Archive for February, 2010

Thoughts About the Mount Vernon Statement

Wednesday, February 17th, 2010

Today at George Washington’s historic home, the leaders of several conservative organizations signed a document titled “The Mount Vernon Statement.” This document purports to restate the principles and ideas of the American founding and articulate a unifying “Constitutional conservatism.”

Although I agree with some of what this document contains, there are two statements which taint the rest of the project. These statements describe this proposed Constitutional conservatism as follows:

“It encourages free enterprise, the individual entrepreneur, and economic reforms grounded in market solutions.”

“It supports America’s national interest in advancing freedom and opposing tyranny in the world and prudently considers what we can and should do to that end.”

The first of the two statements makes me uneasy simply because it is so ambiguous. What is a policy agenda that encourages free enterprise and economic reforms grounded in market solutions? I can’t tell if this is an endorsement of laissez faire principles or more of the Keynesian economics that we have seen lately.

The second statement seems to endorse the position that the United States is justified in meddling in foreign affairs if it is “advancing freedom” or “opposing tyranny.” I would be much more comfortable with a statement like “provide for the common defense.” Alas, the Constitution’s language isn’t broad enough to justify foreign wars to secure commercial interests, so apparently the authors of The Mount Vernon Statement had to insert something more flexible.

Now I understand that this document is probably just an effort to reunite a conservative movement that has fractured over disagreements about fundamental issues. But the reunification that this document proposes simply ignores the problems. If these people want to build a political movement, they should try using plain language in the style of Ron Paul. You may disagree with what Ron Paul says, but it is clear what he stands for.

As of this writing, the document’s website states that over 7,500 people had signed to show their support. Maybe it will do some good, but I expect that The Mount Vernon Statement will be forgotten within the month.

More on the Healthcare Debate

Wednesday, February 17th, 2010

Today I attended a debate about the nationalization of healthcare. The panelists were Doug Bandow, senior fellow at the Cato Institute; Neville Cox, director of post graduate teaching and learning at Trinity College Dublin School of Law; and David P. Fidler, Professor of Law at Indiana University Maurer School of Law.

Surprisingly, the panelists agreed on many issues. All agreed that having health insurance tied to employment was foolish; that the present U.S. healthcare system was unsustainable and that radical changes were necessary to prevent serious negative consequences; that efforts to resolve the problems with healthcare at a national level will continue to be undermined by the substitution of political maneuverings for reasoned solutions; that there is no successful system of nationalized healthcare in the world; that the American people has an obligation to care for the poor and needy in its society; and that all healthcare systems demand uncomfortable tradeoffs.

Since I didn’t take careful notes and since my memory isn’t good enough to write a play-by-play account of the debate, I will simply summarize what I understood the panelist’s positions to be.

Professor Cox argued that the British healthcare system where the government provided health insurance was a good model, and cited statistics which place the United States at the bottom of industrialized nations in healthcare quality. He thought that the “public option” element of President Obama’s healthcare plan was essential to ensure that individuals with chronic healthcare problems requiring expensive care had access to insurance. He argued that healthcare was an area in which individual autonomy would have to yield to social need. He recognized that this would entail the rationing of healthcare and that government would have to make the rationing decisions—especially in areas where the likelihood of the patient surviving was low and the treatment costs were high. Overall he supported President Obama’s plan and hoped that it would succeed.

Professor Fidler began by trying to explain why the recent efforts to reform healthcare had failed. He argued that the public simply doesn’t believe President Obama’s claims that the healthcare bill would not require deficit spending. Government efforts to provide services in the past had always gone over budget—usually dramatically over, so the public simply isn’t willing to believe that healthcare would be any different. He almost scoffed at the idea that President Obama would be able to squeeze any real money out of the Medicare and Medicaid programs. Evidence of this is the fact that Congress passed a benefit cut to Medicare and Medicaid in 2002, but for the past 7 years they have postponed the bill’s effective date in response to political pressure. Professor Fidler also speculated that the public was genuinely afraid of radical change to their health insurance plans, and that the public did not believe Obama’s assurances that those who were happy with their current health insurance would see no change in the system. He also questioned, if healthcare were truly such a high priority for the country, then why would the Obama administration be unwilling to use deficit spending to fund it? Nevertheless, he conceded that the current health insurance system was badly broken.

