"For tell me, if you saw any two persons, one naked, one having a garment, and then having stripped the one that had the garment, thou wert to clothe the naked, wouldest thou not have committed an injustice? It is surely plain to every one. But if when thou hast given all that thou hast taken to another, thou hast committed an injustice, and not shown mercy; when thou givest not even a small portion of what thou robbest, and callest the deed alms, what manner of punishment wilt thou not undergo?" - St. John Chryosostom (Patriarch of Constantinople, c. 388 AD) on tax-funded welfare programs (ok, so he was actually talking about Matthew 27:6). Full text available from CCEL.
The April 2006 issue of the Invisible Hand Newsletter is now available for download. The publishers hope that libertarian groups and individuals at colleges and universities across the country - and perhaps even internationally - will print and distribute this newsletter on their campuses. This latest issue contains an article by yours truly entitled "What Rights Don't I Have?" and based on a blog.kennypearce.net post from last October entitled "Why 'Positive Rights' are Stupid." The whole newsletter is worth a read.
I was recently introduced to The Invisible Hand, a newsletter being put out by the Rutgers Libertarians (that would be Rutgers University, in New Jersey). The first edition came out last November and was distributed at two campuses in New Jersey. Now the group wants to get a wider distribution, by having individuals and groups on various college campuses throughout the country print the newsletter from the internet and distribute it. I am planning to submit an article on positive rights and why libertarians don't believe in them (based on this post) for the next issue, which is due out in late March/early April.
In the meantime, the the current issue has a couple of very good articles I would like to comment on.
First, the article "The Political Philosophy of Freedom" is a very good overall introduction to libertarianism. However, I have two problems with it: first, it makes it look as though libertarianism requires a very optimistic philosophical anthropology (that is, theory of humanity). This is problematic for me, because, while Christianity is very positive about what man was meant to be and what he can become with God, it is very negative about man's present fallen state, and I believe quite firmly that Christianity and libertarianism are compatible. I thought addressing this would require a whole separate post, but the end of the article came to the point and answered my concern quite nicely with this quote from Thomas Jefferson: "Sometimes it is said that man cannot be trusted with the government of himself. Can he then be trusted with the government of others? Or, have we found angels in the form of kings, to govern him? Let history answer this question." My second, less important, objection is that the author lumps 'anarcho-capitalists' in with libertarians, which I think may be misleading. In general, libertarians believe that the minimal 'night watchman' state is absolutely critical in order to protect us from force and fraud. It is just that when the government goes beyond this mandate and violates individual rights, it becomes fundamentally unjust.
Other articles explain why the government ought not to define marriage (at all) and why the only wasted vote is a vote for a candidate you don't actually want to see in office. The latter seems fairly obvious to me, but then I'm a third party voter, and an intense non-consequentialist. I think I have a moral duty to vote for the best candidate on the ballot regardless of his chances of winning. If you don't believe this, you should read the article, which will give some more pragmatic reasons for voting for third parties (if, that is, you are unhappy with the major parties - but who isn't these days?). The whole thing is worth a read.
Jeff The Baptist is pointing to this opinion piece by one Jim March, apparently an activist concerned with gun policy and electronic voting machines (no, the two don't seem to be connected). After reading the article, I take March to be a singularly un-nutty gun nut. He provides statistics, history, scientific case studies, and personal anecdotes to support his position that keeping guns away from law-abiding citizens (a) undermines democracy, and (b) increases crime. Particularly interesting is his claim that the development of weapons technology that could be purchased and used by the common people was an essential element in the rise of democracy.
In principle, I find his view compelling, although in practice it would make me uncomfortable to know that people around me were carrying guns - even people I trusted, and even in dangerous areas (I've been living on the edge of West Philadelphia for a few years now).
There is also one further theoretical difficulty. When Michael Badnarik was campaigning for president, he had a debate with David Cobb, the Green Party candidate, in which Cobb pointed out that some gun control was certainly reasonable, because people obviously didn't have a right to private nuclear weapons. To my great disappointment, Badnarik did not have a chance to respond. What are the levels of gradation between ownership of nuclear weapons (which I take NOT to be a right of the individual) and ownership of small knives (which I take to be a clear and obvious example of a right of an individual)? Perhaps an account could be developed based on Nozick's discussion of the prohibition of risky behavior, such that we can prohibit the individual ownership of nuclear weapons provided we compensate the individual for the loss of utility (what legitimate utility could he get from ownership of nuclear weapons?), but then why could we not prohibit him from owning guns? Perhaps the utility gain from owning guns is so great we could not possibly compensate him for it, but the utility gain from owning nuclear weapons is small. For instance, the government is capable of providing the kind of defense (namely, counter-strike, mutually assured destruction, etc.) that nuclear weapons provide, but it cannot provide the kind of defense provided by a personal hand gun in an acceptable way. Still, this seems like a "slippery slope" for a libertarian and it is difficult, I think, to draw a principled line anywhere along it. Perhaps someone else has a better idea?
