On Eminent Domain: My Letter to Judge Andrew P. Napolitano

[I just emailed this letter here.]

Judge Napolitano,

Hello. Listening to your talk today that you gave at Mises University, something occurred to me:

[Edit: let me embed the talk of his about which I speak; go to 12:47 for his discussion of eminent domain, on which I will be focusing: Again, go to 12:47. End of edit; back to the letter.]

The Constitution nowhere empowers the federal government to practice eminent domain. That is, nowhere in the Constitution is that power granted in the first place. Nor does the Constitution anywhere say that people hold their property by fee simple and not allodial title.

[Edit: let me insert USLegal.com's definitions for "fee simple" and "allodial":

Allodial means free from the tenurial rights of a lord, as opposed to feudal land. It refers to absolute ownership of land by individuals, rather than feudal property ownership, which is dependent on relationship to a lord or the sovereign. Allodial land is not subject to any rent, service, or acknowledgement to a superior.

Most property ownership in the common law world is held in fee simple. Fee simple ownership represents absolute ownership of real property but it is limited by the four basic government powers of taxation, eminent domain, police power, and escheat and could also be limited by certain encumbrances or a condition in the deed. Allodial title is often reserved for governments.

End of edit; back to the letter.]

Given the doctrine of limited, enumerated powers, doesn't that mean that at least with respect to the federal government (each state constitution is its own issue), we all ought to be holding our property by allodial title? After all, the Federalists - including Hamilton himself! - argued that the Bill of Rights is superfluous, because the Bill of Rights prohibits things that are not even permitted in the first place. (Hamilton, Federalist #84: "For why declare that things shall not be done which there is no power to do?")

The Fifth Amendment states, "... nor shall private property be taken for public use, without just compensation", but even that does not empower the federal government to practice eminent domain; it merely limits that power insofar as it exists. It says that property shall not be taken without compensation, but nowhere is there a power to take any property in the first place.

Compare how the First Amendment prohibits the restriction of free speech, but that really, the government was never granted any power to restrict speech in the first place. So too, the Fifth Amendment prohibits taking property without compensation, but really, the government was never granted any power to take property in the first place.

In short: if we take the Federalist tack that the Bill of Rights is superfluous, and that really, we ought to entirely ignore it and do nothing without express sanction in the Constitution (and pretend the Bill of Rights does not even exist), then wouldn't that mean that eminent domain is legitimate only if we find a clause in the Constitution expressly permitting it? (I think the Antifederalists would agree, only they did not trust the government, so they wanted a superfluous and redundant Bill of Rights, just to be safe.) So doesn't that mean that eminent domain is unconstitutional even according to Hamilton?

The issue is, that this implies a contradiction within the Constitution. I mean, if the Fifth Amendment merely said, "... nor shall private property be taken for public use", period, omitting "without just compensation", then fine, we'd say that the clause is redundant and superfluous, just like the rest of the Bill of Rights. But that "without just compensation" throws a spanner in the works; it implies that someone thinks that WITH just compensation it WILL be legal, but that is apparently false. If, according to Hamilton's logic, eminent domain is prohibited absolutely (because there is no express permission), then why say "without just compensation"? Just say, "... nor shall private property be taken for public use", period. Heck, go one better and say, ""... nor shall private property be taken", omitting "for public use" as well! It's understandable when John Adams violates not only the First Amendment but also the doctrine of enumerated, limited powers (that renders the First Amendment redundant), because he is a selfish, power-hungry human, and the government applies the laws only when those laws are in its own favor. But one expects the Constitution to be at least internally consistent; it's reasonable when the practice of the government contradicts the theory, but it's not reasonable when the theory contradicts itself.

Obviously, states are not bound by the Constitution, so it is certainly possible that on the state level, property is held by fee simple, and not allodial title. (This would be despotic and evil, of course, but still constitutional. I am reminded of Rose Wilder Lane recounting a conversation with some primitive Himalayans, who said that if you must pay property taxes in America, then apparently, the government owns your property, and you merely rent it. From the mouths of babes.) So it is eminent domain on the federal level that I cannot wrap my brain around.

