Jacob Hornberger on Libertarian Law, Religion and the Growing US Police State

The Daily Bell is pleased to publish an exclusive interview with Jacob G. Hornberger (left).

Introduction: Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at The Foundation for Economic Education (FEE) in Irvington-on-Hudson, New York, publisher of Ideas on Liberty. In 1989, Mr. Hornberger founded The Future of Freedom Foundation. He is a regular writer for The Foundation's publication, Freedom Daily.

Daily Bell: You have a military background. Tell us about it and how it affected your perception of libertarianism – of which you are certainly a prime exponent.

Jacob Hornberger: My four years at Virginia Military Institute (VMI) and, to a lesser extent, my 8 years in the Army Reserves, taught me that I never want to live in an environment in which military officials take care of me, watch every move I make, regulate my every act, and tightly control my behavior. It was a great lesson in learning to despise socialist systems and to love free societies. On the other hand, VMI taught me the importance of personal integrity, provided me with an excellent education and convinced me that a free society depends on citizen soldiers, not a professional standing army, to defend the nation from invasion.

Daily Bell: You are a lawyer as well. As a person with a military background and a law degree, it is something a miracle that you ended up being as iconoclastic as you are. How did this happen? Is it a personality trait?

Jacob Hornberger: I was born a libertarian but I didn't realize it until a few years after I had started practicing law. My practice of law gave me a deep appreciation for the vital importance of the Constitution and of civil liberties in a society – and the threat that zealous and even well-meaning government officials pose to our liberties. If it weren't for criminal-defense lawyers zealously guarding the rights of their clients, there would be a lot more people in jail or executed. That's why totalitarian regimes hate lawyers.

Daily Bell: You were a trial attorney, and trained as so. So let's ask some legal questions if you don't mind. What do you think of American justice and the court system?

Jacob Hornberger: The system of criminal justice established by the Constitution and the Bill of Rights and which stretches back into centuries of resistance to British tyranny by the English people certainly has its faults, but given the protections of habeas corpus and the Bill of Rights, America's criminal-justice system has always been the finest in the world – that is, until federal officials used the pretense of the war on terrorism to circumvent the protections and guarantees in the Constitution and the Bill of Rights.

Daily Bell: We have arrived, at long last, as the conclusion that tribal justice is the best. The system that seems to have worked in the world for tens of thousands of years was one that combined family feuds (unto the seventh generation) with honor feuds (duels with deadly weapons) and negotiated settlements with or without "wise men." In other words, the system was familial, tribal and laissez faire and depended on the threat of force to discourage illegal acts. It had no state involvement except when the tribal/clan leader was approached for settlement purposes. It was not even a Common Law system, as it predates British common law. It predates Roman law as well and we call it "tribal law" as a catch-all, or "private justice." Do you have some thoughts? Is this practical in any way? Is it even worth discussing within the context of the current judicial juggernaut?

Jacob Hornberger: I believe that justice depends on a judicial system in which people can fairly present their case before an independent tribunal, preferably with juries composed of regular citizens, and where the state has a monopoly of force to enforce the judicial judgments. It doesn't guarantee perfect justice but no system can. At least it ensures that people will have the opportunity to be heard, especially with lawyers to present their case, and that winners will have the ability to enforce their judgments without gun battles in the streets.

Daily Bell: Is the American system of justice now Admiralty justice? Is it true lawyers are instructed not to cite precedent before 1930 and that courts will not recognize previous precedent?

Jacob Hornberger: Under the Constitution, U.S. federal district courts have jurisdiction over admiralty or maritime cases, but I assume you mean by the term "admiralty justice" the claim that some tax protestors make that American courts are admiralty courts and, therefore, have no jurisdiction over such tax protestors. I agree with the conclusion reached by the courts that such a claim is meritless and frivolous. No, it is not true that lawyers are instructed not to cite precedent before 1930 or it is not true that courts will not recognize previous precedent. Lawyers are free to cite any precedent that is pertinent to their case.

Daily Bell: What do you think of the ICC? We think there is no such thing as a crime against humanity. One might as well commit a crime against a paper bag. Your thoughts?

