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5

Involuntary Servitude

IF THERE IS ANYTHING a libertarian must be squarely and totally against, it is involuntary servitude—forced labor—an act which denies the most elemental right of self-ownership. "Liberty" and "slavery" have ever been recognized to be polar opposites. The libertarian, therefore, is totally opposed to slavery.1 An academic question nowadays, one might object? But is it really? For what is slavery but (a) forcing people to work at tasks the slavemaster wishes, and (b) paying them either pure subsistence or, at any rate, less than the slave would have accepted voluntarily. In sort, forced labor at below free-market wages.

Thus, are we really free of "slavery," of involuntary servitude in present-day America? Is the prohibition against involuntary servitude of the Thirteenth Amendment really being obeyed?2

Conscription

Surely, for one example, there can be no more blatant case of involuntary servitude than our entire system of conscription. Every youth is forced to register with the selective service system when he turns eighteen. He is compelled to carry his draft card at all times, and, at whatever time the federal government deems fit, he is seized by the authorities and inducted into the armed forces. There his body and will are no longer his own; he is subject to the dictates of the government; and he can be forced to kill and to place his own life in jeopardy if the authorities so decree. What else is involuntary servitude if not the draft?

The utilitarian aspect permeates the argument for the conscription system. Thus the government uses the argument: Who will defend us against foreign attack if we do not employ coercion and conscript our defenders? There are several rebuttals for a libertarian to make to this line of reasoning. In the first place, if you and I and our next-door neighbor think that we need defending, we have no moral right to use coercion—the bayonet or the revolver—to force someone else to defend us. This act of conscripting is just as much a deed of unjustifiable aggression—of kidnapping and possibly murder—as the alleged aggression we are trying to guard ourselves against in the first place. If we add that the draftees owe their bodies and their lives, if necessary, to "society" or to "their country," then we must retort: Who is this "society" or this "country" that is being used as a talisman to justify enslavement? It is simply all individuals in the territorial area except the youths being conscripted. "Society" and "country" are in this case mythical abstractions that are being used to cloak the naked use of coercion to promote the interests of specific individuals.

Secondly, to move to the utilitarian plane, why is it considered necessary to conscript defenders? No one is conscripted on the free market, yet on that market people obtain, through voluntary purchase and sale, every conceivable manner of goods and services, even the most necessary ones. On the market, people can and do obtain food, shelter, clothing, medical care, etc. Why can't they hire defenders as well? Indeed, there are plenty of people being hired every day to perform dangerous services: forest firefighters, rangers, test pilots, and... police and private guards and watchmen. Why can't soldiers be hired in the same way?

Or, to put it another way, the government employs countless thousands of people for all sorts of services, from truck drivers to scientists to typists; how is it that none of these people have to be conscripted? Why is there no "shortage" of these occupations to supposedly force the government to resort to compulsion to obtain them? To go a step further, even within the army there is no "shortage" of officers and no need to draft them; no one conscripts generals or admirals. The answer to these questions is simple: there is no shortage of government typists because the government goes out on the market and hires them at the market wage; there is no shortage of generals because they are paid handsomely, in salaries, perquisites, and pensions. There is a shortage of buck privates because their pay is—or was, until very recently— abysmally below the market wage. For years, even including the monetary value of the free food, shelter, and other services supplied the GIs, the earnings of the buck private were something like one-half the salary he could have earned in civilian life. Is it any wonder that there has been a chronic shortage of enlistees? For years it has been known that the way to induce people to volunteer for hazardous jobs is to pay them extra as a compensation. But the government has been paying the men half of what they could earn in private life.3

There is also the special disgrace of the doctors' draft, in which physicians are subject to the draft at ages far beyond anyone else. Are doctors, then, to be penalized for their entry into the profession of medicine? What is the moral justification for onerous burdens placed on this particular, and vitally important, profession? Is this the way to cure the shortage of doctors—to put every man on notice that if he becomes a physician he will be sure to be drafted, and at a specially late age? Once again, the armed forces' need for doctors could easily be satisfied if the government were willing to pay physicians the market salary, plus enough to compensate them for the hazardous labor. If the government wishes to hire nuclear physicists or "think-tank" strategists, it finds ways of doing so at extremely handsome salaries. Are doctors lower forms of humanity?

