directly bring about harm to anyone whom the individual is charged with protecting¹⁷. Obviously, in such a case, there is a requirement to act, and failing to do so is not an option, unless one is willing to accept the liability for doing so.

Excluding those specific circumstances, however, there is no limit on a citizen's right to ignore the state, to refuse to act. Nor should there be. As I said earlier, the state holds all the cards, has all the advantages¹⁸, everything in the apparatus of government pushes toward greater and greater government power, an ever expanding scope for government. And so we need every tool at our disposal to rein in the government. And refusing to act is a great one. If citizens can simply fail to carry out its orders, that goes a long way toward robbing it of its powers. When we can choose whether or not to carry out the wishes of the state, then we can no longer fall back on "just following orders" defenses when performing indefensible acts on the state's behalf. And that means that many more might be willing to stand up and refuse to act, if they know that the guilt for the actions ordered by the state will be shared by them as well as those giving the orders. Or, if that does not happen, at least if people come to accept that they can simply say no to the state, perhaps that general principle will, on its own, make them slightly less willing to surrender their freedom to the state. ("Defending Freedom?", "Why Freedom Is Essential ", "A New Look At Intervention", "Selling Yourself Cheap", "Three Types of Supporters of Big Government")

But this also shows one other lesson that we all too often ignore. Those who spend their time debating politics, those who take political questions seriously, have a bad habit, and that is that they tend to become "policy wonks", that is, they tend to see political questions as, well, "political questions". They see them in terms of laws, in terms of popularity polls, in terms of political gains and losses, in electoral advantages, in terms of impact on the bureaucracy and on the legislature and so on. What they fail to consider is that law and government do not exist independent of the citizens, and that both, when they become too far divorced from the beliefs of the people, tend to collapse. A good example would be the more extreme left of the Carter administration, which managed to marginalize itself by being almost incomprehensible to the "man in the street", or perhaps the FDR "brain trust", which drifted far enough outside the beliefs of the mainstream that it weakened FDR's administration, despite both a depression and a looming war, events which usually strengthen a president's support, or did in that era, if not now. Or perhaps some of the more extreme positions advanced by the class of 94, which, while positions with which I agree, were positions for which the American people had not been properly prepared. In every case, positions were adopted for which people were unprepared, and in the end, those supporting them were pushed aside.
 
It is a lesson we conservatives need to learn, even more than the left. The left, for better or worse, has a built in constituency in the northeast and west coast, as well as college town and many "machine politics" cities. In addition, they have friends and allies in the media, and a host of academic "experts" who can often persuade middle America any policy, even the most unrealistic, is worth trying. We on the right lack these assets. We have a constituency, but it is not as monolithic, and, given the range of conservative positions, not as reliable as that on the left. But even worse, we lack the media and academic support.

To top it all off, we tend to get overconfident. Having convinced ourselves that middle America "leans right" we often forget we still need to convince them of the need for any given policy, to show them why it must be done. Instead, we rely on this conservative trend to make the need for a policy "obvious; and are often unpleasantly surprised when popular support fails to materialize, or worse, shows up on the left. We need to learn the lesson I tried to teach those animal rights activists, you need to change minds before changing laws. We could afford to lose congress for a decade, if we spent that decade persuading the US of the need for conservative policies. Just think of the horrible blend of liberals and country club "conservatives" that ran the US from 1960 to 1980. Yet, during that time, the Goldwater revolution¹⁹ was silently changing hearts and minds in the US, especially in conservative circles, paving the way for the Reagan presidency. And in those 8 years, we changed the US more than any had since 1932. We still feel the impact of Reagan today, from the left's need to "run right" to win elections, to the lip service paid to balanced budgets and a host of other changes. Today's America would have been unforeseeable in 1979, but here it is. And all because minds were changed allowing Reagan to make true conservative change.

We need to learn that lesson, and spend more time changing the minds of our fellows, even if it sometimes comes at the expense of allowing the opposition a few more "wins" in terms of passing laws²⁰.