Jacob Hornberger: I have mixed feelings about this. I understand the desire to have an international criminal court to bring to justice officials who engage in criminal conduct but whose government won't do anything about it (e.g., the U.S. officials who waged their undeclared war of aggression against Iraq or kidnapped, tortured, renditioned, or executed people without due process). On the other hand though, I don't see how such a court acquires jurisdiction over the world and I agree that a "crime against humanity" is too nebulous. Also, the procedures of the ICC aren't ideal either, including no regard for trial by jury.

Daily Bell: Is an illegal system of justice being erected around the world?

Jacob Hornberger: The judicial system that the Pentagon has established to compete against U.S. federal district courts in terrorism cases is illegal under our form of government, but there is little chance that the Supreme Court will declare it unconstitutional, in large part because the Court knows that the president and the Pentagon wouldn't comply anyway. This is a very bad thing and has brought disgrace and shame to our country. Our criminal justice system — the one the Framers established in the Constitution — with the guarantees provided in the Fourth, Fifth, Sixth, and Eighth Amendments, and habeas corpus in the Constitution — is the best criminal justice system in the world, including for the crime of terrorism.

Daily Bell: Is there any value in copyright? Is intellectual property valuable or, not being scarce, should it be available to anyone without charge?

Jacob Hornberger: I believe in copyrights and I believe they should be protected and not available to anyone without charge unless the owner says so. I understand that there are many brilliant libertarians who hold otherwise.

Daily Bell: Let's switch gears. Tell us about your relationship with Richard M. Ebeling and how you came to found the Future of Freedom Foundation, whose mission is to present an uncompromising moral, philosophical, and economic case for the libertarian philosophy.

Jacob Hornberger: I met Richard when I was practicing law in Dallas, Texas, and he was teaching economics at the University of Dallas. We became good friends, and I hired him to give me a personal chapter-by-chapter tutorial in Ludwig von Mises's magnum opus Human Action. In 1987, I gave up the practice of law to accept the position of program director at The Future of Freedom Foundation, and Richard later moved to Hillsdale College where he became the Ludwig von Mises Professor of Economics. Two years later — 1989 — I left FEE to establish FFF and Richard served as vice president of academic affairs for FFF in addition to his duties at Hillsdale, providing invaluable counsel and contributing a regular monthly article from January 1990 continuously until 2003, when he became president of FEE.

Daily Bell: Tell us about some of the accomplishments of the Future of Freedom Foundation.

Jacob Hornberger: FFF is the recipient of Ron Paul's Liberty in Media Award for Outstanding Freedom Website. In 2007 and 2008 we had two of the finest conferences on foreign policy and civil liberties in the history of the libertarian movement, the lectures of which are posted online at our website (www.fff.org). Every month since January 1990, we have published our monthly journal of essays, Freedom Daily, all of which are posted on our website. For the past several years, we have published our daily FFF Email Update, one of the best libertarian commentary pages on the Internet. We also have a monthly Economic Liberty Lecture Series in conjunction with the George Mason University Econ Society, a student group interested in libertarianism and Austrian economics. Prior to that, we had a great lecture series on libertarianism and Austrian economics for several years entitled The Vienna Coffee Club.

Daily Bell: You'd served three terms on the platform committee of the national Libertarian Party by 2000. In 1996, the Libertarian Party awarded you the Thomas Paine award for outstanding communication of libertarian principles. Are you going to try to run as a Libertarian candidate for president again?

Jacob Hornberger: My three terms on the LP platform committee were very enjoyable and rewarding. I was particularly struck by the ideological purity of the platform, which is why I agreed to serve on the committee. I always considered the platform to be the anchor by which the LP protected itself from LP candidates who were tempted to compromise libertarian principles in the hopes of garnering votes. It one of the biggest honors of my life when the LP awarded me its Thomas Paine award. I have no plans to run as an LP candidate for president again. I think political activity is a great vehicle for spreading libertarianism but I love the educational-foundation arena much more.

Daily Bell: You've written a number of books. Please describe the following BRIEFLY so our viewers can purchase them as they wish.

The Dangers of Socialized Medicine (co-written with Richard M. Ebeling) (1994) ISBN ISBN 0964044706.