A while ago, in a post on abortion, I had a brief discussion with Jeremy Pierce about the distinction between rights and obligations. Since we are discussing abortion again, I thought now would be a good time to clarify what I mean by this distinction. I will also discuss briefly how this applies to the abortion debate.
First and foremost in this distinction is this: rights belong to the province of public or political morality, whereas obligations belong to the province of private or individual morality. Political morality has to do with the existence and nature of morally appropriate government, what it may and may not do, what people may do to one another, etc. Rights belong to this realm, because it is morally permissible, in terms of political morality, for you or your agent to enforce your (negative) rights against me. If I violate your negative rights, you or your agent (e.g., the government) may punish my transgression. Obligations do not belong to this realm, because it is not morally legitimate for you to force me to fulfill my moral obligations, even my moral obligations as regards you - with the exception, of course, of my obligation to respect your rights.
That paragraph might be a little opaque, so let's take a real example. I believe that the rich have a moral obligation to help the poor, but the poor do not have a right to the assistance of the rich. What this means is that if a rich person fails to use his wealth to help the poor, this is a moral imperfection, i.e., a sin. However, because the poor do not have a right to his assistance, they have no legitimate political grievance against him, and neither they nor the government may justly punish him for his immoral behavior, because this is a matter of personal morality. On the other hand, the poor have a right of self-ownership, which includes a right not to be forcibly enslaved by the rich. If the rich do enslave the poor - literally enslave them, and not merely "exploit" them in the Marxist sense - the rich not only act immorally, but transgress the rights of the poor, and therefore the poor or their agents may justly punish them.
Now, the situation begins to get sticky when individual morality and political morality cover the same area in seemingly contradictory ways. For instance, Christians are commanded to "turn the other cheek" to someone who assaults them (Matthew 5:39), but, according to my (libertarian) political theory, they have a right to exact punishment. What this means is that there is a case in which a person has a right to do something, but an obligation not to exercise that right. This is indeed a little sticky, as I said, but it is not terribly troubling. After all, it is easy to see other similar cases that are more straightforward. For instance, I have a right of free speech, but there are some things that it would be immoral for me to say. So there may be some cases where a person has a right, while at the same time has an obligation not to exercise that right, or perhaps not to enforce that right against those who violate it. No problem.
Now, as to abortion, like I said I just want to sketch how this distinction will apply to the debate, not develop a detailed account of the morality of abortion. I think it is absolutely indisputable that a couple who voluntarily and intentionally brings a child into being has a moral obligation to care for that child and bring it to healthy adulthood insofar as they are able, even from before it is born. I think that, while not as indisputable, this is equally true in cases where the couple did not intend to create a child, but nevertheless does so by engaging in consensual sex. In fact, I think it is probably the case that the parents of a child have such obligations in all cases, even rape and birth-control failure. However, in order to justify illegalizing abortion (or even exposure of infants!), it is not sufficient that the parents have such obligations; the baby must have a right to their care, or at least a right to the use of his mother's womb until birth, and this is difficult for libertarians, because this looks, on the face of it, like a positive right, which libertarians, including myself, don't believe in. In order to establish such a right, we would either have to say that the parents somehow took that obligation upon themselves voluntarily (which will be difficult to say in the case of failed birth control, and impossible to say of a woman who was raped), or that this is somehow, contrary to appearances, actually a negative right.
If we wish to take the second route, it may have profound consequences for our overall understanding of private property. For instance, we may say that if someone comes to be on your property through no fault of his own, expelling him from your property in such a way as to physically harm him constitutes an act of aggression against him, and therefore violates his (negative) rights. This will then also apply to the fetus's presence in the womb. This doesn't seem like a bad position for a libertarian to take overall, but I'm having trouble seeing clearly what, if any, are the ramifications for the case of, for instance, forcibly expelling a burglar from one's house. In this case, you are defending against an act of agression, and this makes our exercise of force acceptable. If the person didn't know he was trespassing, or something, he wouldn't be agressive, and therefore we couldn't expel him by force in such a way as to harm him. Sounds good to me. Interestingly, the Talmud (don't ask me for the exact citation, but I know I read this in Jewish Law class freshman year) says that when the mother's life is endangered, the fetus becomes an agressor, and describes in graphic terms cutting the fetus to pieces in the birth canal in order to save the mother's life, saying that this is not only permissible, but obligatory, but nevertheless prohibits abortion in the general case.
At any rate, my general point is this: if the parents have an obligation to the fetus to care for it, abortion will be immoral, but only if the fetus has a right to the care of the parents will the illegalization of abortion be legitimate. I do, in fact, think that the fetus has such a right, in addition to the parents' obligation, but I think that the right is much more difficult to establish than the obligation.