Mr. Bandow of the Cato Institute was clearly used to debates of this kind. He had numerous facts and concrete examples at his disposal to illuminate his arguments. He began by clarifying the statistic that Professor Cox cited about the quality of United States healthcare. He noted that if accidents and violent crimes were eliminated from the statistical calculations, then the United States healthcare quality would rank in the middle range of scores from industrialized nations. Mr. Bandow next argued that the problems with United States health insurance were caused by perverse incentives: the patient is not directly paying the costs, and healthcare providers benefit from high costs. In other words, of the two parties who make decisions about what treatment a patient should receive, one doesn’t care how much it costs because the insurance company is paying for it, and the other wants the costs to be high because high costs yield profits. Consequently, there is very little incentive to reasonably evaluate whether a treatment is necessary or even beneficial before paying for it. This system drives up costs and wastes resources. Real reform, Mr. Bandow argued, will not simply provide more healthcare services to more people; United States citizens already consume much more healthcare on average than the citizens of any other nation. Real reform would place incentives toward efficiency on the individuals who were making the decisions about what treatment was necessary and what treatment was not. This would eliminate waste and reduce costs. This would also allow individuals rather than government bureaucrats to make the hard decisions about issues like end of life care and treatments with a low likelihood of success.

So there you have it. Three perspectives on healthcare reform. If any of the positions above seem unclear, please post a comment and I will try to clarify what the panelist meant.

Without going into too much depth, I just want to point out that except for the unanimous-but-indistinct affirmations that the United States has an obligation to care for the needy, none of the panelists argued from a basis of principles. Nothing was said about whether compelling individuals to purchase health insurance would violate important principles of individual autonomy. Nothing was said about whether granting government power to make decisions about medical care for individuals would violate important principles of individual liberty. Nothing was said about whether taxing the many to support the few would violate property rights. Are we too far down the rabbit hole to worry about such things anymore? Instead the panelists relied on consequentialist/utilitarian arguments grounded in economic theories about which plan would maximize healthcare overall.

Efficiency and Commerce for All

Thursday, February 11th, 2010

You probably own something which is worth more to you than the money you could sell it for. Wedding rings and family heirlooms are obvious examples. Suppose that this thing which you value so much had been damaged in some way, and you took it to a repair shop. Suppose that this repair shop, as is common, was in the business of selling as well as repairing items like yours. Suppose lastly that, because of mistake or malice, the repair shop sold your item instead of returning it to you. Certainly, you would want to recover your item and would expect the law to support your claim. After all, you have a right to your property, and when the repair shop sold your property instead of returning it to you, your property right was violated. Protecting property rights is one of the essential functions of government; in the words of the Declaration of Independence, “to secure these rights, governments are instituted among men.” But in the circumstances described above, your high expectations would be disappointed. Under current law, although you could sue to recover the monetary value of the item, you could not recover the item itself.

State law governing the sale of goods is based on a body of model statutes called the Uniform Commercial Code (UCC). Instead of arising from the usual legislative process, the UCC was written by two private legal organizations and then enacted—with a few modifications—by the legislatures of most states. See UCC Introduction. The provision of the UCC that would prevent you from recovering your item in the circumstances described above reads as follows, “Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in the ordinary course of business. … regardless of any condition expressed between the parties …” UCC § 2-403(2)-(3).

So we see that in some circumstances state law explicitly refuses to protect you from clear violations of your property rights. This isn’t earth-shattering news. It probably won’t make you jump out of your chair and start a revolution. Nevertheless, it is worth noting because this and other laws which work similar mischief are evidence of a dangerous trend in society’s view of property rights. Put simply, concerns about commercial efficiency have come to trump principles of justice.