So I am confused. Could you please help me?

Thank you, and sincerely,
Michael Makovi
Jerusalem, Israel; formerly of Silver Spring, MD

The Purpose of Jobs and Employment

There is an especially poignant moment in the lyrics of the "Hayek vs. Keynes Rap Round 2" video, where Hayek explains the very purpose of jobs and employment, to counter Keynes's fallacies:

Creating employment is a straight forward craft when the nation’s at war and there’s a draft. If every worker were staffed in the army and fleet we’d have full employment and nothing to eat.

Jobs are a means, not the end in themselves. People work to live better, to put food on the shelves. Real growth means production of what people demand. That’s entrepreneurship, not your central plan.

One internet commenter put the matter well, here:

First we have to consider what the purpose of jobs are. The purpose of jobs is to create things that we want; things like pizzas, ipods, and TV's. If pizzas and ipods and TV's rained down from heaven, we wouldn't need to work anymore. The purpose of jobs isn't to have everyone work. If that's all you want then here is the solution: Have one-half of the country dig holes, and have the other half of the country fill them up.

One thing people get wrong is they think that there are only a limited amount of jobs available for people to do, hence a person who can't get a job is "forced" to take anything they can get, like a horrible job from GE. Actually, there are an unlimited amount of jobs, because people have an unlimited desire for goods. Think of jobs as like having a wish-list with all of the things that we want and dream of on the list. The more jobs we accomplish at the beginning of the list, the further down the list we can go.

Think of it like Swiss Family Robinson. At the beginning of their list are tasks like "Get Coconuts," then "Build House," then "Build Raft" then maybe far down "Create Work Of Art." The more things they can produce, the further down the wish-list they can go. When a company is able to increase their efficiency and thereby produce more goods with the same amount of labor, they then are able to sell us those goods for less money. That means we then have money to spend on something further down our wish-list. Like a new bicycle for instance. And guess what that means for the bicycle company? They now need to hire new people to make more bikes which everyone is now buying because they can suddenly afford it. So jobs just shift down the wish-list.

This actually cuts through the baloney in that scene in I, Robot, where Will Smith tells the executive that his robots are crapping on the little guy because they are doing jobs like furniture-making that people used to do. He doesn't get that if robots made all of our goods, then the goods would be so much more abundant and therefore cheaper because greater supply lowers prices. And the furniture-makers could move down the list and start making works of art or whatever. Think about this: 99% of the jobs people used to do, like farming for example, are done by giant robot machine combines that can do in 5 minutes what a man took a day to do. So why don't we have 99% unemployment today?

The reason why there aren't an unlimited amount of jobs in America today and there is unemployment is because of things like unions [voluntary unions are fine, government backed unions are not], minimum wages, zoning, managed trade agreements like NAFTA that benefit big corporations because only they have a team of lawyers that can maneuver through them, Dept. of Agriculture laws where the government pays farmers for growing millions of dollars worth of food and letting it rot in the fields so that the price of food goes up (uhhh... how about not doing that and letting those farmers work on another item on our endless list?) and the Federal Reserve that causes the boom-bust business cycle and inflation.