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1. Perhaps I am less surprised than most, as my own beliefs do not fit with the traditional notion of a conservative. While I am not an animal rights believer, I am a vegetarian, which some conservatives seem to imagine is a sign of extreme left wing beliefs. I am also Jewish, which others believe is somehow indicative of liberal beliefs as well. (I can attest that nothing in the Torah or Talmud mandates placing an "Obama '12" sticker on your car.)  My beliefs on drug decriminalization ("Kelo, Home Schooling and Drug Laws - Inconsistent Theories of "Social Costs"", "Drug Legalization", ""Legalization"", "Standing By My Principles", "For Your Own Good", "Medical Regulations", "Medical Regulation II", "The Drug Addiciton Excuse", "The State And Morality", "Shameless Self-Promotion", "Unintended Consequences I", "Unintended Consequences II", "Who Does It Harm?", "It Doesn't Matter to ME...", "Exaggeration and the Law"), while held by some conservatives, also tend to be seen as signs of liberalism by some conservatives. And I am sure if I went through the rest of my beliefs, large and small, I would find quite a few others that are not normally associated with conservatism (my position on gay marriage, for example, tends to draw some ire -- see "Solving the Gay Marriage Debate", "Updating an Old Post", "Revisiting Gay Marriage", "Some Additional Thoughts on Gay Marriage", "Gay Rights or Lawyer Pay Day?", "Unlikely Agreement" and "Government Tries to Solve a Problem It Created, and Manages to Create New Problems in the Process" -- though I think them a perfect example of dividing political and social questions, leaving only the former to the state, while using persuasion and societal pressure for the latter -- cf  ""...Then Who Would Do it?" ", "Collective Action and Government", "An Examination of the Economics and Sociology of Government Spending ", "Shame and Behavior", "Our Rude Behavior", "Social Controls" .). So maybe I am just more open to the idea that one can hold various beliefs about how to handle his private affairs while still espousing a conservative political and social philosophy.

2. See "The State and Morality", "A Bit More Explanation", "Culture and Government", "Reticent To Adopt a Title", "A Possible Designation", "The Right Identity" and "Three Approaches to Social Conservatism".

3. See "Misplaced Blame and A Power Play", "Remember I Predicted It", "Beware Populist Deception", Please Stop Calling Them Conservatives", "A Passing Thought", "The Political Spectrum", "The Best Historical Example", "Rethinking the Scopes Trial", "Many Types of Conservatives", "Term in Search of a Definition", "I'm Sorry, Mr. Buchanan", "Buchanan and Obama", "A Question for "Paleo-Conservatives"", "Right on One Issue is not Enough", "I Am a Conservative, But..." and "Pat Buchanan Becomes Putin's Lord Haw Haw".

4. Of course, I have argued it is a mistake to claim either of those positions are conservative.(See "The Political Spectrum", "Many Types of Conservatives", Please Stop Calling Them Conservatives", "A True Conservative Platform".) But, if we are accepting a "big tent" view of conservatism, I would argue there is no justification to rejecting someone as a conservative if his beliefs are conservative except for the addition of a belief in animal rights.

5 Personally, I believe the cause of animal rights is incorrect, as the purpose of the state is to protect the rights of those rational beings which make up the state. Given my minimalist view of the role of the state, I would hardly be able to argue for expanding state power to protect dubious rights. On the other hand, I have no objection to individuals or private groups using social forces, persuasion, argument and other pressures, to encourage individuals to refrain from what they believe to be needlessly cruel treatment of animals. But that will be discussed in a later post.

6. Of course, our era in general is prone to such exaggerated reactions to current events. See "All Life in a Day, or, How Our Mistaken View of History Distorts Our Understanding of Events". We see it especially in politics, where the left could claim Bush was destroying all our freedoms, or the right could claim Obama will lead us into dictatorship next month. There may be truth to these claims, there is certainly some validity to most such exaggerations, but that doe snot make them valid evaluations of current circumstances. But out excessive reaction to the political opposition is a topic which I have addressed elsewhere -- ""Cigarettes, Sudan and Abortion", "Katrina and BP", "Excessive Claims", "In Defense of Civil Debate", "The Angry Right and Conservatives", "Political Polarization and Divisive Politics" -- and likely will again.