The Army

While conscription into the armed forces is a blatant and aggravated form of involuntary servitude, there is another, far more subtle and therefore less detectable form: the structure of the army itself. Consider this: in what other occupation in the country are there severe penalties, including prison and in some cases execution, for "desertion," i.e., for quitting the particular employment? If someone quits General Motors, is he shot at sunrise?

It might be objected that, in the case of enlistees, the soldier or officer has voluntarily agreed to serve for a certain term, and he is therefore obligated to continue in service for that term of years. But the whole concept of "term of service" is part of the problem. Suppose, for example, that an engineer signs a contract with ARAMCO to serve for three years in Saudi Arabia. After a few months he decides that the life is not for him and he quits. This may well be a moral default on his part—a breach of moral obligation. But is it a legally enforceable obligation? In short, can he or should he be forced by the monopoly of weaponry of government to keep working for the remainder of his term? If so, that would be forced labor and enslavement. For while it is true that he made a promise of future work, his body continues, in a free society, to be owned by himself alone. In practice and in libertarian theory as well, then, the engineer might be morally criticized for the breach, he may be blacklisted by other oil firms, he may be forced to return any advance pay tendered to him by the company, but he will not be enslaved to ARAMCO for the three-year period.

But if this is true of ARAMCO, or of any other occupation or job in private life, why should it be different in the army? If a man signs up for seven years and then quits, he should be allowed to leave. He will lose pension rights, he will be morally criticized, he may be blacklisted from similar occupations, but he cannot, as a self-owner, be enslaved against his will.

It may be protested that the armed forces is a peculiarly important occupation that needs this sort of coercive sanction that other jobs do not have. Setting aside the importance of such occupations as medicine, agriculture and transportation that need not resort to such methods, let us consider a comparable defense occupation in civilian life—the police. Surely the police perform an equally, and perhaps more vital, service—and yet every year people join the police and quit the force, and there is no coercive attempt to bind their labor through years of enlistment. In addition to demanding the end of conscription, then, the libertarian also proposes to do away with the entire concept of a term of enlistment and the practice of slavery this implies. Let the armed forces operate in ways similar to police, firemen, rangers, private guards, etc.—free of the blight and the moral crime of involuntary servitude.

But there is more to be said about the army as an institution, even if it were made completely voluntary. Americans have almost totally forgotten one of the noblest and strongest elements in the original American heritage: determined opposition to the entire institution of a "standing army." A government that has a permanent standing army at its disposal will always be tempted to use it, and to use it in an aggressive, interventionist, and warlike manner. While foreign policy will be dealt with below, it is clear that a permanent army is a standing temptation to the State to enlarge its power, to push around other people as well as other countries, and to dominate the internal life of the nation. The original aim of the Jeffersonian movement—a largely libertarian factor in American political life—was to abolish the standing army and navy altogether. The original American principle was that if the nation was attacked, then the citizens would hasten to join to repell the invader. A standing armed force, then, could only lead to trouble and to the aggrandizement of State power. In the course of his trenchant and prophetic attack on the proposed Constitution in the Virginia ratifying convention, Patrick Henry warned of a standing army: "Congress, by the power of taxation, by that of raising an army, and by their control over the militia, have the sword in one hand, and the purse in the other. Shall we be safe without either?"4

Any standing army, then, poses a standing threat to liberty. Its monopoly of coercive weapons, its modern tendency toward creating and supporting a "military-industrial complex" to supply that army, and last, but not least, as Patrick Henry notes, the taxing power to finance that army, pose a continuing threat of the army's perpetual expansion in size and power. Any tax-supported institution, of course, is opposed by the libertarian as coercive, but an army is uniquely menacing for its amassing and collecting into one set of hands the massive power of modern weaponry.