Just one comment: regarding the governmentally-stipulated burning of agricultural produce to raise prices, the fear is that if farmers grow too much food, the prices on food will go down, and the farmers will not earn enough money to live. Somehow, it never occurs to the government that a few things could happen: (1) a few farmers realize that there is over-supply of food, and hence over-supply of food producers, and that they should go find jobs in better-paying sectors, "better-paying" meaning that supply is not yet sufficient to mean demand, meaning that their labor is needed more there than here; (2) they could sell more food to people, that more supply of food at a lower price might boost demand for people who couldn't afford enough food; for example, perhaps poor inner-city individuals or starving Africans might buy more American produce if that produce suddenly got cheaper, but the government cannot conceive of the fact that demand might increase. As the commenter put it, it used to be that 99% of people were employed in subsistence farmer; we aren't all unemployed today because once farming became more efficient, and the same food could be grown with less labor, we all diversified and found new jobs to fulfill new desires that we never even had an opportunity for. (A Medieval peasant did not care about art; he was too concerned about food. Now that food is satisfied, we can go down the list.) So the government assumes that with more produce and lower prices, demand will remain the same, and the farmers will become poor; the possibility that demand will increase or that some farmers will liquidate their jobs and find new employment in a higher-demand sector somewhere else, never occurs to the government.

The First Amendment and Expressions of Religion in Public Schools

We hear a lot of talk about how expressions of religion in public schools - such as mentions of God by high school graduating valedictorians - is contrary to the First Amendment. The problem, however, is that such an argument ignores the actual text of the First Amendment itself. Let us quote that amendment, with emphasis added by me:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Fourteenth Amendment extends (federal) "Congress" to include the states(' legislatures), but nothing has changed "shall make no law". Actually, Clarence Thomas makes an argument that I have already previously made myself independently, namely that according to the literature of the Framers (see, for example, Justice Joseph Story's opinion), freedom of exercise was considered a universal human right, but freedom from a state-established church was not, and that therefore, if the Fourteenth Amendment extends protection of all liberties and rights (such as they were understood by the Framers) to the state-level, then, if we accept the consensus of what everyone considered to be rights at the time, states would be required to guarantee freedom of exercise but they would not be required to guarantee freedom from establishments. That is to say, the Framers recognized certain things as rights and certain things not as rights, and sometimes, they would say that something was a human right but that the federal Constitution had no power to force the states to respect that right; the Fourteenth Amendment changed this, by requiring states to recognize all human rights, but it did nothing to expand the list of rights beyond those recognized by the Framers. I would say, personally, that the Framers were wrong for countenancing state-level establishments, but they countenanced them nevertheless, despite my disapproval. According to this argument, the Fourteenth Amendment incorporated the "freedom of exercise" clause but not the "respecting an establishment" clause. But be that as it may. The argument I will make below, applies fully even if the entire First Amendment is incorporated without distinction. So let us just say, for the sake of argument, that the Fourteenth Amendment extends the entire First Amendment to the state-level; if so, then it extends (federal) "Congress" to include the states(' legislatures), but it does not affect "shall make no law".

Given that the First Amendment speaks only of laws, it obviously does nothing to restrict the private sphere. As for the other branches of government, viz. executive and judicial, it would seem to me that the First Amendment does not affect them. Rather, what would limit them, is any constitutional - whether federal or state - stipulations of their power.

If, for example, the Constitution were to specify that the president cannot do anything not provided in law ("the president's powers shall be limited to executing any laws already passed by Congress"), then he could not do anything religious, insofar as any religious law would be unconstitutional, and so the only way he could do anything religious would be to act according to something other than the law, and this hypothetical provision already said that he cannot do anything except for what is in the law. (Obviously, the First Amendment does not speak of things that are merely "religious". And even if it did, what does "religion" mean? Does a religion have to be theistic? I don't want to get into defining religion. Let's just speak of "religion" and "religious", without bothering to define what that means.)

That is hypothetical, of course, as no such constitutional provision exists. The point, however, is that what would limit the executive and judicial branches is their own constitutional stipulations of power, be whatever they may, but the First Amendment affects only the legislature and no one but the legislature.

For example, the federal Constitution states the president "shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient". Nothing there says that anything he states in the State of the Union, or any of his recommendations, must be in accordance with any other laws. So he can, apparently, say whatever on earth floats his boat. Congress cannot pass a law that favors or restricts religion, but apparently, the president could get up and read Jonathan Edwards's "Sinners in the Hands of an Angry God", and nothing would stop him, for Congress did not thereby pass a law, and the president did nothing contrary to his own personal stipulations of power. And if fact, if Congress passed a law banning the president from using the State of the Union address as an opportunity to hold a Christian revival meeting, that ban itself would violate the First Amendment!

