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.
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.
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.
Today's New York Times has an Op-Ed entitled "Can I Get A Little Privacy?" in which Dan Savage argues that Democrats should propose a constitutional amendment to gaurantee a right to privacy. He goes on to claim that Republican opposition to the amendment "would alienate not only moderates, but also ... libertarian, small-government conservatives." Really? As I've discussed before, right-libertarians (and he certainly isn't talking about left-libertarians of the ACLU variety - what do the Republicans care about them?) are by definition opposed to the concept of "positive rights." Now, perhaps Savage has in mind a wording that would turn privacy into a negative right, as in "the right of the people to be secure against invasions of their personal privacy shall not be violated" (isn't that already in the fourth amendment?), but this has little to do with Roe v. Wade. In fact, the fourth amendment (and any amendment creating a "negative right" to privacy) makes enforcement of laws against abortion singularly difficult, but not impossible. The governnment would be required to show probable cause that something illegal had been done before looking at medical records, and this would be overseen by the judiciary. This means that a law prohibiting early abortions would be almost entirely unenforceable, but that does not make the law invalid. For instance, it is almost impossible to convict someone of treason in the US because of the criteria and standards of evidence involved, and these criteria are set up by the Constitution, but that doesn't make treason laws invalid.
Now, perhaps the liberals have in mind an amendment specifically keeping the government "out of the bedroom," as it were. This would be likely to garner support from libertarians. Would this cover a right to abortion? It would be debateable. (If it obviously and straightforwardly did, then it would cut down on the number of libertarians who supported it, because libertarians are deeply divided on this issue, due to the difficulty of determining whether the fetus is a person with rights.) To his credit, Savage does acknowledge that even with whatever amendment he has in mind, the issue would remain unsettled.
Personally, more in light of Guantanomo Bay than in light of the abortion issue, I've been considering the possibility of an amendment defining precisely who the Bill of Rights and other constitutional protections apply to, and this would certainly have some bearing on this subject, but that's another topic for another post.
They lead to crap like this. According to the mayor of San Francisco, "It is ... a fundamental right to have access universally to information" and providing wireless internet access for free to the city is " a civil rights issue as much as anything else." (Hat tip: Evangelical Outpost) Wait, civil rights? Wireless internet? Next you'll be telling me they have a "fundamental right" to own a laptop with which to use the wireless internet. Where the heck does this crap come from?
Libertarian and classic liberal political theorists believe that all of our rights are what are called "negative" rights. That is, we have rights not to have certain things done to us by others. We do not have "positive" rights - rights to have things done for us. The reason for this is that any system of positive rights is necessarily arbitrary, as positive rights will conflict with one another and with negative rights, and they require a government with lots of money to implement, so they cannot be seen as predating government. By contrast negative rights can be formulated in ways that make them perfectly consistent, and it is coherent to speak of them in the absence of government.
The "right" to wireless internet is a positive right. (Note: "Rights" in quotation marks are purported rights that I don't believe in. This is easier than writing "purported" and "would be" all the time.) Therefore libertarian or classic liberal theorists can conclude, just from that fact, that it doesn't exist. Certainly you can see how it is fundamentally different from the right not to have anyone interfere with your religious practices, for instance. Religious freedom is, essentially, a negative right (if there was a positive right to religiou freedom, it would require government to build churches/monuments/whatever as per the requirements of every citizen's religious preference).
All of the rights actually enumerated in the US Constitution are negative rights. The "right" not to be prevented from obtaining an abortion is a negative right. The "right" to be provided with an abortion at state expense is a positive right.
Now for some trickier issues: the "right" to universal healthcare is a positive right. Can you see why it can't work, or at least can't be a "fundamental" right? If there were no government, a "right" to healthcare would mean that one could walk into a doctor's office and demand treatment at no cost, but this would clearly violate the negative rights of the doctor, particularly his right to determine what he does with his time and skills. In the presence of a government, massive taxation would be necessary to pay the doctor enough to support this alleged "right." This money has to come from somewhere, and therefore, again, someone's negative rights are violated when his money is confiscated by force to pay for someone else's healthcare.
On an even more controversial note: the "right" to privacy is a positive right! Now, perhaps when John Roberts discusses the "right" to privacy, he merely means the negative right of protection against unreasonable search and seizure, combined with a few other provisions of the Constitution, but certainly in the Roe v. Wade reasoning the "right" to privacy is positive, and therefore faulty. Why is this? The right to protection against unreasonable search and seizure means that the government (or anyone else) will not come look through your stuff. This is a negative right: it says what other people CAN'T do. But privacy requires a lot more than this. Suppose you bought a glass house, or you live outside in a field, or in a cave without a door. If you have a "right" to privacy, then no one can look into your house, even though it is in plain sight. Furthermore, a "right" to privacy requires the government not just to not spy on you itself, or not to allow others to take certain types of actions, but to take active steps to make sure that you have privacy, as for instance putting a door on your cave. Roe requires that you have this kind of right: the government must actively ensure that no one finds out whether or not you used birth control or had an abortion. It is one thing for the government to protect you from people snooping around through your stuff, but quite another for it to be required to make sure you have privacy.
Furthermore, once you open the door for positive rights, there is no principled way of distinguishing between the "right" to privacy or healthcare and the "right" to wireless internet. Another mayor, somewhere in Colorado if I remember correctly, said a few years ago that cable TV was a basic necessity and not a luxury because some places have very poor reception. When you have a scheme of "positive rights" anything that society decides is a "necessity" becomes a candidates for the status of "fundamental right" and it suddenly becomes coherent to talk about wireless internet or cable tv as "civil rights" issues. How dumb is that?!