7. No joke intended, though it would be easy enough to blame their beliefs for a lack of experience in that field.

8. To be more precise, this is the problems attendant upon trying to change public behavior through laws. This is a difficult task, but easier than the other futile act, that being trying to change public beliefs through legislation, as I discussed in "In Defense of Discrimination", "A Statute of Limitations for Race", "How to Handle Idiots", "Back Again", "Best of the Web gets It Very, Very Wrong", "Utopianism and Disaster", "The Danger Inherent in Banning "Bad Ideas"", "The Threat of Perfection", "The Inherent Disappointment of Authoritarianism", "Musings on Discrimination" and "Private Versus Public Racism". (Similar ideas were also discussed in "The Problem of Pornography", "Free Speech, Absolute Rights and the Absurdity of "Balancing Tests"" and "Asking the Wrong Question".) The two are related, but also distinct. For example, if the public at large sufficiently supports a given position, it may enforce a law well enough to change public behavior, at least for the most part, but no amount of public support will change beliefs.

9. I have made a similar argument to conservatives as well. ("The Single Greatest Weakness", "Don't Blame the Politicians", "The Difficulty of Principle", "Damn the Torpedoes!", "You Lose When You Think You Win") Until we manage to convince society of the proper role of government, until we establish a consistent understanding that government is not the solution to every problem ("Doing Something", "What We Deserve"), we can pass all the conservative legislation we want, it will be reversed quickly by people trying to solve yet another problem using government. In fact, even if conservatives "win", if they do not properly understand the minimal role of government, we will end up with a "conservative" big government, using its power to enforce paleo-con or social conservative agendas, but just as big and destructive as any liberal big government.

10. To explain, we do not have endless laws minutely defining murder, we have one, or maybe a handful, of statutes covering killing. Likewise, we do not infinitely subdivide the types of theft (though the common law, having evolved over centuries, did subdivide theft a bit excessively, but most states have since reduced that confusion through statute). With real crimes, understood as such by the populace, we can get away with a few, general, laws. Only when the government is exercising excessive power, and power not understood by citizens, does it need to define a massive number of ever smaller crimes, to ensure public compliance with its wishes.

11. I know some having read my many posts on laws against discrimination ("In Defense of Discrimination", "A Statute of Limitations for Race", "How to Handle Idiots", "Back Again", "Best of the Web gets It Very, Very Wrong", "Utopianism and Disaster", "The Danger Inherent in Banning "Bad Ideas"", "The Threat of Perfection", "The Inherent Disappointment of Authoritarianism", "Musings on Discrimination") will imagine this is a n inconsistent position, but I would argue otherwise. In past posts, I have argued exclusively against the government using its power to prevent private discrimination. ("Private Versus Public Racism") That is a crucial distinction. For the most part, post-Civil War legislation was aimed at preventing the state from imposing legal disabilities based on race. Yes, there were disputes about what constituted a disability, and would be for a century (eg. "separate but equal" questions), but in general, these efforts were intended to keep the state from removing real legal disabilities (right to vote, right to property -- both own and transfer, etc.) There were some laws which entered into more nebulous areas, but in general, these laws were legitimate efforts to end legal discrimination. (We will, for the moment, ignore the question of whether it is the role of the federal government to remedy shortcomings of state laws. That is a separate matter.) So those laws are quite different from the ones about which I normal complain.

12. The examples which come to mind on either end of the political spectrum are, upsetting the liberals, the "signing statements" of the Bush administration, declaring explicitly how he would enforce a given statute (see "George Will Gets It Wrong" and "Somehow The Media Missed This" for earlier comments on these), and on the right, the calls by activists for black jurors to use "jury nullification" to free black defendants. But, in both cases, it seems clear the complaint is more with the results than the method, as the left would have no problem with a liberal president using such statements to thwart conservative statutes. Nor would most conservatives object to jurors who used nullification to free those who acted against big government.

13. The libertarian movement often seems to forget the first, and focuses far too much on the second, even to the point of neglecting the first. When extreme isolationists go too far in limiting military action ("Rational National Defense", "Rights Versus Laws", "Last Word on Defense", "Foreign Policy", "My (Informal) Nobel Peace Prize Nomination", "Inconsistencies in Historical Perspectives", "What Happened?"), they run the risk of creating a government which, while not threatening individual liberty, also fails to protect it, which makes it a pointless government, no better than anarchy. ("The Problem With Ron Paul", "What Happened?", "Correlation vs. Causation") Similarly, when they go too far in fearing the police and empowering criminals, they run the same risk in the domestic arena. ("Faulty Logic", "Mumia, the DaVinci Code, Full Body Scans, and Loose Change - How Conspiracy Theories Arise") In general, what we need is not to fear government, but to properly understand its role and limit it to those functions. ("The State and Morality", "My Vision of Government", "My Vision of Government Part II", "Prelude", "Tools", "An Unappreciated Truth", "Collective Action and Government ")

