Author Archive

Modern Kings

Wednesday, October 5th, 2011

The struggle between those who love liberty and those who love government boils down to a difference in commitment to the principle of equality. For centuries there were a few individuals who by virtue of their bloodline held enormous power over their fellowmen. They were called kings, princes, lords, emperors, czars, sultans, and so on. In many cases the power which these men held was virtually unchecked. They held the power to take anything from their subjects which force can take. Some countries even formally recognized this power as a divine right conferred by God for some inscrutable reason. Most kings considered themselves the masters and caretakers of their inferior subjects, much in the same way that a man is the master and caretaker of a pet dog.

A few brave men and women rose up and defied those tyrants. It wasn’t just the kings themselves that had to be dealt with; there was a host of supporters who had embraced loyalty to king as a moral duty, who fought tooth and claw to keep their position as human pets. Happily for our generation, the principle of equality gained a strong foothold and most of the kings were cast down. But the struggle over equality didn’t end there. Even here in the United States, the struggle continued. As democracy became fashionable and republics were established to take the place of kingdoms and empires, aspiring men and women saw new opportunities to seize power.

They didn’t try to call themselves kings, of course, that title had become too unpopular. Instead, they disguised themselves as the people’s representatives and then worked to convince people to give them the same powers that the kings had held. They worked to inculcate a blind acceptance of taxation as a moral duty, a right of government. They worked to seize control of the economy and “manage” the monetary supply. They expanded the power to make war, and, to our once humble republic, they grafted tentacles of empire. They worked to nationalize the education system, taxing the people to excess and then offering to give the money to the state school systems if they would adopt federal programs. Steadily they centralized power, taking it from the local governments and usurping it for themselves. It was a relatively gradual process. Every time there was a calamity of any kind, it was twisted and spun to support an ever increasing consolidation of power. War, sickness, economic troubles, crime, poverty, pollution, drug abuse, terrorism, and any other cause for alarm was used to consolidate more and more power to the federal government.

What does this have to do with equality? Each of the new powers they seized is predicated on the principle that all men are NOT created equal. These are not powers that an individual acting alone could rightfully exercise. No man has the right, for example, to insist that his neighbor fund his child’s education. No man has a right to force his neighbor to buy health insurance or give money to the poor. These powers, and others like them, are not derived from the people because the people never had them. They are powers usurped by government. Obviously the usurpation was not done by blatant appeal to force. Instead these grasping, aspiring men and women persuaded a portion of the people that they had power over their neighbors, that they somehow had the moral right to force them to support policies and programs that they liked or believed were economically expedient. They attacked the principle of equality by teaching the principle of tyranny by majority: that if they simply amassed enough votes, they could impose whatever regulation they thought best. This was a direct attack on human equality.

So here we are in the twenty-first century, and with the exception of a few figureheads and third world countries, the time of kings has nominally ended. But would our ancestors who fought so hard to throw off the yoke of kings be satisfied with our progress? We may not have kings in name, but we have men and women who claim powers typical of kings and who have far more effective methods of enforcing their commands than those ancient kings could ever have hoped for. It is high time for us to return to the principle of human equality and vote out these sneaky modern kings.

Another New Author

Friday, September 2nd, 2011

As promised in a previous post, infoRipple will now include articles from several authors. Elise has agreed to write with us, and her first post will follow this one. Enjoy.

The Morality of Mooching

Sunday, August 28th, 2011

Is it wrong to accept government benefits? Or, put differently, is it wrong to accept money that the government has extorted from you and your neighbors? Liberty-loving people who believe that government redistribution of wealth is an unjustifiable abuse of power face a difficult problem when living in an ever-more-socialist society. On the one hand, we believe that individual self-ownership and human equality make it immoral for one person to take the property of another. On the other hand, we cannot avoid having our own property taken through taxation, devaluation of the money supply, and unjust regulations. It is easy to see that knowingly accepting the fruits of robbery is immoral, but what if you are one of the victims?