Jacob Hornberger: This book shows how government intervention into the healthcare arena, with Medicare and Medicaid, occupational licensure, and regulation, are the root cause of America's healthcare woes. It calls for a complete separation of healthcare and the state, entailing a complete repeal, not reform, of these programs and interventions.

The Failure of America's Foreign Wars (co-written with Richard M. Ebeling) (1996) ISBN 0964044765.

Jacob Hornberger: This book explains how America's foreign wars have been a disaster and calls for the total dismantling of America's foreign military empire, which would entail closing all the foreign bases and bringing all the troops home and discharging them.

Liberty, Security, and the War on Terrorism C) (2003) ISBN 1890687049.

Jacob Hornberger: This book shows how U.S. foreign policy is the root cause of the anger and hatred toward the United States that has led to a constant threat of terrorism, which government officials then use to infringe upon our fundamental rights and freedoms. It calls for an end to foreign intervention and a repeal of all measures that infringe on liberty and privacy.

Daily Bell: Back to politics. Why doesn't the Libertarian party do better in national elections?

Jacob Hornberger: One reason is the horrible ballot-access restrictions placed by the Democrats and Republicans, including ridiculous petitioning requirements. Libertarians have to spend so much money on that that they then lack the money to run campaigns.

Another reason is campaign-donation limits. If people were free to give unlimited amounts of money to candidates, Libertarian candidates could call on a few wealthy libertarian donors to fund their campaigns. And another reason is the propensity of people to vote only for major party candidates.

Finally, the Republicans and Democrats abandoned their principles long ago in exchange for votes, which is why they preach such things as "free enterprise and limited government" and "loving the poor, needy, and disadvantaged" while supporting such socialist, imperialist, and interventionist programs as Social Security, Medicare, Medicaid, public schooling, the drug war, the war on immigrants, torture, wars of aggression, and denial of due process. Statists like to mock the LP for its lack of electoral success, but the fact is that the LP has always placed a higher value on libertarian principles than getting votes, which has made its job in the electoral process more difficult. After all, while things seem to be changing now, American voters have historically oriented toward statism, despite its manifest immorality and destructiveness.

Daily Bell: Was Ron Paul right to position himself as a libertarian republican? It's probably killing the Libertarian party, yes?

Jacob Hornberger: I think he was right because as a practical matter, I don't think voters would have elected him to Congress as an LP candidate, and he has been a tremendously positive force for libertarianism in Congress. No, I don't think he's killing the Libertarian Party. On the contrary, I think he's bringing libertarianism and the Libertarian Party to the attention of ever-increasing numbers of people. One of the most admirable things about Ron Paul is how he has consistently embraced libertarians and the Libertarian Party throughout his congressional terms and during his campaign for president.

Daily Bell: What do you think of Ron Paul? Rand Paul?

Jacob Hornberger: Ron Paul is one of my real-life heroes, and he has been one of the libertarian movement's most effective advocates ever. Rand Paul is not as libertarian as his father, especially when it comes to foreign policy and the war on terrorism, but he is certainly heads and shoulders above standard Republicans when it comes libertarian philosophy, economic principles, and civil liberties. Moreover, Rand Paul's positions on monetary policy and his attacks on the Patriot Act have been extremely admirable.

Daily Bell: Have you become a gradualist about government change or do you remain a radical "Libertarian Outlaw."

Jacob Hornberger: I ardently oppose gradualism and I remain a radical "Libertarian Outlaw." If there were button that could be pushed that would immediately repeal every since welfare-state program, including Social Security, Medicare, and Medicaid, and every since warfare-warfare-state program, including the occupations of Iraq and Afghanistan, I'd push it. When a thief is caught embezzling funds, do we gradually reduce his dependency on the money or do we terminate it immediately? Moral principles are immutable. They're either followed or not.

Daily Bell: You're a born-again Christian and a libertarian. We're always amused by those who believe that a libertarian society would be godless or at least non-religious when the reverse is true. The freer the society, the more spiritual or at least religious it usually is because people need some sort of moral or behavioral structure. We can see this in pre-revolutionary America. How do you see it?