14. In some ways this mirrors a situation I have discussed a few times before ("Standing By My Principles", "Medical Regulations", "Medical Regulation II"), our relationship with doctors. It began when they were given exclusive control over access to pharmaceuticals, but grew even worse when insurers began requiring referrals, hospitals began requiring orders, and the number of facilities which would accept any given insurance grew smaller. Over time, these factors led from doctors being our agents, hired by us to give advice, which we would decide to follow or not, at our discretion, to being our masters, gatekeepers to medicine and medical procedures, as well as nannies, hectoring us about our habits, questioning us about our lives, even handing our questionnaires about gun ownership, domestic violence and seat belt use. Of course, having been granted only limited quasi-governmental powers, they still can be put in their place by one willing to suffer through some headaches, but I worry with the rise of "universal healthcare", this small remnant of the proper employer-employee relationship will disappear. (I admit, I may see this in a more urgent way than most, as I depend on pain medication to function, and doctors have the ability to deny me the drugs I need. Worse, they can label me a "drug seeker" and make my life almost unlivable. And before anyone scoffs, I have had my medicine discontinued [for taking it at the rate prescribed, admittedly at the maximum, but that was because the maximum did not deaden the pain], and, while going through withdrawal, and suffering excruciating pain from both an acute attack of porphyria [undiagnosed at the time] and neuropathy in all my extremities [also somehow overlooked by my neurologist, despite skin changes and pain], had a doctor throw me out of his office, calling me a "drug seeker" to my face. And I was. But no one hates diabetics for being "insulin seekers" or berates migraine sufferers for being "medicine seekers", but those of us who suffer from pain are under constant inquisition. I have to take urine tests every 2-3 months, can not get a prescription for longer than a month, and must agree to always use the same pharmacy, all just to get a medication.[And my pain doctor is considered extremely liberal in policy matters, so imagine what the more strict ones are like.]  So maybe I am in an unusual situation, but if it can happen to me, do not doubt it could eventually apply to more common conditions as well.) (Sorry for the parenthetical rant, but I want to make it clear I am not making this up, or engaging in hyperbole, I have first hand experience of the amount of power circumstances can give doctors over one's life. It was bad enough I considered many times obtaining illegal opiates because doctors would not prescribe enough medication to even lessen the pain. I didn't, but I considered it many, many times. But I am writing here of the power we give doctors, not the absurd way drug laws make some situations worse, so I will save all this for another time.)

15. Obviously, this does not work with our modern, expansive government, which relies upon being able to compel obedience, but that is precisely what is wrong with out present state, the need to force us into actions we do not desire to undertake. Or, to put it more clearly, but in somewhat more controversial terms, we have gone from being masters of the state to being its slaves. See my essays on this topic "Negative and Positive Rights",  "How the Government Corrupts Relationships", "Something We Forget", "We're From the Government and We're Here To Help You" and "The Fifth Wheel".

16. This is part of the reason I consider the crime "misprison of a felony" to be such an unjust charge. Were our system entirely concerned with prosecuting violations of individual rights, it may be arguable that it is a proper charge, but even then I have problems with the state demanding action on the part of a citizen. I should hope citizens would want to report murderers, robbers and thieves, but it still seems wrong to prosecute them for failing to do so. Fortunately, this charge fell into disfavor, though for reasons with which I do not agree, so it is rarely used. But there are also a number of "accessory" and "accomplice" charges which still seem to accomplish the same thing, and with which I am also in disagreement. To my mind, reporting of crime is a choice, not an obligation. As far as compelling testimony and other requirements of positive action on behalf of citizens, that is a topic I have been meaning to address for some time, so you will just have to wait until I finally do.

17. This is quite muddy, as it raises questions about how immediate the risk must be. If a terrorist states he will continue to blow up buildings if freed, and a governor pardons him, is the governor liable should a bomb go off? It seems clearly foreseeable, and it seems the executive has some obligation to protect those whom he serves, but is this sort of obligation enough like a lifeguard situation? And is the harm direct and immediate enough? Probably not, at least from a legal position, but with liability growing ever more expansive, it is a an interesting question. (Not that I support present expansive liability -- see "Liability Law and Cost-Benefit Analysis" .)