Many of the conservatives and libertarians who I know refuse to accept government welfare programs like WIC, medicare, medicaid, and social security. Doing so is disparagingly referred to as, “feeding at the trough.” I grew up with this attitude, and I decided to forgo many of the benefits for which I was eligible. Lately, though, I’ve been questioning whether this attitude is based on principle or just simple pride.

The average American worker loses a substantial portion of his earnings to income taxes before he gets paid a dime. For the self-employed, the extortion is delayed until taxes come due—at which time, if he doesn’t pay, he is subjected to heavy fines and imprisonment. Even after getting paid, he is taxed if he uses his money either to buy goods or to invest. Then, to add insult to injury, the government dilutes the money supply by printing more money—devaluing through inflation any money the worker has managed to keep. And that’s just a small piece of the picture. So, is it okay for the American worker to recoup some of his losses by accepting those government handouts for which he is eligible? I am inclined to say yes, but there are at least a couple of problems:

First, it is impossible to calculate how much the government has taken. Figuring out how much a person has paid in income tax is easy, but how can a person calculate how much he has lost through currency devaluation? How can he discover how much he has lost because of oppressive government regulations which drive up costs and stifle entrepreneurship? If a person takes more from the government than what the government has taken from him then he has profited from government theft.

Second, since government epitomizes wastefulness and inefficiency, even if a person were able to calculate the exact amount of property the government had unjustly taken, recouping that amount through government programs would cost far more. In other words, if you were able to calculate that the government stole $10,000 from you one year, recovering that amount through government programs would actually cost far more than $10,000 because of administrative costs. And, of course, your neighbors are the ones who would get stuck paying those costs. One solution to this problem is to recover only $10,000 minus X where X is equal to the administrative costs. But then we run into calculation difficulties again.

In the end, though, these are practical problems, not principled objections. The simplest way to deal with these practical problems is to take few enough benefits that you are certain that you haven’t helped rob your neighbors—maybe just take roughly the amount you lost in taxes. So long as you don’t take more than was taken from you, I don’t see any principled objection to taking government benefits since you are just recovering what belonged to you in the first place.

So what do you think? Is it wrong to take government benefits?

Jury Nullification

Sunday, July 24th, 2011

Founding-era Americans valued the right to a trial by jury as a key safeguard against tyranny. The Declaration of Independence listed denial of trial by jury as one of the “injuries and usurpations” that made it necessary to dissolve political ties with England. Later, it became a point of contention when the original draft of the constitution didn’t explicitly state the right to a jury trial. In a letter to James Madison on the subject, Thomas Jefferson wrote, “I will now add what I do not like. First the omission of a bill of rights providing clearly and without the aid of sophisms for … trials by jury in all matters of fact triable by the laws of the land.” Letter from Jefferson to Madison dated 20 Dec 1787. Jefferson’s concerns were later answered with Amendments VI and VII of the Bill of Rights: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury … In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved …”

Juries undoubtedly serve an important role in the legal system, but some people, both then and now, insist that a jury should do much more than impartially decide the facts of the case. They argue that a jury should have the power to nullify, or refuse to enforce, laws that it decides are unjust. This is called jury nullification. The basic idea is that since juries deliberate privately, and are not accountable in any way for their decision, judges have difficulty making them follow instructions and apply the written law. The practical outcome is that even if the government presents evidence proving every fact necessary under the law to establish guilt, the jury could still return a verdict of not guilty.

An organization called the Fully Informed Jury Association (FIJA) is among the most vocal supporters of jury nullification today. Its purpose statement includes the following: “The primary function of the independent juror is not, as many think, to dispense punishment to fellow citizens accused of breaking various laws, but rather to protect fellow citizens from tyrannical abuses of power by government.” And further,

When every American juror is aware of and permitted to exercise all of his and her rights, the final judgment of law will return to where it was always intended to be located…in the hands of the people. Once again our jury system will function as our country’s founders intended it to function as people’s final check against the government’s tendency to encroach upon the rights of its people.