Syndicated columnist and ABC news reported John Stossel has an editorial at TownHall.com (HT: WorldMagBlog) on the benefits of introducting free market competition to the primary/secondary education system through a voucher-type system. Most of the points he makes are obvious - as economists say, idealized free markets lead to Pareto-optimal states, and competition brings a system that much closer to the idealized free market - but the article is nevertheless worth a read. In short, under the competitive system "Bad schools will close and better schools will open. And the better schools won't all be the same." Stossel points out that no one can predict exactly what will happen in a free market, but we do know that the best ideas win out. He also gives some helpful real world examples of things that have already been tried. Check it out.
One of the key problems of strict (non-consequentialist) libertarianism is how the state is to successfully perform its function of protecting citizens from force or fraud without the funding acquired from confiscatory taxation schemes. The problem is that libertarian commitments in the region of political morality do not permit the government to violate the private property rights which individuals have in the hypothetical "state of nature," and in the state of nature individuals own all of their income, not just what's left after taxes. The government exists to enforce these property rights. Robert Nozick believes (see his book Anarchy, State, and Utopia) that the libertarian state is in fact itself a sort of business, the "dominant protective agency" in a given region. He argues from economic principles that an Adam Smith "invisible hand" process will lead to the existence of exactly one protective agency in any given geographic region, where a protective agency is a company whose sole or primary purpose is to enforce the (negative, libertarian) rights of its clients. Of course, such a company's clients must voluntarily choose to pay it for its services - the agency may not coerce this payment from anyone who doesn't wish to purchase its services. Nozick has a lengthy discussion of just what happens when an individual living within the protective agency's bounds chooses not to purchase its services. The short version is that Nozick believes, not implausibly, that the protective agency may prohibit people before the fact from performing "risky procedures" - that is, from doing things that have a high risk of violating the rights of its clients - rather than merely exacting punishment afterward, provided it gives just compensation to the affected party for the disutility it causes him. So, for instance, if we prohibit blind people from driving cars because there is a high probability of them injuring people other than themselves, we must compensate them for any disutility associated with the prohibition. (Of course blind people presumably wouldn't gain much utility from driving cars, since they would probably die.) Now, on the same grounds, the state may prohibit non-citizens from using risky procedures (or procedures it doesn't know to be safe) for determining the guilt or innocence of its clients and subsequently punishing them. For instance, if I am a client of the protective agency and you are not, and someone steals your television and you determine by reading tea leaves or chicken entrails that I am the guilty party and attempt to punish me, the protective agency may prevent you from doing so without first determining whether I am, in fact, guilty, but it must first compensate you for any disutility associated with this prohibition. The most sensible way for the state to do this is to agree that, although you are not its client and do not pay its fees, it will enforce your rights whenever they are violated by its clients (if you are violated by another independent or by a foreigner, you are on your own, unless you decide to pay the protective agencies fee).
Now, this model works, more or less, but there are a number of things that libertarians agree with everyone else are good that it is very difficult to accomplish on this scheme. For instance, it is good to preserve some wildlife habitats, it is good to provide education to everyone, it is good to end racial discrimination, it is good to break up or eliminate abusive monopolies, etc. In general, however, libertarians are quite adamant that these things are not the job of the government, and can be acheived in a "free market" sort of way, if enough people care, and of course they are right. That is, if enough people care, we can set up private foundations to preserve wildlife habitats, we can create private schools with scholarship systems for poor children, etc. Most people are (rightly) skeptical of the claim that this would actually happen, human nature being what it is, but the libertarian responds that the fact that people would not voluntarily give their money to these causes only strengthens his claim that it is wrong to take their money by force.
What I wish to examine here is the question of a particular way in which a libertarian state might justly acquire surplus wealth, and what it might justly do with it. My discussion will center around the concept of the limited liability corporation.
In the state of nature, there are no corporations. The defining feature of a corporation is that it is a "legal fiction" in which a company is treated as if it were a person. In the state of nature, all companies are sole proprietorships, unlimited liability partnerships, or joint-stock corporations (the latter two needing only contracts between the owners to work, no government cooperation is required), and the owner or owners (or perhaps in some cases some or all of the employees) have complete legal responsibility for all actions of the company. There is no distinction between company assets and individual assets. After all, companies are merely figments of our imagination, and the actions are in fact taken by people. (These considerations have the interesting consequence that on the Nozick model we can imagine a protective agency being a sole proprietorship, and thus we in fact have the theoretical possiblity of a libertarian dictatorship! Although he frequently uses the phrase "protective agency," as I have been, Nozick seems to favor the idea of a "protective association" where we all come to one another's aid, and the idea that this might grow into a case where we all put some money into the pot and hire police, etc., with it, which gives us the more familiar libertarian democracy.) Now, the protective agency, or rather, its members, may enter into contracts, as anyone may, on the libertarian understanding. Suppose the protective agency creates a class of contract called Type C contracts, that look like this:
Any group of people jointly owning a company (an unlimited liability partnership or joint-stock corporation) may apply to enter a contract of Type C with the state. Such a group of people will be called "stockholders." Henceforth the state will treat the company as though it were an individual person, giving the company the ability to own property, be a party to contracts, and so forth. The state will hold the company responsible for its actions and contractual obligations, the stockholders having no liability in such matters.