So I ask: what law is there about prayers offered by a valedictorian? According to the First Amendment, any such religious expression, even by governmental officials, is permissible as long as there is no law mandating it. Only if some other express constitutional provision, outside the First Amendment, restricts the executive and/or judicial branches, is there a problem, but the First Amendment affects only the legislature; it does not affect even governmental officials not in the legislature, much less does it affect private citizens such as a high school valedictorian.

As an aside, I am frustrated to no end by those who cite the First Amendment's religious clauses in their defense (in order to restrict governmental involvement in religion) but who are otherwise do not oppose government involvement in general. I often say that religious freedom is merely a microcosm of libertarianism in general. If you study 16th-18th-century history, you see that much of libertarianism in general grew out of opposition to religious persecution in particular. After all, religion was the most important thing in the world, and if there was ever any opposition to government or tyranny, that opposition would first surface with religion. Whether a person was willing to change his religion to suit the government's, or whether he was adamant about worshiping in his own way; and whether he tried to use the government to force others to worship like himself, was always the first manifestation of whether a person was a statist or a libertarian. (The second manifestation was probably the right to bear arms; once a person decided to rebel against the government over religion, he needed weaponry in order to do so. "Rebellion to Tyrants is Obedience to God"!) So anyone who demands religious freedom but not libertarianism in general, is a hypocrite. In 18th-century America, there was already, for the most part, complete freedom of exercise. The state church of Massachusetts, for example, required people to pay taxes to support the church, but otherwise, everyone was free to worship as he wanted. Patrick Henry (the great Antifederalist!) wanted to imitate this in Virginia, with his "A Bill Establishing a Provision for Teachers of the Christian Religion", but Thomas Jefferson opposed it with his own (and victorious) Virginia Act For Establishing Religious Freedom. But as I said, there was already full freedom of exercise! So what did Jefferson oppose? Taxation. That is it: taxation. Taxation alone was the sole issue at stake. So how many people who cite Jefferson's famous letter to the Danbury Baptists (which relied on Roger Williams, hardly an atheist), also rely on Jefferson's argument that the primary issue of religion-and-government was taxation and taxation alone? Are these people who speak of "a wall of separation between Church & State", also voting for Ron Paul? Anyone who demands freedom of worship, without denouncing John Maynard Keynes as a despotic tyrant, is a hypocrite. Indeed, my own being a libertarian today, started with my opposition to the Israeli government's insistence that IDF soldiers had to obey orders to expel Jews from Gaza, which orders these soldiers felt violated the Torah. It was a short step from my opposing a government that insisted soldiers obey orders they considered to be contrary to their religion, to my today being a general libertarian, favoring Austrian Economics and all that jazz.

Anarchist's Progress: the State as a Monopoly on the Use of Violence

I was just remembering how I first encountered Max Weber's concept of the state as that body possessing a monopoly on the use of violence, months ago, when a friend of mine posted on Facebook some article about sectarian violence in some Middle Eastern country (I forget which), where he commented in general about failed states that failed to exercise the monopoly on the use of (legitimate) violence.

In my naivety, I commented that according to natural law, all private men have a God-given, absolute right to bear arms, and that as per nemo potest dare quod non habet ("no man can grant that which he does not own himself", i.e. the government has only those powers granted to it by those citizens who themselves possess those powers), it is the people who grant the government the right to bear arms, not vice versa. Therefore, I said, the concept of the government having a monopoly on the use of violence, and granting to citizens the right to use violence, made no sense.