Not surprisingly, however, jury nullification has many critics, especially among judges, and they have designed several tools to counter its use:

 Shhhhhh – No Open Argument for Nullification in Court

First and foremost is a rule in many jurisdictions that a lawyer who argues for jury nullification has committed an ethical violation—and may be subject to disbarment. Washington D.C., for example, has such a rule:

A lawyer defending a criminal case may zealously advocate for the acquittal of his client using any evidentiary argument for which he has a reasonable good faith basis. Current legal standards strongly disfavor jury nullification and prohibit express exhortations that a jury nullify the law. Accordingly, a lawyer may not, consistent with the rules of professional conduct, expressly urge a jury to disregard the law.

Opinion 320, Jury Nullification Arguments by Criminal Defense Counsel. Not only do state bar licensing organizations prohibit lawyers from openly arguing for nullification, judges explicitly instruct jurors that they must obey the judge when it comes to questions of law. For example judges in the 5th Federal Circuit give the following instruction to jurors at the outset of criminal trials:

I will decide which rules of law apply to this case, in response to questions or objections raised by the attorneys as we go along, and also in the final instructions given to you after the evidence and arguments are completed. You must follow the law as I explain it to you whether you agree with it or not.

 5th Circuit 2001 Jury Instructions, pg 5. (pdf)

Controlling the Evidence – The Relevance Rule

The restriction against openly asking the jury for nullification is made even more effective by restricting evidence and subsequent argument to issues deemed relevant by the judge. This means that if a lawyer attempts to present evidence that does not relate to an element of the law that the defendant is accused of violating, the opposing side can object to having that evidence presented to the jury. So, for example, if a lawyer defending a marijuana user attempted to introduce evidence that marijuana is mostly harmless to the user or that no one was directly hurt by the use, the prosecution could object and have that evidence excluded as irrelevant because it does not bear on the simple question of whether or not the defendant knowingly and voluntarily used marijuana.

Bifurcation – Dividing the Trial Into Two Parts

Another method used to combat jury nullification is to split the guilt phase and the sentencing phase of the trial into two different proceedings. The jury is first asked to determine whether the defendant did the acts of which he is accused. Only if the jury answers that question affirmatively is there any discussion of an appropriate sentence. Separating the phases of the trial helps to prevent the jurors from getting distracted from the issue of guilt or innocence by the pity and sympathy evoked by discussion of sentence severity. This tool is called bifurcation, and it is made more effective by the creation of statutory minimum sentences.

Voir Dire – Picking the Jury

Finally, judges and lawyers will almost always ask prospective jurors during the jury selection phase of the trial, called voir dire, whether or not they are willing to follow the instructions of the judge and apply the law as it is explained to them by the judge. If a juror hesitates or refuses, then the judge will strike the prospective juror and substitute a more compliant one in his or her place.

I have mixed feelings about jury nullification. Maybe, on this subject, my usual enthusiasm for libertarian ideas is dampened a little by my legal training and experience. On the one hand, I recognize that jury nullification could ideally prevent the enforcement of laws which are unconstitutional or simply unjust. But the tradeoff’s are costly. Jury nullification introduces inconsistency and inequality into a system which requires consistency and equality to function properly. In essence, it makes written law pointless. I’m not the only one who has misgivings. Judge Robert Bork called jury nullification a pernicious practice, and wrote,

To be ruled by each individual’s moral beliefs is to invite, indeed to guarantee, social tumult and disorder. The law alone is uniform, a composite or compromise of varying moral assessments, to be applied to all alike, regardless of personal attitudes … If an acceptable mix of freedom and order are to be maintained, obedience to law must be accepted as a primary moral duty.