The efficiency justification for UCC § 2-403 runs something like this: commerce depends upon low-cost transactions between buyers and sellers. If buyers were obliged to return goods that they had purchased under circumstances like those described above (a repairman wrongfully selling goods that were only entrusted to him for repair), then buyers could never be certain that they actually owned the goods that they paid for. This uncertainty about ownership would have inefficient consequences. For example, some buyers would pay to investigate whether the seller had actual ownership of the goods; some buyers would buy anonymously to avoid the risk; and some transactions simply wouldn’t happen at all. These inefficiencies and other consequences of uncertainty would stifle commerce.

I don’t know whether these efficiency concerns stem from sound economics, but it doesn’t really matter. The important question is not whether a law is efficient; the important question is whether a law is just. Just laws are the foundation of individual liberty because just laws recognize and protect individual rights. UCC § 2-403 is an unjust law because after implicitly recognizing a property right, it declines to enforce it. Sadly, this is not an isolated problem.

This substitution of efficiency for justice manifests itself in many other areas of the law. In real property law, for example, the U.S. Supreme Court ruled that the Constitution did not bar government from seizing the homes of private citizens and giving them to a corporation if that corporation could show that it would make more efficient use of the land. Kelo v. City of New London, 545 U.S. 469 (2005). In nuisance law, courts now allow individuals to damage their neighbor’s property through the creation of a nuisance if that nuisance produces economically efficient results. Boomer v. Atlantic Cement Co., 26 NY2d 219 (1970). These are only two examples of many.

Justice is the heart of good law. If we substitute efficiency for justice, law becomes nothing more than a manipulable mechanism for invoking government force. Justice is a foundational part of American traditions. Among the few phrases of the Pledge of Allegiance that have remained constant—and have not been the target of law suits—is the phrase “liberty and justice for all.” Do we really want to substitute such noble ideals with an uninspiring surrender like “efficiency and commerce for all”?

Whose Kids are They?

Tuesday, February 2nd, 2010

Efforts to describe the legal relationship between parents and children are usually messy and often offensive. Part of the problem is that it is difficult to classify parental rights. What kind of rights are they? Talking about parental rights as if they were property rights in children is distasteful, but that seems to be the usual framework—if only by way of analogy—that writers use. The fact that children grow up further complicates the discussion. When should parental rights end? Clearly the strength and scope of parental rights should decrease as the child becomes self-sufficient, but at what stage of development should that line be drawn, and who should draw it?

The problem is no simpler when considered from the perspective of a child’s rights. What rights can children enforce against their parents? Food, shelter, clothing, education, medical care, emotional health? Is it too extreme to characterize a child’s right to support as an indentured servitude of the parents to the child’s needs? Society recognizes children’s rights over their parents to some degree through child support laws.

This complex relationship of rights and responsibilities only gets murkier as third parties get involved. Doctors who disagree with parents’ medical decisions sometimes try to force parents to administer a prescribed treatment. Social workers take children away from parents they judge to be unfit—sometimes even when that judgment is based on soft criteria like failing to teach social mores. Legislatures and school boards enact compulsory school attendance laws and then grant parents no control over what is taught or who teaches. In short, everyone seems to think they know what is best for children, but some people have enough political power to clothe their opinions with the force of law.

I propose that the only justifiable laws governing the parent-child relationship are those that fall into one of two categories: laws articulating the rights of a parent over his or her child and laws articulating the rights of a child over his or her parents. I can imagine no legitimate basis for a third parties—including government—to assert independent rights over children. This is not to say that third parties can never get involved; I am only arguing that third party involvement must be limited to enforcement of a legitimate right that falls into one of the two categories listed above.  To support my proposition, I present the following foundations for children’s rights and parents’ rights, and argue that no such foundation exists for third-parties—including government.

The Origin of Children’s Rights

Murray Rothbard, one of the intellectual leaders of the libertarian movement, argued that children should have no special rights over their parents:

in the free society, no man may be saddled with the legal obligation to do anything for another, since that would invade the former’s rights; the only legal obligation one man has to another is to respect the other man’s rights. Applying our theory to parents and children, this means that … the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights.

Murray Rothbard, The Ethics of Liberty 100 (1998).