Therefore, I said, the notion that a state is "failed" for failing to secure a monopoly on violence per se, made no sense to me. To me, the state had a functional purpose, viz. to protect life, liberty, and property, but it did not have a monopoly on this function. The state was an organization formed by voluntary contract and consent, and citizens could, at any time, at will, revoke their consent to be governed. The state might "fail", in my mind, if it failed to suppress immoral or unjust violence, i.e. if it failed to fulfill its functional purpose, but not if it merely failed to suppress all violence per se outside the state's monopoly, which monopoly I did not recognize.

So we see that I was an anarchist a long time ago, but I just didn't realize it. I honestly thought I was a minarchist. To me, to say that the state ought to exist as a voluntary organization composed of those who consented to membership and who hadn't submitted a request to be disenrolled, was a perfectly cogent thing to believe without being an anarchist. In defense of my naivety, I quote Albert Jay Nock's "Anarchist's Progress":

It will easily be seen, I think, that the only unusual thing about all this was that my mind was perfectly unprepossessed and blank throughout. My experiences were surely not uncommon, and my reasonings and inferences were no more than any child, who was more than halfwitted, could have made without trouble. But my mind had never been perverted or sophisticated; it was left to itself. I never went to school, so I was never indoctrinated with pseudo-patriotic fustian of any kind, and the plain, natural truth of such matters as I have been describing, therefore, found its way to my mind without encountering any artificial obstacle.

Torah Judaism: A David Friedman-ite Anarcho Capitalism

According to Rambam's view that a rabbi or dayan is forbidden to live off the public, but must earn his own income independently, Judaism is actually a David Friedman-style anarcho-capitalism. According to Friedman, anarcho-capitalism is simply when you have a justice system that must operate on voluntarily-donated/paid funds rather than coerced-taxation.

The Talmud also presents a society in which rabbis earn their own livings by manual labor, not subsisting off public funds.

Also, while the Torah does command that tithes be paid to the priests, Rabbi Emanuel Rackman notes in his book One Man's Judaism, that technically, the halakhah requires only that you separate the tithes from your food, not that you give them to anyone. That is, your food is not kosher until you separate the tithe, but once you separate the tithe, making the food kosher, there is nothing to force you to actually give that tithe to anyone. The Talmud says that everyone is free to give to the tithe to the priest of his personal choosing.

Anyway, I quote Pirkei Avot:

(1) "Rabbi Tzadok used to say: Do not make the Torah a crown with which to aggrandize yourself, nor use it as a spade with which to dig. As Hillel used to say: He who makes worldly use of the crown of the Torah shall perish. Thus you may infer that any one who exploits the words of the Torah removes himself from the world of life."

(2) "Shemayah and Avtalion received the Torah from them. Shemayah said: Love work; hate domination; and seek not undue intimacy with the government."

(3) "Rabban Gamaliel the son of Rabbi Judah the Prince said: Great is study of the Torah when combined with a worldly occupation, for toil in them both puts sin out of mind. All study of the Torah which is not supplemented by work is destined to prove futile and causes sin. Let all who occupy themselves with communal affairs do so for Heaven's sake, for then the merit of their fathers sustains them and their righteousness endures forever. And as for you, G-d will then say: I count you worthy of great reward as if you had done it all yourselves."

Fiat Currency vs. Commodity Currency, and the Crime of Private Money

On Facebook, my friend Brett posted Silver-Mad Small Investors Fueled an Epic Rise and Fall, about a crash in the value of silver. (The Facebook post, which will be viewable to you depending on Brett's privacy settings, is here.)

His friend Roberto commented, "As I believe I commented before, this, among many other reasons, is why non-fiat currency is bullshit."

I replied,

‎... and I suppose you're arguing that fiat currency cannot inflate, LOL? Last time I checked, the Federal Reserve has caused the dollar to lose 95% of its value. There's something perverse about arguing that because silver is not entirely stable, that we should therefore use something even less stable. City A has a relatively high crime rate, so everyone in City A should move to City B, where the crime rate is even higher. Yay!