Robert Bork, Thomas More for Our Season, 94 First Things 17-21 (June/July 1999). Judge Bork’s argument, as I understand it, is that when jurors are free to nullify the written law, the individual on trial is found guilty or not depending upon the moral and emotional reactions of the jury to the defense attorney’s presentation. This allows all of the prejudices and preconceptions of the jurors to taint the verdict, and introduces a great deal of unnecessary uncertainty into the legal system. One of the primary advantages of written law, uniformly applied, is that it helps avoid consideration of irrelevant facts, such as race, religion, gender, political affiliation, occupation, education, wealth, etc. when deciding guilt or innocence. Jury nullification, by making written law irrelevant, eliminates that advantage.

Judge James Wilson, an important member of the Constitutional Convention, also opposed jury nullification. He wrote,

In the cases and on the principles, which we have mentioned, jurors possess the power of determining legal questions. But they must determine those questions, as judges must determine them, according to law. The discretionary powers of jurors find no place for exertion here. Those powers they possess as triers of facts; because, as we have already observed, the trial of facts depends on evidence; and because the force of evidence cannot be ascertained by any general system of rules. But law, particularly the common law, is governed by precedents, and customs, and authorities, and maxims: those precedents, and customs, and authorities, and maxims are alike obligatory upon jurors as upon judges, in deciding questions of law.

James Wilson, Collected Works of James Wilson, vol. 2 The Subject Continued. Of Juries. Chapter VI (Kermit L. Hall & Mark David Hall eds. 2007). In other words, when a jury decides factual questions, we expect it to use discretion. We expect it to rely upon common sense and its members’ collective life experience to determine who is telling the truth and what really happened. But when it decides legal questions, it must apply the same “precedents, customs, authorities, and maxims” that bind judges.

The concept of obedience to precedent grows out of the belief, perhaps fanciful, perhaps not, that previous generations had some measure of wisdom to pass down to us. That the way they resolved legal issues then may be useful to us in deciding those same issues today. Obedience to precedent also grows out of the principle that the law should be consistent. That it should give fair warning to people of its expectations and requirements before penalizing them. Jury nullification necessarily disregards precedent; it gives no weight to the wisdom of past generations; it creates a situation in which no one can really predict from one case to the next whether the law will penalize behavior or not. All outcomes depend entirely upon the whim of the particular jury.

Ultimately, I guess my feelings about jury nullification are similar to my feelings about judicial activism. If jurors could be trusted to do justice rather than be ruled by emotion, prejudice, and popular feeling, then I would be happy to have them nullify unjust laws. But the simple truth is that that doesn’t happen. A good enough defense attorney can make almost any murderer to look like a Lennie Small and any thief to look like a Jean Valjean. With as many flaws as our legislative process has, I still think it is superior to a system where the law is created on an ad hoc basis by individuals or small groups. An essential part of an impartial legal system is that judges and jurors cannot be held accountable for their decisions, so the law must be made by someone else. The law must be made by individuals who are—at least in some measure—accountable to the people.

New Author

Wednesday, July 6th, 2011

During the past few months my posts have fallen off in frequency due to increased demands at work, so I’ve invited other authors to help keep the blog content fresh. Each of us has a different perspective, and we likely will disagree about an issue or two now and then, but the contributions will be thoughtful and interesting. Adam is the first to have accepted my invitation. His first post follows this one. Enjoy.

Military Members, the Constitution, and Lawful Orders

Sunday, March 27th, 2011

The oath of enlistment in the United States military as well as the officer’s oath includes the phrase “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” 10 U.S.C. § 502 and 5 U.S.C. § 3331.

It seems appropriate that military members swear to support and defend the Constitution of the United States rather than simply swearing to support and defend the United States simpliciter. This is significant. It means that military members are more than just neutral tools of the political party in power. This oath places an affirmative responsibility on military members to read and understand the Constitution, to recognize the source and limits of the authority they have, and to uphold the specific system of government that the Constitution sets forth.

