(Note: the title of this post is an example of the "underhanded rhetorical technique" I recently discussed, but I bet it got your attention. Now that I have your attention I will, as usual, try to avoid rhetoric and emotional appeals in the actual text of this post, and show why the position of the Times implies support for the police state.)
An editorial appearing in today's New York Times finally, at least, more or less understands the position of supporters of the Second Amendment as written. That's close to all that can be said positively about this little article. It begins with this line:
By now, the logic is almost automatic. A shooter takes innocent lives, and someone says that if the victims had been armed, this wouldn’t have happened. The only solution to a gun in the wrong hands, it seems, is a gun in the hands of everyone.
The point is that, while it would be ideal if we could trust our trained police to defend us, there are cases even where simple defense against criminals cannot be entrusted to the police. Furthermore, if someone is breaking into your house, the police can't get there as fast as you can go get your gun.
The Times asserts,
Those gun advocates who believe that the Second Amendment confers the right to carry a gun in public are quick to point out that they are law-abiding, decent citizens trying to protect themselves and their families in a world gone mad. But, of course, the guns can’t tell the difference. Arming more people would be a recipe for disaster.
But this can't be true. The reason it can't be true is that we live in a (constitutionally limited) democracy so that (excepting constitutional limitations) the will of the majority is the law. The majority is by definition law abiding. We need the government to be strong enough to protect the rights of the minority, but at the same time we have to recognize that if everyone has equal power, the majority comes out on top. When we ban guns, we have the effect of taking them away from only law abiding citizens. I hate to use this as an example so soon after the fact, but Virginia is a state where it is singularly easy to get guns, and VA Tech has a policy against carrying guns on campus. This policy is essentially unenforceable, since the campus is open. This means that people who care about following rules are disarmed, while there is absolutely no effect on people who don't care about following rules. This is a problem.
Now, I want to say that I consider myself a moderate on this issue for the following reason: in general, I support banning guns in locations where there is good reason to do so and it is possible to effectively enforce the ban without violating rights. I do not, however, think that an area as large as a city or town could possibly meet these requirements. An airplane, for instance, does. There are three reasons for this: (1) boarding of the airplane is highly regulated/limited, so it is relatively easy (at least possible) to remove guns from people as they board, (2) if a bullet pierces the hull of a plane (so I'm told) it is likely that everyone aboard will die, and (3) people don't have to fly on airplanes if they don't want to. Now, I think this should be the airline's prerogative and not the government's, since it is private property, but that's another story. Of course, it is the right of the owners of any private property (including the administrators of VA Tech) to ban guns on their properties, but what I'm saying is that these are the circumstances where it's a good idea. Similarly, when the government is the owner of a piece of property (e.g. national park land, federal courthouses, etc.) it may ban guns on its property, and in cases like the ones described (and only such cases) it should. In these cases, though, it would be a very good idea to have armed security gaurds in case the security fails. In the case of airplanes, I would be a strong supporter of developing weapons that don't pierce the hull and issuing them to pilots. If there is a compelling reason for banning guns in a location, then there must be some sort of security risk, and you should have gaurds anyway. You might as well arm them.
The Times, however, seems to think that the entire United States is a case like this, which is clearly not so. It doesn't meet any of the conditions mentioned. There is no good reason why guns should be banned from the entire country (some people use guns to commit crimes - like some people use cars or kitchen knives to commit crimes), and it is not possible to effectively keep guns out of the hands of everyone without effectively instituting a totalitarian government.
But where the Times really gets things wrong is in its last paragraph:
True safety lies in the civility of society, in laws that publicly protect all of our rights and in having law-enforcement officers who are trained in the use of deadly force, then authorized to apply it in rationally defined situations.
A brief note is, however, in order to show my uncertainty about one aspect of this issue: one doesn't seem to have a right to private ownership of just any weapon. That is, the government seems to have the authority to, for instance, prohibit private ownership of nuclear warheads. Why is this, and where does the right to bear arms stop? Two parts of this answer are that the government can realistically keep nuclear warheads away from everyone, and that nuclear warheads are not useful for self-defense. But there are some more difficult cases. Why doesn't one have the right to privately own a rocket launcher, or a tank? I suspect, at any rate, that one doesn't have such a right, but I could be wrong. On a Nozickian scheme, the idea might be something like the following: private ownership of these items constitutes a risky behavior, and the government can prohibit behaviors that are at high risk of violating the rights of its citizens, but it must compensate those it prohibits for their loss of utility. Nozick argues that this compensation will usually be "in kind" - for instance, the government must, according to Nozick allow people whom he calls "independents" to "opt out," but it will prohibit these people from enforcing their own rights against its citizens, so it must (morally) enforce their rights against its citizens itself (in order to be protected by the government from independents and foreign nationals, you must "opt in" and pay taxes). This, however, generally only works where there is a risk of accidental violation of the rights of others. So in order to prohibit the ownership of some weapon, you must argue that its ownership constitutes a risk to those around the owner, even if the owner does not try to use it against them, and then you must compensate the would-be owner for his loss of utility. So, for instance, if someone wants a rocket launcher for self-defense, but this is deemed dangerous to those aroud him, the government, in order to prohibit him from owning it, must show that it can and will protect him in any situation where a rocket launcher might be required. I hold that you really can't make a case like this for any type of ordinary firearm, especially because the government can't necessarily be there to protect you in every case, and it would be a little scary if they could, but you certainly can for nuclear weapons, and you may be able to for rocket launchers and similar items, so these will be reasonably prohibited. I doubt if anything like this will hold for so-called "assault weapons." Drawing the line is, however, a difficult issue.