Anti-Strike Laws

On October 4, 1971, President Nixon invoked the Taft-Hartley Act to obtain a court injunction forcing the suspension of a dock strike for eighty days; this was the ninth time the federal government had used the Act in a dock strike. Months earlier, the head of the New York City teachers' union went to jail for several days for defying a law prohibiting public employees from striking. It is no doubt convenient for a long-suffering public to be spared the disruptions of a strike. Yet the "solution" imposed was forced labor, pure and simple; the workers were coerced, against their will, into going back to work. There is no moral excuse, in a society claiming to be opposed to slavery and in a country which has outlawed involuntary servitude, for any legal or judicial action prohibiting strikes—or jailing union leaders who fail to comply. Slavery is all too often more convenient for the slavemasters.

It is true that the strike is a peculiar form of work stoppage. The strikers do not merely quit their jobs; they also assert that somehow, in some metaphysical sense, they still "own" their jobs and are entitled to them, and intend to return to them when the issues are resolved. But the remedy for this self-contradictory policy, as well as for the disruptive power of labor unions, is not to pass laws outlawing strikes; the remedy is to remove the substantial body of law, federal, state, and local, that confers special governmental privileges on labor unions. All that is needed, both for libertarian principle and for a healthy economy, is to remove and abolish these special privileges.

These privileges have been enshrined in federal law—especially in the Wagner-Taft-Hartley Act, passed originally in 1935, and the Norris-LaGuardia Act of 1931. The latter prohibits the courts from issuing injunctions in cases of imminent union violence; the former compels employers to bargain "in good faith" with any union that wins the votes of the majority of a work unit arbitrarily defined by the federal government—and also prohibits employers from discriminating against union organizers. It was only after the Wagner Act—and its predecessor, the NIRA in 1933—that labor unions were able to become a powerful force in American life. It was then that unions skyrocketed from something like five percent to over twenty percent of the labor force. Furthermore, local and state laws often protect unions from being sued, and they place restrictions on the employers' hiring of strikebreaking labor; and police are often instructed not to interfere in the use of violence against strikebreakers by union pickets. Take away these special privileges and immunities, and labor unions would sink back to their previous negligible role in the American economy.

It is characteristic of our statist trend that, when general indignation against unions led to the Taft-Hartley Act of 1947, the government did not repeal any of these special privileges. Instead, it added special restrictions upon unions to limit the power which the government itself had created. Given a choice, the natural tendency of the State is to add to its power, not to cut it down; and so we have the peculiar situation of the government first building up unions and then howling for restrictions against their power. This is reminiscent of the American farm programs, in which one branch of the Department of Agriculture pays farmers to restrict their production, while another branch of the same agency pays them to increase their productivity. Irrational, surely, from the point of view of the consumers and the taxpayers, but perfectly rational from the point of view of the subsidized farmers and of the growing power of the bureaucracy. Similarly, the government's seemingly contradictory policy on unions serves, first, to aggrandize the power of government over labor relations, and second, to foster a suitably integrated and Establishment-minded unionism as junior partner in government's role over the economy.

The Tax System

In a sense, the entire system of taxation is a form of involuntary servitude. Take, in particular, the income tax. The high levels of income tax mean that all of us work a large part of the year—several months— for nothing for Uncle Sam before being allowed to enjoy our incomes on the market. Part of the essence of slavery, after all, is forced work for someone at little or no pay. But the income tax means that we sweat and earn income, only to see the government extract a large chunk of it by coercion for its own purposes. What is this but forced labor at no pay?

The withholding feature of the income tax is a still more clear-cut instance of involuntary servitude. For as the intrepid Connecticut industrialist Vivien Kellems argued years ago, the employer is forced to expend time, labor, and money in the business of deducting and transmitting his employees' taxes to the federal and state governments—yet the employer is not recompensed for this expenditure. What moral principle justifies the government's forcing employers to act as its unpaid tax collectors?

The withholding principle, of course, is the linchpin of the whole federal income tax system. Without the steady and relatively painless process of deducting the tax from the worker's paycheck, the government could never hope to raise the high levels of tax from the workers in one lump sum. Few people remember that the withholding system was only instituted during World War II and was supposed to be a wartime expedient. Like so many other features of State despotism, however, the wartime emergency measure soon became a hallowed part of the American system.