Jacob Hornberger: As a Christian and as a libertarian, I believe people should be free to live their lives any way they want, so long as their conduct is peaceful. That might mean living life in an irresponsible, immoral, and even self-destructive manner.

I agree with you and I do believe that a free society tends to nurture the values that most of us hold dear, such as morality, compassion, and responsibility. But by the same token, it is impossible to predict the outcome of a free society, which scares a lot of people. One of my beefs with conservatives is when they intimate that such values are a prerequisite to having a free society and that people can't be trusted with freedom until they are responsible, moral, and compassionate. As a libertarian, I say nonsense to that. Freedom entails the right to be irresponsible, uncaring, and immoral, so long as your conduct is peaceful (i.e., no murder, rape, theft, fraud, etc.)

Daily Bell: Isn't it true the more government there is, the more corrupt and lawless society becomes?

Jacob Hornberger: Yes, but only when the government is doing things that it shouldn't be doing, such as regulating economic activity or criminalizing the possession or distribution of drugs. When government is limited to doing the things it should be doing – such as going after murderers, rapists, and thieves – more government might be better and society will less corrupt and lawless.

Daily Bell: Should drugs be legalized? Is the war on drugs a failure?

Jacob Hornberger: Yes, absolutely, immediately. With the possible exception of public (i.e., government) schooling, it would be difficult to find a better example of a failed, immoral, and destructive government program. Not only has the drug war not achieved its purported end, it has actually made society much worse off in terms of violence, death, and destruction.

Daily Bell: We think the Internet like the Gutenberg Press before it is collapsing the Anglo-American empire. Reaction?

Jacob Hornberger: The Internet is certainly helping us libertarians educate people to the reality of their government has become – a socialist, imperialist, interventionist monstrosity that is taking our country down the road to moral debauchery, government dependency, and financial bankruptcy. Time will tell though whether a critical mass of Americans decide to restore a free-market, limited-government republic to our land.

Daily Bell: We think the Internet like the Gutenberg Press before it is creating a new Renaissance and new Reformation – Internet Reformation, if you will? Response?

Jacob Hornberger: It certainly is providing people with the means to circumvent the long-established mainstream media outlets, which is a great thing.

Daily Bell: Many believe that a New World Order is being created by an elite group of banking families residing in the City of London. Conspiracy theory?

Jacob Hornberger: It's a conspiracy theory that I don't personally find persuasive. But whether one believes that such a conspiracy exists or not, our goal should be the same – to end all the socialist, imperialist, and interventionist programs and establish a total separation of economy and state, money and state, healthcare and state, and education and state, dismantle our nation's overseas military empire, its standing army, and its military industrial complex, and restore civil liberties to our land.

Daily Bell: Is the US Dollar on the way out?

Jacob Hornberger: It might well be on the way out since the government keeps spending and borrowing and the Federal Reserve keeps inflating and debasing to enable the government to continue spending and borrowing.

Daily Bell: We will see a gold backed currency in your lifetime?

Jacob Hornberger: Possibly, but I would prefer a free-market in money – what Friedrich Hayek, the libertarian Nobel Prize winning economist, called "the denationalization of money." Government has no more business in currency and money than it does in health care, education, or charity. Separate money and the state by repealing legal tender laws, abolish the fed, and free the market so that people can use any type of money they want.

Daily Bell: Interesting point. Can you give us your take on free-banking, clearinghouses and private fractional reserve banking? We're all for money competition generally.

Jacob Hornberger: Yes, I favor free banking, along with the likely possibility of fractional reserve banking, and private clearinghouses. The argument that fractional reserve banking in a free market is fraud, which some libertarians make, is, in my opinion, ill-founded because fraud involves an intentional misrepresentation of a material fact (or omission of a material fact) with the intent to deceive. If the bank represents up front that it is engaged in fractional-reserve banking and the customer agrees, then there cannot be fraud. The customer voluntarily takes the risk of a bank run and the bank's going under. Those customers who don't want to take such a risk can find banks that don't engage in fractional reserve banking and serve simply as warehouses for people's money.

Daily Bell: Let the market decide ... Maybe because the market has been so powerfully regulated it's having difficulty operating. Are we in the midst of a rolling, global depression?