This reasoning strikes me as simplistic because it prematurely dismisses the obligation that parents incur by bringing their child into human existence. Rothbard attempts to raise problems and present a parade of horribles that will come about if we recognize such a parental obligation, but I find his arguments unpersuasive (I can explain my reasons if any Rothbard devotees are interested). I think Attorney Stephan Kinsella has a better argument:

the parent has various positive obligations to his or her children, such as the obligation to feed, shelter, educate, etc. The idea here is that libertarianism does not oppose “positive rights”; it simply insists that they be voluntarily incurred. One way to do this is by contract; another is by trespassing against someone’s property. Now, if you pass by a drowning man in a lake you have no enforceable (legal) obligation to try to rescue him; but if you push someone in a lake you have a positive obligation to try to rescue him. If you don’t you could be liable for homicide. Likewise, if your voluntary actions bring into being an infant with natural needs for shelter, food, care, it is akin to throwing someone into a lake. In both cases you create a situation where another human is in dire need of help and without which he will die. By creating this situation of need you incur an obligation to provide for those needs.

How We Come to Own Ourselves, Mises Daily: 7 Sept. 2006.

This is a solid foundation for children’s rights. Children’s rights are not derived solely from their need, and not solely from their parent’s act of bringing them into the world. They are derived from a combination of both: a voluntary act by adults that puts another human in a position of complete dependence upon them. This creates an obligation in the parents and a corresponding right in the child.

The Origin of Parental Rights

Rothbard had a similarly limited conception of parental rights:

the child has his full rights of self-ownership when he demonstrates that he has them in nature-in short, when he leaves or “runs away” from home. Regardless of his age, we must grant to every child the absolute right to run away and to find new foster parents who will voluntarily adopt him, or to try to exist on his own. Parents may try to persuade the runaway child to return, but it is totally impermissible enslavement and an aggression upon his right of self-ownership for them to use force to compel him to return. The absolute right to run away is the child’s ultimate expression of his right of self-ownership, regardless of age.

Ethics of Liberty, 103.

I don’t know whether Rothbard was a parent or interacted much with children during his adult life, but regardless of his understanding of the practical consequences of the policy he proposed, his approach fails for a more important reason. It does not recognize the obligation that the child owes because of the suffering and expense that parents must bear to create and preserve a body for the child. Once again, Stephan Kinsella’s reasoning is more persuasive:

So, who owns a child’s body? Initially, the parents own it as a sort of temporary trustee. The parents, as the producers of the child, have an objective link to the child’s body that defeats any claims of outsiders (unless the parents sever this link by abusing their position). That is, parents have a better claim to the child than any outsiders, because of their natural link to the child. However, when the child “homesteads” or “appropriates” his own body by establishing the requisite objective link sufficient to establish self-ownership, the child becomes an adult, so to speak, and now has a better claim to his body than his parents.

How We Come to Own Ourselves.

In other words, when a child is born its body is entirely the product of its parents’—predominately the mother’s—sacrifice and effort. This serves as the foundation for parental rights. However, as the child grows and matures by developing its body, learning skills and abilities, and gaining self control, the parents’ ties are subordinated to the child-turned-adult’s own claims of self-ownership. It is important to point out that the parents’ relationship to the child is that of a trustee in trust, not total owner. This means that the child’s rights not to be abused remain in full force.

No Third Party Rights

In general, third parties can claim no special relationship that would entitle them to assert rights over children. Certainly, the argument for biological parental rights can be modified to show the legitimacy of adoptive and foster parental rights, but that is not the issue here. The question is whether unrelated third parties are justified in turning their concern for the wellbeing of someone else’s children into a law. I can think of no good reason to permit this. For third-party intermeddlers, there is no way to avoid the force of Rothbard’s reasoning: “in the free society, no man may be saddled with the legal obligation to do anything for another, since that would invade the former’s rights; the only legal obligation one man has to another is to respect the other man’s rights.” Ethics of Liberty, 100.

Certainly this broad framework doesn’t answer the detailed questions about when parental conduct crosses the line from discipline to abuse or neglect. But with solid foundations for children’s rights and parent’s rights, it will be easier to work out these details and eliminate laws that seek to impose unjustifiable burdens on parents and children.