It is perhaps significant that the federal government, challenged by Vivien Kellems to test the constitutionality of the withholding system, failed to take up the challenge. In February 1948 Miss Kellems, a small manufacturer in Westport, Connecticut, announced that she was defying the withholding law and was refusing to deduct the tax from her employees. She demanded that the federal government indict her, so that the courts would be able to rule on the constitutionality of the withholding system. The government refused to do so, but instead seized the amount due from her bank account. Miss Kellems then sued in federal court for the government to return her funds. When the suit finally came to trial in February 1951, the jury ordered the government to refund her money. But the test of constitutionality never came.5

To add insult to injury, the individual taxpayer, in filling out his tax form, is also forced by the government to work at no pay on the laborious and thankless task of reckoning how much he owes the government. Here again, he cannot charge the government for the cost and labor expended in making out his return. Furthermore, the law requiring everyone to fill out his tax form is a clear violation of the Fifth Amendment of the Constitution, prohibiting the government from forcing anyone to incriminate himself. Yet the courts, often zealous in protecting Fifth Amendment rights in less sensitive areas, have done nothing here, in a case where the entire existence of the swollen federal government structure is at stake. The repeal of either the income tax or the withholding or self-incriminating provisions would force the government back to the relatively minor levels of power that the country enjoyed before the twentieth century.

Retail sales, excise, and admission taxes also compel unpaid labor—in these cases, the unpaid labor of the retailer in collecting and forwarding the taxes to the government.

The high costs of tax collecting for the government have another unfortunate effect—perhaps not unintended by the powers-that-be. These costs, readily undertaken by large businesses, impose a disproportionately heavy and often crippling cost upon the small employer. The large employer can then cheerfully shoulder the cost knowing that his small competitor bears far more of the burden.

The Courts

Compulsory labor permeates our legal and judicial structure. Thus, much venerated judicial procedure rests upon coerced testimony. Since it is axiomatic to libertarianism that all coercion—in this case, all coerced labor—against everyone except convicted criminals be eliminated, this means that compulsory testimony must be abolished as well. In recent years, it is true, the courts have been alive to the Fifth Amendment protection that no alleged criminal be forced to testify against himself— to provide the material for his own conviction. The legislatures have been significantly weakening this protection by passing immunity laws, offering immunity from prosecution if someone will testify against his fellows—and, furthermore, compelling the witness to accept the offer and testify against his associates. But compelling testimony from anyone for any reason is forced labor—and, furthermore, is akin to kidnapping, since the person is forced to appear at the hearing or trial and is then forced to perform the labor of giving testimony. The problem is not only the recent immunity laws; the problem is to eliminate all coerced testimony, including the universal subpoenaing of witnesses to a crime, and then forcing them to testify. In the case of witnesses, there is no question whatever of their being guilty of a crime, so the use of compulsion against them—a use that no one has questioned until now—has even less justification than compelling testimony from accused criminals.

In fact, the entire power to subpoena should be abolished, because the subpoena power compels attendance at a trial. Even the accused criminal or tortfeasor should not be forced to attend his own trial, since he has not yet been convicted. If he is indeed—according to the excellent and libertarian principle of Anglo-Saxon law—innocent until proved guilty, then the courts have no right to compel the defendant to attend his trial. For remember, the only exemption to the Thirteenth Amendment's prohibition of involuntary servitude is "except as a punishment for crime whereof the party shall have been duly convicted"; an accused party has not yet been convicted. The most the court should be able to do, then, is to notify the defendant that he is going to be tried, and invite him or his lawyer to attend; otherwise, if they choose not to, the trial will proceed in absentia. Then, of course, the defendant will not enjoy the best presentation of his case.