Jacob Hornberger: It sure seems like it to me. In fact, we might actually be in a perfect storm of failure and destruction of statism all over the world, including our nation's own socialism, imperialism, and interventionism.

Daily Bell: Is the war on terror a phony war?

Jacob Hornberger: It's more a fraudulent war. The U.S. government goes abroad and provokes people with things like sanctions, foreign interventions, invasions, support of dictatorships, and foreign aid. Then when the victims retaliate, as they did on 9/11, the government cries, "Oh, it had nothing to do with what we did to provoke them. It's all because they hate us for our freedom and values." And then feds use the terrorist threat to do more of the same, including invasions and occupations, thereby producing a perpetual need for government "protection," which comes in the form of ever-growing infringements on our privacy and freedom, such as the fondling at the airports, the Patriot Act, the spying on Americans, the secret searches of financial information, and so forth.

Daily Bell: Is al-Qaeda a made up enemy?

Jacob Hornberger: No. Its roots go back to the extremist Muslims that the U.S. government was supporting when they were trying to oust the Soviet Union from Afghanistan. After the Soviets were evicted, al-Qaeda committed itself to ousting the U.S. Empire from the Afghanistan, Iraq, and the Middle East.

Daily Bell: Is there ever a justification for "wars of overseas aggression?"

Jacob Hornberger: No.

Daily Bell: Does the US seek overseas conflict to further domestic repression?

Jacob Hornberger: Perhaps but regardless of whether they intend it or not, that is the logical outcome of its overseas interventions. James Madison pointed out that the officials of the Roman Empire were famous for inciting foreign crises whenever the Roman citizenry became restless over the Empire's ever-growing taxes, debt, and regulations.

Daily Bell: Is the US becoming a police state?

Jacob Hornberger: The U.S. has become a police state. Federal officials now have many of the powers wielded by the Middle East dictatorships that the U.S. government supports. These include the power to label people as suspected terrorists, arrest and detain them indefinitely without trial, ignore verdicts of acquittal in federal court terrorism cases, torture people, execute people after kangaroo tribunals, kidnap people and rendition them to friendly dictatorships for torture. Also, we've got the Patriot Act, the CIA, the ATF, and the NSA. Then when you combine the powers being wielded in the war on terrorism with the powers wielded by increasingly militarized cops in the war on drugs, that's what a police state looks like. Doesn't the United States jail more people per capita than communist China and every other country? I think we're Number 1 in this regard.

Daily Bell: Is Obama a better president than George W. Bush?

Jacob Hornberger: They are both the same. Obama is Bush's third term. He is an absolute disaster. Not only does he embrace socialist economic policies and big spending and big borrowing, he's been as big a disaster on civil liberties and foreign policy as Bush.

Daily Bell: Is the EU on the way out? How about the euro?

Jacob Hornberger: I don't know. For sure the welfare states of Europe are collapsing before our eyes, especially given the enormous spending and borrowing burdens placed on their citizenry. Where it will lead is anyone's guess, but I have a feeling it's not going to be pretty.

Daily Bell: Is every law a price fix?

Jacob Hornberger: I'm not sure what you mean by that. Laws against murder, rape, stealing, and other violent crimes place a price on violation, but I consider such laws perfectly valid. Economic crimes, such as minimum-wage laws or price controls, fix prices and are invalid and destructive.

Daily Bell: Are laws and regulations ever necessary, hypothetically speaking?

Jacob Hornberger: Laws that punish actions in which people initiate force against others are necessary. Murder, rape, stealing, fraud, etc., are examples. Laws and regulations that punish peaceful conduct are illegitimate. Examples including drug laws, insider-trading laws, and minimum-wage laws.

Daily Bell: Are central banks necessary? Should they be done away with?

Jacob Hornberger: No, central banks are unnecessary and are highly destructive. They are one of the twin engines by which the federal government confiscates people's wealth. (The other one is the IRS.) It should be done away with immediately. (So should the IRS and the income tax.)

Daily Bell: Are gold and silver going higher in terms of purchasing power? How high?