But empowering military members in this way creates problems. Among a list of general orders, George Washington once wrote, “It is required and expected that exact discipline be observed, and due Subordination prevail thro’ the whole Army, as a Failure in these most essential points must necessarily produce extreme Hazard, Disorder and Confusion; and end in shameful disappointment and disgrace.” George Washington, George Washington: A Collection (W.B. Allen ed. 1988). General Washington is also famously quoted as saying, “Discipline is the soul of an army. It makes small numbers formidable; procures success to the weak, and esteem to all.” The military oath of enlistment recognizes the importance of obedience, subordination, and discipline by including the phrase, “I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.” 10 U.S.C. § 502.

Inevitably, there will be occasions when the military members’ responsibility to support and defend the Constitution will conflict with the orders they receive. This conflict puts military members in a difficult situation. Which part of their oath should they uphold? How do they evaluate and resolve the conflict? How can they know whether the order is really unconstitutional?

For military members, failure or refusal to obey a lawful order is a criminal offense. The Manual for Courts Martial (MCM) explains that the maximum peacetime penalty for willfully disobeying a superior commissioned officer is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years. The maximum wartime penalty is death. MCM ¶14.e(2)-(3). Not only that, but “An order requiring the performance of a military duty may be inferred to be lawful and it is disobeyed at the peril of the subordinate. … [T]he dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.” MCM ¶14.c(2)(a). In other words, to avoid the penalty stated above, the military member has the burden of proving that the order he or she disobeyed was unlawful. That’s no small task, even for trained lawyers, and many of our military members are 18 to 22 year-old kids with only a high school diploma.

So, what’s the answer? Clearly we can’t permit military members to refuse orders based on their private interpretation of the Constitution. But what is the threshold? When is an order unconstitutional enough that military members can safely disobey it? The easy solution is to say to military members, if you believe strongly enough in your position, then make your stand and face the consequences. But I don’t find that very satisfying. Any ideas?

Some examples you might react to in your comments are listed below.

Private First Class Bradley Manning—the soldier who gave classified information to wikileaks. Below is an excerpt of his explanation for why he violated orders about the use of classified information:

i think the thing that got me the most… that made me rethink the world more than anything was watching 15 detainees taken by the Iraqi Federal Police… for printing “anti-Iraqi literature”… the iraqi federal police wouldn’t cooperate with US forces, so i was instructed to investigate the matter, find out who the “bad guys” were, and how significant this was for the FPs… it turned out, they had printed a scholarly critique against PM Maliki… i had an interpreter read it for me… and when i found out that it was a benign political critique titled “Where did the money go?” and following the corruption trail within the PM’s cabinet… i immediately took that information and *ran* to the officer to explain what was going on… he didn’t want to hear any of it… he told me to shut up and explain how we could assist the FPs in finding *MORE* detainees … everything started slipping after that… i saw things differently i had always questioned the things worked, and investigated to find the truth… but that was a point where i was a *part* of something… i was actively involved in something that i was completely against…

Lieutenant Colonel Terry Lakin, a decorated active-duty Army flight surgeon who refused to deploy for a second time to Afghanistan because he believed that his order to deploy was illegal. In a video statement he said,

I will disobey my orders to deploy because I, and I believe all service-men and women, and the American people, deserve the truth about President Obama’s constitutional eligibility to the office of the presidency, and the commander-in-chief. If he is ineligible, then my orders, and indeed all orders, are illegal because all orders have their origin with the commander-in-chief as handed down through the chain of command.

Finally, the post-Katrina gun grab in New Orleans, where National Guard troops were ordered to confiscate lawfully-owned firearms from law-abiding citizens.

My tentative opinion is that military members’ responsibility to judge the lawfulness of an order has something to do with the nature of the constitutional question as well as the scope of the military member’s responsibility. But I don’t have any useful generalizations yet. I welcome your comments.

Avoiding Voter’s Remorse

Monday, November 1st, 2010

Tomorrow is Election Day! It’s time for citizens to evaluate their representatives and decide who to retain and who to fire. Judging by the expressions of anger and disappointment by many Americans, there will probably be some significant personnel changes this time around. Some may feel optimism about this, but I’m not so hopeful. Politicians are politicians, and I worry that, despite the resurgence of conservative talking points this election season, the newly hired representatives as well as those who are retained will resume spending outrageous sums of money, and regulating and taxing us.