Both the Thirteenth Amendment and the libertarian creed make the exception for the convicted criminal. The libertarian believes that a criminal loses his rights to the extent that he has aggressed upon the rights of another, and therefore that it is permissible to incarcerate the convicted criminal and subject him to involuntary servitude to that degree. In the libertarian world, however, the purpose of imprisonment and punishment will undoubtedly be different; there will be no "district attorney" who presumes to try a case on behalf of a nonexistent "society," and then punishes the criminal on "society's" behalf. In that world the prosecutor will always represent the individual victim, and punishment will be exacted to redound to the benefit of that victim. Thus, a crucial focus of punishment will be to force the criminal to repay, make restitution to, the victim. One such model was a practice in colonial America. Instead of incarcerating, say, a man who had robbed a farmer in the district, the criminal was coercively indentured out to the farmer—in effect, "enslaved" for a term—there to work for the farmer until his debt was repaid. Indeed, during the Middle Ages, restitution to the victim was the dominant concept of punishment; only as the State grew more powerful did the governmental authorities—the kings and the barons—encroach more and more into the compensation process, increasingly confiscating more of the criminal's property for themselves and neglecting the hapless victim. And as the emphasis shifted from restitution to punishment for abstract crimes "committed against the State," the punishments exacted by the State upon the wrongdoer became more severe.

As Professor Schafer writes, "As the state monopolized the institution of punishment, so the rights of the injured were slowly separated from penal law." Or, in the words of the turn-of-the-century criminologist William Tallack, "It was chiefly owing to the violent greed of feudal barons and medieval ecclesiastical powers that the rights of the injured party were gradually infringed upon, and finally, to a large extent, appropriated by these authorities, who exacted a double vengeance, indeed, upon the offender, by forfeiting his property to themselves instead of to his victim, and then punishing him by the dungeon, the torture, the stake or the gibbet. But the original victim of wrong was practically ignored."6

At any rate, while the libertarian does not object to prisons per se, he does balk at several practices common to the present judicial and penal system. One is the lengthy jail term imposed upon the defendant while awaiting trial. The constitutional right to a "speedy trial" is not arbitrary but a way of minimizing the length of involuntary servitude before conviction for a crime. In fact, except in those cases where the criminal has been caught red-handed and where a certain presumption of guilt therefore exists, it is impossible to justify any imprisonment before conviction, let alone before trial. And even when someone is caught red-handed, there is an important reform that needs to be instituted to keep the system honest: subjecting the police and the other authorities to the same law as everyone else. As will be discussed further below, if everyone is supposed to be subject to the same criminal law, then exempting the authorities from that law gives them a legal license to commit continual aggression. The policeman who apprehends a criminal and arrests him, and the judicial and penal authorities who incarcerate him before trial and conviction—all should be subject to the universal law. In short, if they have committed an error and the defendant turns out to be innocent, then these authorities should be subjected to the same penalties as anyone else who kidnaps and incarcerates an innocent man. Immunity in pursuit of their trade should no more serve as an excuse than Lieutenant Calley was excused for committing atrocities at My Lai in the course of the Vietnam war.7

The granting of bail is a halfhearted attempt to ease the problem of incarceration before trial, but it is clear that the practice of bail discriminates against the poor. The discrimination persists even though the rise of the business of bail-bonding has permitted many more people to raise bail. The rebuttal that the courts are clogged with cases and therefore cannot grant a speedy trial is, of course, no defense of the system; on the contrary, this built-in inefficiency is an excellent argument for the abolition of government courts.

Furthermore, the setting of bail is arbitrarily in the hands of the judge, who has excessive and little-checked power to incarcerate people before they are convicted. This is particularly menacing in the case of citations for contempt of court, because judges have almost unlimited power to slap someone into prison, after the judge himself has acted as a one-man prosecutor, judge, and jury in accusing, "convicting," and sentencing the culprit completely free from the ordinary rules of evidence and trial, and in violation of the fundamental legal principle of not being a judge in one's own case.

Finally, there is another cornerstone of the judicial system which has unaccountably gone unchallenged, even by libertarians, for far too long. This is compulsory jury service. There is little difference in kind, though obviously a great difference in degree, between compulsory jury duty and conscription; both are enslavement, both compel the individual to perform tasks on the State's behalf and at the State's bidding. And both are a function of pay at slave wages. Just as the shortage of voluntary enlistees in the army is a function of a pay scale far below the market wage, so the abysmally low pay for jury service insures that, even if jury "enlistments" were possible, not many would be forthcoming. Furthermore, not only are jurors coerced into attending and serving on juries, but sometimes they are locked behind closed doors for many weeks, and prohibited from reading newspapers. What is this but prison and involuntary servitude for noncriminals?