Furthermore, silver is not the only commodity out there. You also have gold, platinum, palladium, antique furniture... Silver is like any commodity: its value changes. No one claimed that they are immune to changing in value, the same way that the value of anything can change. When cars were invented, the value of horses would have probably plummeted, but did people complain and petition that cars be banned to save the horses industry?

The ideal currency would be a non-coerced one, i.e. one without any legal tender law. Let people negotiate transactions in whatever currency they desire. If they want to negotiate transactions in United States Treasury Notes, then let them, by all means; they are free to do so. It's just that no one should be coerced into using a given currency against his will. So ideally, we wouldn't even have a gold standard or a silver standard; we'd just have a liberty-of-contract standard.

Like I said, if people want to voluntary trade in Treasury Notes, they should be free to do so. They simply shouldn't be coerced into using Federal Reserve notes against their wills. Keynesians are strangely reluctant to answer the following question: if their policies are so superior, then shouldn't they be able to prevail of their own intrinsic excellence? That is, if government money is so much more stable than the free-market alternatives, then why do you have to force anyone to use it? If it is so much better, then people ought to voluntarily gravitate to it, naturally and organically, without coercion. The very fact that the government must coerce people into complying with its policies, shows how vacuous the government's claims are, how naked the emperor truly is. You don't have to pass a law against yelling "the emperor is naked", unless he really is naked. If you have to pass a legal tender law, it means that you know your currency is worthless. To quote John Witherspoon, "Essay on Money", "The measure [of legal tender laws] carries absurdity in its very face. Why will you make a law to oblige men to take money when it is offered them? Are there any who refuse it when it is good? If it is necessary to force them, does not this demonstrate that it is not good?"

Roberto replied,

The difference between commodity and fiat currency -- really, the ONLY difference -- is that you can control the rate of inflation or deflation for a fiat currency in most cases. You can't with a commodity since it's tied to speculation and what comes out of the earth. That's why every nation on earth uses a fiat currency today; it simply works. Nobody is coerced into using any form of currency. Media of exchange are purely defined by what it accepted. ... ‎"Value" is just a number. Purchasing power is what counts, and purchasing power has largely held steady. Which, with advances in technology and infrastructure, mean purchasing power has in real terms massively increased.

I responded,

"That's why every nation on earth uses a fiat currency today; it simply works."

No. It's because fiat currency gives the government an amazing ability to monetize the debt. Likewise, no, it does *not* give YOU an ability to control inflation; it gives the GOVERNMENT ability to control inflation in whatever way will work to the government's favor. In fact, the Federal Reserve was founded when banks complained that having to have specie on hand to back their paper, cramped their style and prevented them from promiscuously over-inflating the currency via fractional reserve banking. The banks were being held accountable, and they didn't like it, so they asked the government to cartelize the industry. The government agreed as long as it got a cut of the plunder, via monetization of the debt.

Nobody is coerced, eh? What about when FDR outlawed the private ownership of gold and nullified all contractual gold clauses? That doesn't strike you as coercive.

By the way, having a human able to control inflation is inherently a very bad thing. It is precisely because specie currency cannot be controlled by any human, that it is so attractive. You have offered the best argument *against* fiat currency. Thank you, sir.

"'Value' is just a number. Purchasing power is what counts"

So you care nothing for people's savings? As long as people's wages rise commensurately with inflation, you don't care about those who have been saving their incomes for the long term, or even those who don't have incomes?

In other words, you have no regard for the poor who must save their money over time to purchase expensive goods, nor do you care about the elderly.

So you hate the poor and the elderly. Good to know. I bid you adieu, you asshole.

Brett's friend Matthew gave a valuable defense of my arguments:

This whole thread makes me laugh, then incredibly sad over and over again.

The difference isn't between "fiat" and "commodity" currency. It's between what people with guns say is money and what everyone else says is money.

Speculators can be the life and death of either. You will see this happen in just a bit, when no matter how high yields go on Treasury bonds they simply won't sell.