Jacob Hornberger: Owning gold and silver might not be for the faint of heart because of the stomach-churning plunges in price. But as long as federal spending and borrowing continue soaring, the longer the Fed will be debasing the currency, which means gold and silver will be going higher, at least in terms of the dollar. How high is anyone's guess.

Daily Bell: Where do you go from here? How about your Foundation?

Jacob Hornberger: We continue fighting for a free society by spreading sound ideas on liberty. With crisis comes opportunity – to opportunity to restore a free, peaceful, and prosperous society to our land. We invite everyone to subscribe to our daily FFF Email Update and to our monthly journal "Freedom Daily" and to support our work with tax-deductible donations and bequests. Our work depends on the financial support that people give us. As Mises pointed out, when society is headed toward destruction, none of us can stand aside. We all have a stake in the outcome. We must all throw ourselves vigorously into the battle.

Daily Bell: Are you working on any other books?

Jacob Hornberger: No, we are using the Internet as our primary means to disseminate our libertarian perspectives.

Daily Bell: Is this an exciting era in which to be a libertarian?

Jacob Hornberger: This is the most exciting time ever to be a libertarian. People are finally figuring out that something is fundamentally wrong in our country. If they can only achieve the breakthrough that we libertarians have achieved – that long ago America abandoned its philosophy of freedom, free markets, and a limited government republic and embraced socialism, imperialism, and interventionism, then we've got a real shot at ridding our nation of the statism that afflicts our land, along with all the horrible consequences it has wrought. More people are becoming interested in libertarianism than ever before, especially young people. With two libertarians who can competently and eloquently defend libertarianism now running for the Republican presidential nomination – Ron Paul and Gary Johnson – this will certainly add to libertarian excitement.

Daily Bell: Any other thoughts?

Jacob Hornberger: Thank you for the interview. It's an honor to be added to your cast of interviewees, many of whom have been heroes of mine for a long time.

Daily Bell: Thanks for sitting down patiently through an extensive interview and answering the "tough" questions. It's been a pleasure and honor to interview you.

Like so many others, we've admired Jacob Hornberger's dedication to the spread of libertarianism and the eloquent writing he's produced. The Future of Freedom Foundation is an essential free-market voice, and he's been an effective spokesperson throughout his career.

As a former military man and lawyer, he could have aimed his life's work toward a number of areas. There are certainly more lucrative ways to make a living, but he decided to focus on what he loved and believed in. He was "born" to do what he's doing and his passion is evident.

We learned a lot in this interview, as we expected to. Jacob Hornberger is a widely read individual, and that comes through in his books and articles as well as his interviews and radio appearances. His remarks on religion, free banking and the West's growing militarism were most thoughtful in our opinion. One issue where we still have questions (though admittedly his opinion is more mainstream than ours) is his perspective on the American justice system.

We pointed out some of our conclusions about tribal and clan justice as a workable and ancient system that predates British Common Law and emphasized familial as well as "elder" negotiation. His reply, as you can see in the interview, above, emphasized the system as it had evolved, including a trial by jury before an independent tribunal "where the state has a monopoly of force to enforce the judicial judgments."

Of course, once the state has a monopoly of force, doesn't that allow the state a good deal of latitude? It seems to us that we're reaping the unfortunate results of a monopoly of force, today, given the growing government lawlessness both in America and Europe. We also asked him about the idea that modern US courts operate under Admiralty law. He seemed to answer this question carefully: "I agree with the conclusion reached by the courts that such a claim is meritless and frivolous."

He was far blunter in regard to the how US courts evolved in the 20th century. His answer was unequivocal: "No, it is not true that lawyers are instructed not to cite precedent before 1930 or it is not true that courts will not recognize previous precedent. Lawyers are free to cite any precedent that is pertinent to their case."

He was clear about the ICC, stating that he doesn't see how "such a court acquires jurisdiction over the world" and that a "crime against humanity is too nebulous." We certainly agree with that and were not surprised by his perspective or willingness to speak out.

We thanked him at the end of the interview for answering "tough" questions but he's been taking on tough issues throughout his professional career. Those in the libertarian community are lucky to have his eloquence and influential think-tank the Future of Freedom Foundation to call on. The fight for freedom has never been more necessary than today.

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