May the libertarian state do this? It seems so. But what about the independents (i.e. those who are not clients of any protective association)? Suppose a corporation violates the rights of an independent. The independent is not a party to the contract forming the corporation, and so from his perspective his rights were violated by an individual - the corporation does not actually exist. The state, however, prohibits him from punishing the individual who violates his rights. The state, in exchange for his observation of the prohibition has agreed to enforce his rights for him. On the other hand, the state has an obligation not to hold the stockholders liable for the corporations actions. So the state must then confiscate the corporation's property, and not the stockholders' individual property, and thus force the corporation to make restitution to the individual. It may be further necessary to punish the corporation somehow. The independent should be satisfied with this provided that (a) his property is restored, or he is justly compensated for the violation of his rights, and (b) the individual who is actually guilty is seen to be punished in the course of the punishment of the corporation.
Now, what if the corporation is unable to make restitution; that is, what if it is bankrupt? The state's contractual obligations prohibit it from exacting punishment on any of the individual stockholders for the corporation's actions; it may not confiscate the stockholders' personal property to pay the corporation's fine, but it must nevertheless see that restitution is made to the independent. Where is the money to come from?
In order to avoid this situation, the state might require, as a term of the contract, that corporations carry liability insurance, which they might purchase from the state (since it is, after all, the state who is required to come up with the money to make restitution to the violated independent), or another corporation, or a private individual (provided the corporation or individual were capable of making the relevant gaurantees). None of this necessarily occurs if the violated individual is a client of the state, because in this case that individual is a party to the contract and has agreed to treat the corporation as a person; thus, from his perspective, he was violated by the corporation, not by an individual, and if the corporation is bankrupted and ceases to exist it is as though the individual who violated him has died, leaving no estate and having no heirs. He cannot justly expect to receive any restitution. Of course, I say necessarily. The state could, and probably would, define the contract with the stockholders, and also its contracts with its individual clients, such that its clients received the same or better treatment, as compared to independents.
What this discussion points to, to me, at any rate, is that it is the state that creates corporations and thus the state may define the contract which corporations must accept in any way it chooses without violating anyone's libertarian rights (provided it keeps its obligations under the contracts it has previously been a party to). Suppose, therefore, that the state says, "in order to enter this contract, the corporation must pay X% of its profit in taxes each year." If people don't like the terms, they will not form corporations. If, however, very large and profitable corporations DO form, the libertarian state - which, you will recall, does nothing other than protect its citizens from force or fraud - may find itself in possession of a great deal of money. Now, since the state is making an offer to potential stockholders of corporations, and can make whatever offer it chooses, it could do lots of other things as well. In an extreme case, it could reserve the right to change the contract whenever and however it saw fit. Presumably no one would sign that contract. Perhaps instead the state would specify that when it makes such changes a limited liability corporation may choose to revert to a joint-stock corporation rather than accept them. If the government changed its offer over time without changing old contracts, it would have the effect of putting corporations formed at different times on different footing, which would have interesting (probably bad) economic effects.
Suppose the government wanted to institute in this way some of the things libertarians complain about most; say, income tax and affiirmative action. Of course, in this case the government wouldn't technically be taxing an individual's income; rather, it would be taxing the corporation on its pay to employees. In the affirmative action case, again, the government would merely say "if you don't want to treat people of various races equitably (according to our definition of equity) don't accept this contract." No one's rights are violated, per se. Most libertarians can be expected to respond with the charge of reverse discrimination, but, of course, the government could just as easily require corporations to treat races unequally. This would be an injustice in some important sense (as would reverse discrimination), but the government would not exceed its authority or violate anyone's libertarian rights. Moreover, we must remember that the government we are discussing is not the titanic state common today, but rather small and limited in power. Presumably if the government enforced unfair hiring practices on corporations, principled people would not form them. Since sole proprietorships would not pay the same kind of additional taxes corporations did, they might be on equal footing. However, if there was a serious social problem, our hypothetical government might try to address it by this sort of means, just as real governments have sometimes begun by enforcing standards on their own hiring practices, rather than on the hiring practices of everyone in their country. I'm not completely convinced one way or another as to whether the government ought to do such things, I'm simply arguing that its doing so would violate no one's libertarian rights.
Now, in addition to the extra power the government has gained by being able to define the agreements which form corporations, the government has gained a great deal of money. Whatever it does with this money, if it behaves just as any group of people is permitted to behave, and it honors its contractual obligations, it will violate no one's rights. The government could enter competition with private businesses in various industries, it could start it's own schools, it could offer scholarships to private schools, and so forth. These would violate no one's libertarian rights. The government could also help the poor, or set up orphanages, or other similar social programs, or depending on exactly how it was constituted it might distribute the surplus back to its clients equally. In the case of the familiar libertarian democracy, the clients of the protective agency would also be joint owners of it, and so any profit it did not reinvest would go to them. As has been previously mentioned, there's no reason on Nozick's system why private ownership of the government would violate anyone's rights. Of course, I think that it would be a very rare individual indeed who could convince people not to opt out of such a government. I think some of the tiny principalities in Europe have extremely popular royal families who might perceivably get away with such a thing.