It will be objected that jury service is a highly important civic function, and insures a fair trial which a defendant may not obtain from the judge, especially since the judge is part of the State system and therefore liable to be partial to the prosecutor's case. Very true, but precisely because the service is so vital, it is particularly important that it be performed by people who do it gladly, and voluntarily. Have we forgotten that free labor is happier and more efficient than slave labor? The abolition of jury-slavery should be a vital plank in any libertarian platform. The judges are not conscripted; neither are the opposing lawyers; and neither should the jurors.

It is perhaps not a coincidence that, throughout the United States, lawyers are everywhere exempt from jury service. Since it is almost always lawyers who write the laws, can we detect class legislation and class privilege at work?

Compulsory Commitment

One of the most shameful areas of involuntary servitude in our society is the widespread practice of compulsory commitment, or involuntary hospitalization, of mental patients. In former generations this incarceration of noncriminals was frankly carried out as a measure against mental patients, to remove them from society. The practice of twentieth-century liberalism has been superficially more humane, but actually far more insidious: now physicians and psychiatrists help incarcerate these unfortunates "for their own good." The humanitarian rhetoric has permitted a far more widespread use of the practice and, for one thing, has allowed disgruntled relatives to put away their loved ones without suffering a guilty conscience.

In the last decade, the libertarian psychiatrist and psychoanalyst Dr. Thomas S. Szasz has carried on a one-man crusade, at first seemingly hopeless but now increasingly influential in the psychiatric field, against compulsory commitment. In numerous books and articles, Dr. Szasz has delivered a comprehensive and systematic attack on this practice. He has insisted, for example, that involuntary commitment is a profound violation of medical ethics. Instead of serving the patient, the physician here serves others—the family, the State—to act against, and tyrannize over completely, the person he is supposed to be helping. Compulsory commitment and compulsory "therapy," moreover, are far more likely to aggravate and perpetuate "mental illness" than to cure it. All too often, Szasz points out, commitment is a device for incarcerating and thereby disposing of disagreeable relatives rather than a genuine aid to the patient.

The guiding rationale for compulsory commitment is that the patient might well be "dangerous to himself or to others." The first grave flaw in this approach is that the police, or the law, is stepping in, not when an overt aggressive act is in the process of occurring, but on someone's judgment that such an act might someday take place. But this provides an open sesame for unlimited tyranny. Anyone might be adjudged to be capable of or likely to commit a crime someday, and therefore on such grounds anyone may legitimately be locked up—not for a crime, but because someone thinks he might commit one. This sort of thinking justifies not only incarceration, but permanent incarceration, of anyone under suspicion. But the fundamental libertarian creed holds that every individual is capable of free will and free choice; that no one, however likely to commit a crime in the future based on a statistical or any other judgment, is inevitably determined to do so; and that, in any case, it is immoral, and itself invasive and criminal, to coerce anyone who is not an overt and present, rather than a suspected, criminal.

Recently Dr. Szasz was asked, "But don't you think that society has the right and the duty to care for those individuals adjudged to be 'dangerous to themselves and others'?" Szasz cogently replied:

I think the idea of "helping" people by imprisoning them and doing terrible things to them is a religious concept, as the idea of "saving" witches by torture and burning once was. As far as "dangerousness to self" is concerned, I believe, as did John Stuart Mill, that a man's body and soul are his own, not the state's. And furthermore, that each individual has the "right," if you will, to do with his body as he pleases—so long as he doesn't harm anyone else, or infringe on someone else's right.

As far as "dangerousness to others" goes, most psychiatrists working with hospitalized patients would admit this is pure fantasy.... There have in fact been statistical studies made which show that mental patients are much more law-abiding than the normal population.