In sum it is my position that the best case is that you don't need protection at all, but if this can't be had then the next best thing is that the government is fair and effective in defending your rights when you have need. However, the very worst situation is the case (which has happened in, for instance, South Africa, and probably also in some neighborhoods of DC) where the government can't or won't protect you and prohibits you from protecting yourself (whether by actually prohibiting self-defense, or taking away the means necessary for self-defense). Note that this worst case clealry includes the case when it's the government that you need to be protected from. Since there will always be some cases in which a (non-totalitarian) government is unable to protect you, any general ban on firearms will necessarily lead to at least some instances of this worst case, and must therefore be opposed.
It seems, over the last few months, that the U.S. Mint has suddenly been out to get the Liberty Dollar. This after years of investigations by the Secret Service and others which concluded that there was nothing criminal about it whatsoever. In the latest Liberty Dollar newsletter, which will be available on their web-site shortly, we read that "'threatening' letters have been received via certified mail by all the [regional currency officers] and [monetary architect Bernard von NotHaus] from Daniel P. Shaver, chief counsel for the US Mint." Also, NORFED, the organization behind the Liberty Dollar, has had their bank account closed under suspicious circumstances. This after the U.S. Mint suddenly reversed its position a few months ago and issued a public warning about the Liberty Dollar on its web-site.
Now, let me first say that I do not unreservedly support NORFED. I often find information in their newsletter misleading, and it is sometimes outright false. In my opinion, their biased propaganda is sometimes almost as bad as the government's. Furthermore, their positions are often quite extreme. Sometimes they come off as basically conspiracy nuts. However, there is one thing that NORFED has never misled anyone about, and that is that the Liberty Dollar is not US currency, not "legal tender," and not in any way backed or supported by the US goverment. In fact that is the whole point of the Liberty Dollar. It is not backed by the US government, it is backed by precious metals in a warehouse in Cour d'Alene, Idaho. Thus when people 'spend' Liberty Dollars, they are engaging in barter.
There are a number of issues here that greatly trouble me as a libertarian:
Thus what we see here is a manifestation of the progressive power grab by big government. I don't want to be an alarmist, but at some point somebody has to be, or it will never stop. I won't stand for the government limiting my right to participate in barter transactions, and you shouldn't either. I'm still contemplating what, if anything, I can do about it. One obvious solution is, of course, to buy more Liberty Dollars and use them, but that's getting to be more and more of a hassle and there's a greater and greater risk of legal trouble. It's not a very good form of civil disobedience either, since most people don't relate strongly to it. If the government was interfering with a book exchange, or the ability to trade in your car at the dealer or something like that people would get upset, but the Liberty Dollar doesn't quite resonate. Hmm... What a mess. For now, I suppose, we'll just have to wait and see what happens next. Oh, and vote libertarian.
In the comments to my first post on NSA domestic spying, Jeremy said,
This is exactly why I think libertarianism is completely nuts. If it's going to place some absurd sense of an absolute right to privacy so much higher than the extremely important obligation of the government to protect its people, then I want nothing to do with it ... It just seems silly to me to complain that my rights are being violated simply because information the government can already get if there's reason to suspect me of any criminal activity is more readily available in the event that such criminal activity is terrorism-related.
There are a number of circumstances we must consider: the most important question is whether the phone companies gave the information voluntarily or under threat of coercive force. In fact they must have given it voluntarily, since nothing happened to Qwest when they refused, but since Jeremy seems to me to think that the government should have been able to legally force them, we must consider both. The case where the government forces them is the easy case, so let's consider that first.