Of course, if the government used its excess money or its power to define the corporation to do things that someone strongly disagreed with, or if its activities "on the side" caused it to become less effective in performing its primary function as the dominant protective agency, people would begin to opt out in large numbers, and might eventually form a rival protective association, leading to a possible war. (Nozick envisions that one reason the market would lead to a single protective agency in a given area is that if there were more than one they would sometimes disagree on whether a given person was guilty, and they would fight wars as a result, with one side trying to punish him, and the other to protect him. Since the protective agency that most often won battles in a given area would, ipso facto, be better able to enforce rights in that area, it would win in the market as well as on the battlefield, and the lesser agency would go out of business, or be restricted to a different area.) This would result either in the serious diminution, or the complete overthrow of the formerly dominant protective agency.
I suppose that, at bottom, the most important point made by the above considerations is that according to libertarian theories of political morality (at least on the Nozick model), present day governments violate individual rights not because of the way the system is set up per se but, first and foremost, because the individual has no ability to opt out of the system. His options are (a) pay the government to protect him from events such as, say, someone kidnapping him and holding him against his will, or (b) being kidnapped and held against his will (by the government, in prison). In this way, libertarians hold, present day governments are not terribly dissimilar with mobsters who collect "protection" money - if you don't pay for protection, you will need to be protected from the so-called protectors! This, above all, is the nature of the libertarian objection.
In the comments to this post on recent attempts to insert intelligent design into public high schools as philosophy, Ed Darrell and I have been having a discussion about more general questions of public education. I thought it would be a good idea to write a piece about my general view of this subject here, since the discussion is looking like its about to get quite long and detailed.
As I see it, there are two issues here: the government's use of tax money to fund education, and the government's exercise of power over how education is done. Furthermore, there are two facets to each of these issues: the legal question (does the US Constitution grant the government this authority?) and the theoretical issue (should the government have this authority?). This makes a total of four topics for discussion. First, however, let's look at a more general question about taxation and the moral justification of government.
Mr. Darrell recently commented, "Paying taxes to education [of] children is not confiscation. Government by consent of the governed is not despotism. Democracy is not dictatorship." Now, there is a sense in which all of this is true. That is, there is a real difference between having your money stolen and used for private purposes for the benefit of the thief, and paying taxes to government which are used for the general benefit of society. There is a real difference between a government "of the people, by the people, and for the people" and a despot who holds power by force. There is a real difference between power being vested in the people, and power being vested in a single man.
However, I believe there is also another sense in which these distinctions are not so pronounced as people generally think. If we choose not to pay for the education of others, we are thrown in prison. In this sense, this type of taxation IS properly described as confiscation; the government applies coercive force to get our money and give it to someone else. "Government by the consent of the governed" is a misnomer: many years ago, the people of this country willingly established our government, but people today are not permitted to "opt out." If someone attempts to remove himself from the social contract (as people, in fact, have), the government applies coercive force to them. I, personally, were I offered the choice, would choose the US government as it is presently constituted over anarchy (although I see much room for improvement in the present government). However, the fact that I would give you money if asked gives you no right to steal it without asking. My rights are violated simply because I have no opportunity to make the choice of whether to give it to you or not. Not ALL of the governed consent. Absolute democracy has been called "the tyranny of the majority," and it might as well be called "dictatorship of the majority." This is why we have a constitutionally limited republic instead. Only those constitutional limitations ensure that our democracy is better than dictatorship. Democracy can, in fact, be worse than dictatorship, because the mob has no direction. It is entirely unpredictable and sways back and forth depending on the mood of the moment. Dictators tend to at least pursue definite ends (although, of course, this can make them worse rather than better, if those ends are evil), rather than to act completely at random. It is the constitutional limitations of our republic, protecting unpopular opinions and limiting what the majority may dictate, that ensures the superiority of our form of government over ditatorship.
Back to the issue at hand. Public education is obviously a good thing. That is, it is good for just anyone to be able to go get an education, and not only the rich. But in this country when we speak of "public education" we don't just mean education available to anyone, we mean socialized education. There are other ways of implementing public education that don't invovle government control, as for instance scholarships offered by private universities and independent charities. These have existed on the primary and secondary education levels as well. However, they have never been good enough to make education truly public, as the socialized system has. I believe that they could be good enough in a culture that placed enough value on education that many many people gave to these charities, but they never have been. As such, I want to make clear that, despite the discussion below, I wouldn't want to suddenly abolish the current system. However, I do think that it is deeply flawed, both in areas of legality and in areas of political morality. Let us discuss the issue at each level off government at which it might be addressed, in turn.