Discovering that your candidate of choice fooled you with flowery campaign speeches is a painful experience. It feels like buyer’s remorse, except you can’t just return the candidate to customer service for a refund. You will probably be stuck with him/her for the whole term of office. It is even worse to learn that although your candidate voted the way you thought he/she would, the precedent set by your candidate’s votes has paved the way for disastrous policy decisions in the future.

What voters need to remember as they go to the polls is that this struggle is not between Democrats and Republicans, conservatives and liberals; this is a struggle between the government and the people. There is a natural sentiment in favor of liberty. People want to be free. The political parties understand this, so to distract from the real issues and to prevent real change, whichever party is out of power complains about the other’s abuse of power and expansion of government.

During George Bush’s presidency this took the form of Democrat criticism of wars in Iraq and Afghanistan and the complaints about expansion of executive power. Both of these were legitimate points of concern, but since the Democrats have gained power the wars have dragged on and executive power has continued to expand. They want to give the President a kill switch for the internet for crying out loud! On the other side of the coin, Republicans now protest the ballooning national debt, oppressive healthcare laws, and other intrusions into privacy and liberty. But has their track record for fiscal responsibility and civil liberties been any better?

It should be obvious, but when we get caught up in the heat of political struggle and party warfare, we lose sight of the fact that whenever one party expands government power, the party who later takes control will use the expanded scope of government to implement its own goals and objectives. The only safe course is to prevent the expansion in the first place. Ultimately, it matters very little who first forged the sword or fastened the shackles; once government has the tools, the party in power will abuse them for its own ends.

So, tomorrow avoid voter’s remorse by supporting candidates who will give you less government.

Conservative Hypocrisy?

Thursday, September 30th, 2010

Last week I attended a political meeting about local economic issues. Those present were predominantly right-leaning in their views and probably would identify themselves as conservatives or republicans. Consequently, I was surprised to learn that one of the items on the agenda was a proposal to entice a business into the city by using tax increment financing. Tax increment financing involves manipulating property taxes.

Property taxes are calculated as a percentage of the assessed value of the property. For example, if your property is worth $100,000 and your property taxes are 5%, then you have to pay $5,000 in property taxes each year. Normally, as the assessed value of a piece of property increases, the property taxes increase as well. So, if the value of your property increases to $200,000, then you would have to pay $10,000—assuming taxes stay at 5%.

Property taxes go into a pool of money which the city council then divides up among various local government services. These services include schools, police departments, fire departments, road maintenance, city government, and so on. Since no one likes to pay taxes, there is a natural tension between the desire for more of these services and the desire to lower property taxes. Consequently, city councils are limited in what they can afford to do. A city council that chose to raise taxes to build a new building for Walmart, for example, would probably become unpopular very quickly. The people’s natural aversion to being plundered helps restrain local government power. But like weeds growing up through the cracks in the sidewalk, creative government employees have found ways around this restraint. One of these is tax increment financing. Tax increment financing gives the city council significant power to influence development and business within the city.

Despite its technical-sounding name, tax increment financing is quite simple. It is just a way for the city council to spend future property tax revenue to promote or pay for present development projects. Usually, when property is developed, its assessed value increases. Normally, this would mean that the owner of the newly developed property would owe higher property taxes, which would help fund local government services. But tax increment financing changes this. Instead of going into the general city fund, the additional tax money is earmarked to pay for the development itself. Usually this means that the city borrows the money to pay for the development up front and then slowly pays off the loan with the additional property taxes from the developed property. Alternatively, the developer fronts the costs of the development and the city freezes the property taxes at the pre-development level for a time so that the developer can recoup development costs in the form of lower taxes. Either way, property taxes that would otherwise go into the general fund to pay for local government services are instead set aside to pay for the development.