And civil liberties lawyer Bruce Ennis adds that:

We know that 85 percent of all ex-convicts will commit more crimes in the future and that ghetto residents and teen-age males are far more likely to commit crime than the average member of the population. We also know, from recent studies, that mental patients are statistically less dangerous than the average guy. So if what we're really worried about is danger, why don't we, first, lock up all former convicts, and then lock up all ghetto residents, and then why don't we lock up all teen-age males?... The question Szasz has been asking is: If a person hasn't broken a law, what right has society to lock him up?8

The involuntarily committed may be divided into two classes: those who have committed no crime, and those who have. For the former, the libertarian calls unconditionally for their release. But what of the latter, what of criminals who, through insanity or other pleas, supposedly escape the "brutality" of prison punishment and instead receive medical care at the hands of the State? Here again, Dr. Szasz has pioneered in a vigorous and devastating critique of the despotism of liberal "humanitarianism." First, it is grotesque to claim that incarceration in a state mental hospital is somehow "more humane" than equivalent incarceration in prison. On the contrary, the despotism of the authorities is likely to be more severe, and the prisoner is likely to have far less recourse in defense of his rights, for as someone certified as "mentally ill" he is placed into the category of a "nonperson" whom no one feels obliged to take seriously any longer. As Dr. Szasz has jocularly said: "Being in a state mental hospital would drive anyone crazy!"

But furthermore, we must question the entire notion of taking anyone out from under the rule of objective law. To do so is far more likely to be damaging than helpful to the people thus singled out. Suppose, for example, that two men, A and B, commit an equivalent robbery, and that the usual punishment for this crime is five years in prison. Suppose that B "gets off" this punishment by being declared mentally ill, and is transferred to a state mental institution. The liberal focusses on the possibility, say, that B may be released in two years by the State psychiatrist through being adjudged "cured" or "rehabilitated." But what if the psychiatrist never considers him cured, or does so only after a very long time? Then B, for the simple crime of theft, may face the horror of lifelong incarceration in a mental institution. Hence, the "liberal" concept of indeterminate sentence—of sentencing someone not for his objective crime but on the State's judgment of his psyche or spirit of cooperation—constitutes tyranny and dehumanization in its worst form. It is a tyranny, furthermore, which encourages the prisoner into deceptive behavior to try to fool the State psychiatrist—whom he perceives quite correctly as his enemy—into thinking that he is "cured" so that he can get out of this incarceration. To call this process "therapy" or "rehabilitation" is surely cruel mockery of these terms. It is far more principled, as well as more truly humane, to treat every prisoner in accordance with objective criminal law.


  1. There is one exception: the punishment of criminals who had themselves aggressed against or enslaved their victims. Such punishment in a libertarian system would at least involve forcing the criminal to work in order to pay restitution to his victim. ↩︎

  2. Significantly, the Thirteenth Amendment's only exception is the punishment of convicted criminals mentioned in the previous note: "Neither slavery nor involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." ↩︎

  3. Cf. James C. Miller III, ed., Why the Draft? (Baltimore: Penguin Books, 1968). ↩︎

  4. Arthur A. Ekirch, Jr., The Civilian and the Military (New York: Oxford University Press, 1956), p. 28. For a trenchant attack by a Jeffersonian theorist on the American executive as commander-in-chief of the armed forces, see John Taylor of Caroline, An Inquiry into the Principles and Policy of the Government of the United States (1814, rep. New Haven: Yale University Press, 1950), pp. 175ff. On the important influence of seventeenth-century English libertarian theorists and their hostility to a standing army upon the American Revolution, see Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967), pp. 61-64. Also see Don Higgenbotham, The War of American Independence (New York: Macmillan, 1971), pp. 14-16. ↩︎

  5. On the Kellems case, see Vivien Kellems, Toil, Taxes and Trouble (New York: E. P. Dutton, 1952). ↩︎

  6. Stephen Schafer, Restitution to Victims of Crime (Chicago: Quadrangle Books, 1960), pp.7-8; William Tallack, Reparation to the Injured and the Rights of the Victims of Crime to Compensation (London, 1900), pp. 11-12. ↩︎

  7. For a hilarious critique of the immunities of the arresting and penal authorities, see H. L. Mencken, "The Nature of Liberty," Prejudices: A Selection (New York: Vintage Books, 1958), pp. 138-43. ↩︎

  8. Quoted in Maggie Scarf, "Dr. Thomas Szasz...," New York Times Magazine (October 3,1971), pp. 42, 45. Among other works, see Thomas S. Szasz, Law, Liberty, and Psychiatry (New York: Macmillan, 1963). ↩︎