First, the federal government. The federal government has only the authority explicitly granted to it by the Constitution (as the 9th and 10th amendments make clear). The Preamble to the Constitution does not give the government an unlimited power to, for instance, "promote the general welfare." Rather, it merely states that the founders believed that by organizing the government in the way they do in the main body of the Constitution they could "promote the general welfare" and acheive the other ends listed in the Preamble. The subtext, it seems to me, is that if they have failed in these ends, they invite us either to use the amendment process, or to get rid of the Constitution and start over. The Preamble is merely a statement of purpose. Nor does the federal government have unlimited power to make laws which it deems "necessary and proper" - if this were the case, Art. I Sect. 8 of the Constitution would be unnecessary. Rather, Art. I Sect. 8 Para. 18 says that the legislature may "make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." (emphasis added.) That is, it may make the laws that need to be made in order to make effective use of the powers given to the federal government elsewhere in the Constitution. In a recent marijuana case, Justice Scalia, who has a very conservative (not in the sense of Republican, but in the sense of restricted) reading of this section in general, ruled, for instance, that prohibiting the transport of marijuana across state lines was part of regulating "interstate commerce," and that, because the government could not easily do this without prohibiting marijuana altogether, prohibition of marijuana was "necessary and proper" to "regulation of interstate commerce." But the necessary and proper clause doesn't just say the the government can do whatever it deems necessary and proper. It must be necessary and proper to the exercise of some authority the government has elsewhere.
Now, there is no mention of education in Art. I Sect. 8. I therefore conclude that, on the legal issue, the federal government has no power to give money to education or to regulate it in any way, except of course for regulations on interstate commerce, which may cover "distance learning" programs where the student and the university are in different states, or boarding schools paid for by parents living in another state, or similar circumstances.
Now, how about the moral issue? One person is forced to pay taxes to finance another's education. I see no moral justification for this whatsoever. Sure, I ought to be willing to voluntarily assist with the education of others, but this doesn't justify the government in forcing me. Furthermore, education, especially at the primary level, necessarily involves some degree of indoctrination, and government control of how children are indoctrinated is a serious violation of the rights of parents, especially when the governnment requires children to attend school. Since the No Child Left Behind Act took effect, the federal government does exert a degree of control over primary and secondary school curriculum, and this is a bad thing.
On to the state level. The 10th Amendment makes it clear that the state governments have powers which the federal government does not. As such, it may be the case that a state is legally justified in running a public education system, depending on how its constitution is written. Nothing in the Federal Constitution seems to prohibit this, as long as it cannot be construed as depriving anyone of liberty, which would make it run afoul of the 14th Amendment.
As for the moral issue, I don't see how it is any different on the state level than the federal level, so I must continue to, in principle if not in practice, oppose (socialized) public education, even if it takes place entirely at the state level.
Finally, what if education was handled on the city level? This, I think, would be a great improvement. In fact, most control over education is on this level, and much of it is funded by property tax levys. If a person doesn't like living in a city, there are many states, especially in the western US, that have large areas that are not governed by any city council. This gives the "implicit social contract" argument real application in this situation.
Suppose public education was controlled and funded entirely on the city level. Here I believe that, because of the extra strength granted to the "social contract" argument by the possibility of "opting out," the system could have moral justification. If you don't like what one city does, there are many cities and there are areas that are not in a city. Furthermore, cities could choose whether or not to admit people who do not live in the city and do not pay property taxes. Some cities who were feeling charitable would no doubt admit everyone. Others might not admit outsiders, or might charge them tuition. This would also create better free market competition between schools, since every one could do essentially whatever it wanted. They would all want to have better placement records in colleges and jobs, and parents would want their children in the best one. Schools would be free to innovate in order to acheive this end. This, I believe, would be much better than what currently exists certainly morally, and possibly also practically.
I am a regular reader of the New York Times, and I must admit that I often sympathize with the assertion of many conservatives that the Times is biased toward the Democratic party. However, I think this concern is much overstated. The Times routinely portrays both sides of issues on the Op-Ed page, and also in factual reporting. Biases of omission, or phrasings that seem to make value judgments rather than report fact, do occur and tend to occur in a decidedly liberal direction, but if there is real persistent bias in the Times, I would say that it has to do primarily with the persons they choose as representatives of various positions and people-groups. For instance, the Bush administration is taken to represent all conservatives (sometimes even all non-Democrats), Pat Robertson is taken to represent all Evangelicals (sometimes even all Christians), etc. When the debate on certain issues is represented as being between the Bush administration and a few leading Democrats in the Senate, without considering other positions, biases of omission that make both sides appear extremist and tend to motivate alarmist positions are a common result. What I want to point out here is a one-line comment about abortion in this article about the Alito hearings. After reporting some sensationalist remarks by Senator Durbin to the effect that Alito might become a decisive vote illegalizing abortion because of his statement some years ago that abortion was not consitutionally protected, the Times comments, "Overturning Roe would not make abortion illegal but would leave the question in the hands of states."