18. Perhaps the best example would be to look at self defense. In reality, the state is but our deputy. It is charged with defending us, but we also retain the right to self defense. However, as we have seen over and over, the state quite easily assumes all responsibility for this, legally disarming us. At first, it is by corrupting sensible rules. For example, legally it makes sense to investigate every violent act, and then exonerate those who were acting in self defense. However, it is not that difficult for the state to slowly make it more difficult to prove self-defense, making it less likely citizens will defend themselves. And, once this begins, citizens start to have fewer objections to the state imposing more and more restrictions upon weapons, or the use of force, until, over time, citizens have been legally disarmed and effectively denied the power of self defense.

19. I do not mean to give Goldwater all the credit. There was also much work done by a host of others, the growth of the libertarians, the spread of Objectivists and other kindred groups, William F. Buckley's very vocal opposition to political trends of the day, and many, many others. However, Goldwater serves as a very prominent symbol of the sort of changes I am describing, and so made a convenient shorthand.

20. I do not propose giving up on laws, or putting all our efforts into social action and ignore politics. Instead, I am arguing that we have simply ignored changing people's minds, and we would be better off if, when forced to choose between the two, we selected changing minds over changing laws.

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POSTSCRIPT

Having completed this post, I realized I raised about a dozen interesting topics, both in asides throughout the text and in the footnotes. In addition, the points I made in the post itself are controversial enough I feel they deserve a bit more technical examination. However, I have a host of promised essays waiting to be written, as well as two, or maybe three -- depending on the final length of my comprehensive examination of bureaucracy -- serialized works ("Liberalism, Its Origins and Consequences", being the most nearly complete) waiting for my attention. However, once I finish the writing I promised to complete in "All In One Place", I will be returning to this post and looking into the many interesting ideas I raised here.

UPDATE (2011/05/25): A comment asked about the president's difference from a contracted employee (among other issues). I will respond to the rest of the comment shortly, when I have more time, but regarding contracted employees, I realized my description was quite unclear. When discussing contracted employees, I had in mind those charged with executive-like duties, but whose positions did not involve the decision to arrest. For example, prison guards. Though charged with keeping others imprisoned, which is a component of the executive function, they are not charged with deciding whether or not to arrest, prosecute or confine. It was that manner of position I had in mind. The positions with discretion are those who are given the responsibility to decide whether or not to charge, arrest or confine,. (The question of the military is an entirely different matter, though the fact that soldiers are required to refuse to obey illegal orders suggests they are much closer to executive office holders than hired staff, though military practices make the refusal to carry out orders a different matter in the military than in other executive positions.) As I said in the Postscript, this essay raised many questions that deserve more thorough treatment, and so I may revisit it soon. (Regarding one final point, though the constitution charges the president with enforcing the laws, he clearly has the ability to do the opposite, as embodied in his ability to pardon and grant clemency. If he can remove a conviction after the fact, thus invalidating the combined acts of the legislature and judiciary, why would he be unable to ignore the legislature alone? But, as I said, it deserves more time than I have tonight, and so I will return with another, more systematic analysis, in the very near future.)

Update 2 (2011/05/24): It is unrelated to this post's topic, but writing about the executive has reminded me of an issue which deserve some analysis as well. That is the growth of purely executive bodies, which make up the bulk of the bureaucracy. Though empowered by acts of the legislature, these bodies incorporate legislative and executive powers within the executive, and some (eg. the IRS) even embody their own judiciary, or quasi-judiciary, powers. It is not, strictly speaking, a violation of the constitution, as the legislature signed off on the creation of each such body, but while technically legal, it is interesting to consider how the growth of such purely executive bodies, fulfilling the roles of all three branches, change the nature of our government. (Of course, given the size and scope of our expansive state, it was inevitable such bureaucracy would come into being, and as I described in "The Wrong Solution to Bureaucracy", forcing the legislature to rubber stamp all regulatory actions is hardly a solution, but inevitable or not, the creation of such entities has had an effect on the functioning of the government, even altered how we conceive of government [and certainly altered the separation of powers to one degree or another], and it deserves to be examined in some detail. If much can be made of judicial activism and the assumption of quasi-legislative powers by the judiciary [and sometimes even executive functions], then the assumption of legislative and judiciary functions by the executive deserves a look as well.)