When the government undertakes a criminal investigation, it certainly violates no one's writes by going around asking questions. However, when someone doesn't voluntarily respond, warrants, subpoenas, etc., are issued. This is an application of coercive force. What justifies it? In US law, the justification is the concept of 'probable cause.' I don't understand law well enough to know exactly what this means, nor am I prepared to give a comprehensive philosophical account of the correctness or incorrectness of the law, but the basic idea seems to me to be clearly correct and in keeping with libertarian principles. The government can take your documents or time or whatever from you if and only if it can show that there is good reason to suppose said documents are relevant to its criminal investigation, and, if you turn out to be innocent (or were never suspected of wrong-doing in the first place) the government (or, better, the actual perpetrator) must compensate you for your loss of utility. There are a number of ways in which the government's spying on phone records involve loss of utility:
Now, back to the real world: the government did NOT apply force in seizing these records; doesn't that mean that it's just like asking questions in an investigation and having them answered? After all, the records do belong to the phone companies, don't they?
It is true that the phone companies could voluntarily release this information, and no one's rights would be violated, in some hypothetical world. Of course, when the customers found out they might, again, go to a different company. However, in the actual world, the phone companies are (probably, see below) under contractual obligation not to release the data to law enforcement except under threat of force (i.e. "as required by law"). I wasn't able to locate online the telephone privacy policies or BellSouth, only the online privacy policy, so it is possible that they are not in fact breaching contract, but here are some excerpts from Verizon's "Telephone Company Customer Privacy Policy:
As a rule, Verizon will notify you and give you the opportunity to "opt out" when we disclose telephone customer information outside of Verizon. In fact, we generally keep our records of the services you buy and the calls you make private, and will not ordinarily disclose this information to outside parties without your permission. However, we do release customer information without involving you if disclosure is required by law or to protect the safety of customers, employees or property. This is further explained below ...
Examples where disclosure is required by law or to protect the safety of customers, employees or property:
- When you dial 911...
- Verizon must disclose information, as necessary, to comply with court orders or subpoenas. Verizon also will share information to protect its rights or property and to protect users of its services and other carriers from fraudulent, abusive or unlawful use of services.
- We may, where permitted by law, provide information to credit bureaus ...
- Verizon also occasionally uses contractors to do work for the company. These contractors have the same obligations as our regular employees concerning customer information.
Those are all the cases given. Now, there are a couple of loopholes here: (1) Verizon might argue that the clause "or to protect the safety of..." includes terrorism investigations, and that the list of cases given are merely "examples" and not an exhaustive list, (2) Verizon might argue that the information was released "to protect users of its services and other carriers from fraudulent, abusive or unlawful use of services." As to case (1), the terms of the contract seem to be vague enough that they might possibly get Verizon off the hook like this, but it is through sheer vagueness, and not an actual agreement from the user. As to (2), it apppears that this only implies actually breaking the law in the manner in which you use the services, for instance, phreaking and the like. So, I would conclude that, while there is some ambiguity, there is enough here that we can assert (barely) that Verizon represent to its customers that their records will be kept private whenever possible. If this is indeed the case, and these are the circumstances under which users purchase Verizon's product, and the government then convinces Verizon to cooperate in this data mining operation, we can assert that the government and Verizon conspire to perpetrate and act of fraud against Verizon's customers. If, on the other hand, Verizon didn't represent this to their customers, then nothing is wrong here, from a libertarian perspective, as long as the government doesn't apply force in order to maintain a monopoly among phone companies who release data to the government.
This brings up another issue: surprisingly enough, from a libertarian perspective, I believe one must assert that any laws which prohibit the phone companies from doing this (see the list of lawsuits against Verizon at Homeland Stupidity - all the lawsuits seem to allege violations of laws rather than terms of contracts) violates either (a) the phone companies' property rights over the data, or (b) the freedom of contract rights between the customer and the phone company. That is, if the government prohibits the phone company from sharing its data with the government (doesn't that sound kind of weird?), it tells the phone company what it can and can't do with its property, restricting it with regard to actions that vaiolate no one's libertarian rights (that is, if you give someone a piece of information, without entering into an agreement with that person to keep the information secret, their revelation of that information to a third party does not violate any negative right), and if the government requires that the terms of the contract between company and customer include a clause like that, then they violate the freedom of contract rights of both company (or, rather, stock-holders - corporations are legal fictions and have no libertarian rights as such).
The government could, of course, voluntarily restrict itself from asking for or otherwise acquiring this kind of information, but has no obligation to do so. If the government did place such a restriction, it could make a permissible law that no agent of the government could acquire such information and then charge the relevant people in the NSA and at the phone companies with conspiracy to break that law. Things get even more complicated from this point onward, so I'm going to leave off here, but I hope I've given some kind of coherent idea of a tenable libertarian position on why this is such a huge problem, even for those who have nothing to hide.
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.
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.
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.