Now the staff editorialists of the Times are, I would say, even more vehemently anti-federalist than anti-Bush. I remember seeing a staff editorial during the Roberts hearings about how the increasing federalism of the Supreme Court could undermine all the functions that we have become used to the "national" (I hesitate to use the word "federal") government performing. However, this comment is very well placed, and brings about a very important question. Why is this outcome so unacceptable? After the re-election of President Bush, many liberals began to make sarcastic remarks about "blue states" seceding. If liberals are so opposed to living under the rule of the Republican leaders the majority of the nation elects, why is it that they are also opposed to limiting the power of those same leaders, and leaving decisions about these divisive issues on the state level? Everyone seems to see the abortion debate as centering around the Roe v. Wade decision and I don't understand it - Samuel Alito doesn't seem to either. Alito keeps saying that Roe was substantially modified, though also substantially upheld, by Planned Parenthood v. Casey. Furthermore, these decisions are about what the government can and can't do. Why are liberals so afraid of allowing this issue to be decided by the proper legislative process? Why does it belong in the judicial branch?
The above notwithstanding, I think there does exist a good reason why the Supreme Court has been making deicsions on abortion: it is indeed, just as the fanatics on both sides point out, an issue of rights. The question is really about whether the fetus has a right to life and whether this right trumps the mothers right to exclusive control of her body, and this is a very difficult issue. It seems to me that even if the fetus was not a person but only a potential person, it would have at least some rights, and these rights would probably increase as it went to term (Jewish law sees the issue this way). However, it seems to me that it makes a lot of sense to say that the fetus is a complete person from the perspective of legal rights from the moment of conception (the fetus is at this point a living organism with unique human DNA, and that seems like a reasonable definition of person for the purpose of legal rights), and if not at conception certainly at first brainwave (although this makes the issue far more difficult, as not all fetuses have their first brainwave at the same number of weeks after conception, and detecting brainwave activity is difficult). This makes the case (at least after first brainwave) like the case of an unwanted guest who somehow comes to be in your home through no transgression of his own (e.g. he stumbles in during a blizzard, quite by accident). Now, certainly it would be wrong to actively kill this individual in the course of removing him from your house, which, I understand, is what happens in "partial birth" abortions. But what if you remove him from your house, back into the blizzard, without your personally doing any active harm to him, but knowing that he will die of exposure? Certainly this is immoral, but ought it to be illegal? I lean toward yes on this issue, but I'm not entirely sure. The thing to do, if you are unwilling to take care of this person, is to call the police to come and get him. But what would happen in a "state of nature" with no government? Or what if the police can't get there? How long are you expected to keep him in your house? If there were no police, would you be expected to find someone else to take care of him? If he had a "right" to be taken care of in that way, that would be a "positive right," therefore he has no such right. Furthermore, there is no real analogue to just calling the police in the abortion case (although we can imagine a situation in which the government or some charity will pay for the cost of removing the fetus and transplanting it to a willing host, and technology is not far from being able to make this happen, I think), so what happens here? Does the analogy break down at this point?
Weighing these kinds of questions about rights is one of the primary things that the Supreme Court does, and so it certainly makes some sense that abortion cases would come before them. However, the Supreme Court is only supposed to deal with rights protected by the Constitution, not with all "natural rights" (although one may claim that the 9th and 10th amendments are intended to protect all natural rights) - if we discover new natural rights that aren't in the Constitution, we should amend it. The Supreme Court may be right to say that if a woman is prohibited from having an abortion in a case where she will die if she does not, she is "deprived of life ... without due process of law," but does the fetus have due process rights as well? This at least is an issue of Constitutional interpretation and belongs in the Supreme court. The first section of the 14th amendment reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Suppose, however, that the fetus is not protected by the 14th amendment (or any other part of the Constitution), and that the mother's life is not endangered. How is this now a constitutional issue? Why should the Supreme Court make decisions in this case? Does anything in the Constitution really have to do with this decision? If not, it should be decided by legislatures, preferably on the state level (unless Article I Section 8 gives some kind of authority to the federal government to handle the issue).
These are just some thoughts, and not necessarily a considered position. I think this issue is much more complicated than most people on either side want to admit and, further, that the Bible is not so clear as most Evangelicals want to admit (most of the arguments from Scripture I've heard would lead to the conclusion, once taught by the Catholic church, that there was a moral duty to attempt to ensure that every time a man ejaculates it results in the creation of a child, since the Bible is always saying that God knew us before we were conceived, see e.g. Jeremiah 1:5, Psalm 139:16 - this is of course also connected with the theory of Van Leeuwenhoek and others that humans are "pre-formed" in either sperm or ova). As I said, I lean toward the position that the fetus is a person from conception and should therefore be protected, I just think that there is more room for doubt than most people want to acknowledge. This gives rise to the question of what the government ought to do when acting under uncertainty in cases like this, an issue I hope to address in a later post.