The question is, should everyone be allowed to switch currencies- use whatever medium of exchange they want- or should people with guns enforce a monopoly on this exchange. Whether printed currency is backed by commodities or not is irrelevant if the exchange rate is centrally controlled.

The Austrian school is for free money, not a gold backed currency. (Though they do recognize that gold is harder to tamper with

Roberto retorted,

Everyone can use any medium of exchange they want, Matthew. Seriously, go over to a local Mom-and-Pop store and try offering the owners something not in the form of dollars in exchange for goods and services (I recommend a fairly rare commodity that is commonly valued as a semi-liquid form of exchange, like gold or diamonds). If you offer 'em enough of something they want, I guarantee they'll provide to you in exchange for whatever it is you're willing to give them in exchange. This is done ALL THE FUCKING TIME in EVERY ECONOMY ON EARTH. :P

I responded to Roberto, saying,

@Roberto:

You said, "Everyone can use any medium of exchange they want, Matthew."

The United States government begs to differ: http://mises.org/daily/5184/The-Crime-of-Private-Money

Regarding Bernard von NotHaus's Liberty Dollars, for which he was convicted with counterfeiting, Robert M. Murphy has two salient comments:
(1) "It would be naïve to conclude that von NotHaus would have been safe had he taken more care to distinguish his coins from those of the US mint. For one thing, the government's case was internally contradictory: On the one hand, von NotHaus is accused of counterfeiting, in other words, trying to pass his coins off as authentic US coins. On the other hand, von NotHaus is accused of undermining the 'legitimate' US currency by offering a product to compete with it. Indeed, von NotHaus advertised his Liberty Dollars as inflation-proof substitutes for the "genuine" US currency. So which is it? Either von NotHaus was trying to pass his coins off as regular quarters and dollars, or he was trying to convince people that his own coins were superior."

In other words, von NotHaus was convicted of both counterfeiting ( = imitating US currency) and of competing with it ( = deliberately NOT counterfeiting, and offering something patently unlike US currency for the express purpose of highlighting how it is NOT US currency). He was damned either way.

The government's indictment of non NotHaus read, in part, "Along with the power to coin money, Congress has the concurrent power to restrain the circulation of money not issued under its own authority, in order to protect and preserve the constitutional currency for the benefit of the nation. Thus, it is a violation of law for private coin systems to compete with the official coinage of the United States." I will note in passing the fact that the Constitution nowhere authorizes the federal government to prevent competition with its own currency; indeed, the states alone ratify currency as legal tender, and they are perfectly entitled to ratify FOREIGN NATIONS' currency as legal tender! In fact, the US dollar was originally just a rebranded Spanish dollar! But aside from this fact, the point is that the United States government has announced that it will crack down on COMPETITION with its currency.

So Roberto, when you said, "Seriously, go over to a local Mom-and-Pop store and try offering the owners something not in the form of dollars in exchange for goods and services", you were advocating that Matthew violate the law. Roberto, you are guilty of sedition, of active and explicit advocacy that Matthew ought to break the law.

(2) Murphy's second comment is this: "As a college professor and lecturer at the Mises Institute, I have always had some difficulty explaining exactly how the government kept everybody using fiat money. Students would often think that legal-tender laws explained everything, but I would point out that they weren't the whole story. ... I would argue that if any attempts to circumvent the dollar actually got off the ground, then the government would find some legal pretext to shut it down. So it was pointless to study the legal code and come up with loopholes, because the government wouldn't play by the rules. It would find a way to shut down a genuine threat to its monopoly on money, meaning no entrepreneur would spend the resources and time trying to launch an alternative system. The fate of Bernard von NotHaus has vindicated my musings."

Edwin Vieira has a different explanation than Murphy about why private currency has not taken off. His argument is, that once FDR outlawed all private gold clauses, people forgot about the possibility of such clauses even after they became legal again. But Vieira's argument, though different than Murphy's, does not make the government look any better.