Hammer of Truth reports today that New Jersey has been added to the list of states banning smoking in "public buildings." Washington is also one of these states. Philadelphia tried to pass a city ban some time ago, but I believe it failed (I'm not entirely sure). Now, there are two things I want everyone to know about these smoking bans: (1) they are unjust, because they violate the private property rights of restraunt and bar owners, and (2) they are unnecessary because, to the degree that people actually want non-smoking establishments, the free markent provides them.
I do not have a problem with prohibiting smoking on public property, such as streets and public parks. If we-the-people own the land, and we-the-people don't want to inhale smoke when we are walking around on it, then we-the-people should prohibit smoking there (but how does the government come to acquire land justly?). So far so good. But, in general, we-the-people do not own restraunts! Restraunts are owned by private individuals, very much the way you own your home. We-the-people don't get to take a vote on what you can do in your home, because it's your home, not ours. We write, for instance, indecent exposure and obscenity laws regarding public streets, because we don't want ourselves or don't want our children to see certain things. We don't tell you what you can or can't wear, not wear, or say in your home. If we did, it wouldn't be your home. This kind of distinction has been wearing away for some time in this country, but it is not altogether gone, and it must be revived if we are to retain any of our liberties. Restraunt and bar owners have the right to decide whether they will allow smoking inside their establishments, and if you don't like it you have the right to leave. Period.
Now, most of the discussion on this subject has centered around not the consumers, but the employees who are required to breath second hand smoke as part of their job. To them I say, if you don't like it, you have the right to quit. This sounds callous, I know, but the real issue is this: you are a bartender in a bar that permits smoking and you make, say, $10/hour (I have no idea how much bartenders actually make). This means that someone values an hour of your work serving drinks in a smoky room at $10. If you accepted the job, then you must believe that your life breathing second hand smoke in a bar while mixing drinks and making $10/hour is better than your life without this job (or with any other job you were offered), so, by offering to let you breathe second hand smoke in his bar, the bar owner improves your life, according to your own standards. What are you complaining about?
Now, I mentioned that the free market takes care of these things. First, let's look at it from the perspective of consumers. Many restraunt goers don't want to inhale second hand smoke. Some people won't even go to a restraunt that smells like smoke. Many more will prefer a non-smoking one over a smoking one, and perhaps even be willing to pay more for the non-smoking restraunt. As a result, before the issue was ever regulated there were many non-smoking restraunts, and non-smoking sections in larger restraunts. This has not been the case with bars. As far as I know (I don't go to bars) there are very very few non-smoking bars in the world. Apparently, there is much less demand for non-smoking bars than for restraunts. If 51% of all bar-goers wanted bars to be non-smoking, there would be all kinds of non-smoking bars out there! In fact, there are only a few. This indicates that most bar-goers don't mind the smoke, and many of them even want to be able to smoke while they drink in bars, so in these bans we must have a bunch of people who don't even go to bars legislating what people who do go to bars can and can't do when they get there. Lovely.
Now let's look at the employees perspective. As I mentioned, the employee believes that his life is better with the job than without, even if the job requires inhaling second hand smoke, or he wouldn't have taken it. It seems perfectly possible to me that in some localities the free market determines higher pay for waiters in smoking establishments compared to non-smoking establishments, because most waiters would prefer not to breathe the smoke. However, some waiter may decide that he prefers the extra money to his health. We might chide him, and say that this decision is unwise, but he nevertheless believes that his life is better facing the health risks and receiving the extra cash than not breathing smoke and getting paid less. Who is the government to tell him how to live his life and what risks he may take? If just as many people would go to restraunts and bars if they were non-smoking, and those people would pay and tip just as much, there would be very few (or no) restraunts or bars that allowed smoking, because no one would be able to make a larger profit by permitting it (since there certainly are some people who won't go if the restraunt/bar permits smoking). That means that permitting smoking in some establishments increases the number of waitresses and bartenders who are employed, and the total amount of money paid to waitresses and bartenders in this country. Perhaps many of them think that it isn't worth it to inhale the smoke. If this is the case, then they will choose to accept lower pay from non-smoking establishments rather than work in smoking establishments, which will reduce the profit margin of the smoking establishments, compared to non-smoking ones. If enough employees think this way, it will become unprofitable to permit smoking, thus creating a de facto smoking ban. On the other hand, the restraunt and bar workers could unionize and make these demands about working conditions. (Ignore government recognition of unions, because when the government recognizes them they become EVIL. Our good union uses strikes and negotiations with management, not government coercion, to get its way.) If they were able to maintain solidarity, they would win. But if some people preferred to work under the poor conditions, or if the restraunts found it was more profitable to just hire and train new waiters and bartenders, they would lose. This is the way capitalism works. We all get to use our money and our time and our assets to influence the marketplace according to our preferences. We don't use our votes to do so. THAT is socialism, and it is the end of freedom.