Advocates of tax increment financing argue that it is a win-win situation for the city because it doesn’t use any money from the pre-existing tax revenue, and because, in the end, the city’s tax income will be higher than it was before the project. But even if true, these assertions don’t address the consequences to the rest of the city outside of the project area or the consequences to the rest of the economy.

City councils like tax increment financing because it expands their power; it allows them to pay businesses to relocate within city limits without having to raise property taxes. But when a city council uses tax increment financing to pay for an incoming business’ property development expenses, all other businesses are suddenly placed at a disadvantage. Essentially they must compete with a business whose real estate expenses are paid by the city government. Obviously any business in direct competition with the subsidized business will suffer, but other businesses will suffer as well as they compete—at a disadvantage—for high quality human capital and other scarce resources.

Other businesses aren’t the only ones negatively affected; all consumers of city services suffer. When a new business moves into the city, it uses city resources in the form of increased traffic, demand for police and fire department protection, parking, and general wear and tear. But if a new business moves in under the protection of tax increment financing, it doesn’t pay for these services through its property taxes. Consequently, other property owners must either pay more taxes or the city will have to divert funds from other areas.

But the most serious problem, in my opinion, is that tax increment financing gives the city council power to intervene in the city’s economic development. This increases the likelihood of malinvestment by distorting the market forces that prevent inefficient companies from consuming resources that they cannot afford, and it opens the door to corruption.

Conservatives across America are furious about bailouts and stimulus packages originating in Washington D.C.—as they should be. But to me it seems terribly inconsistent to rail against the D.C. bureaucrats for their intervention in economic affairs and yet support local politicians who intervene in fundamentally the same way on a much smaller scale. If we believe in economic liberty, then let’s apply it consistently.

Heroes and Lunatics

Wednesday, September 22nd, 2010

The world is full of people with strange ideas. But despite society’s present obsession with diversity in race, socioeconomic background, gender, and sexual orientation in schools and workplaces—all of which are, at best, merely superficial signs of diversity—the modern state will not tolerate diversity in more fundamental areas, such as values. This is particularly evident in decisions concerning one’s life or the life of one’s children. In my previous post I wrote about laws which force parents to administer a medical test to their infant children. Advocates of these laws insist that the child’s life and health are of paramount value, and other considerations—including parental rights, moral beliefs, and individual liberty—must yield.

Our culture and history are full of stories about individuals who chose to value something more than life. Here are a few examples; I’m sure you can think of many more. Patrick Henry famously exclaimed, “give me liberty or give me death.” Christians, Jews, and Muslims all honor Abraham for valuing obedience to God more than his son’s life. Romantics treasure the story of Romeo and Juliette for valuing love over life. Even the academics have Socrates who insisted that “the unexamined life is not worth living.” Plato, Apology. When these individuals are safely pinched into stories and songs, society honors them as heroes, patriots, prophets, and so on. But when society deals with such diverse people in real life, it is much more inclined to label them as lunatics, fanatics, or simply ignorant, and to try to force them to conform their ideas and behavior to that of the majority.

Squelching diversity of values is one prerequisite for any utilitarian or economic analysis of the law. For example, in the recent healthcare debate, the contested issue became cost. Pundits and politicians focused on whether socialized health insurance would cost more or less than the current system. The President and his allies argued strenuously that they would control costs by appointing independent commissions and cutting spending in other programs. Opponents argued that this was not true. There was little said about anything else. Other values, such as property rights and freedom to choose the type and amount of healthcare, took second seat. This is a familiar maneuver: assume without discussion that one value takes priority over all others and then discuss the best way to promote that value. The deception here is that deciding which value to prioritize is often the most important and controversial issue at stake. It merits careful discussion and debate. Liberty, life, love, obedience, spirituality, individuality, human dignity, property; which should take priority, and who should decide? Anyone who values human equality must admit that this is an individual decision.

Liberty is the only value that the state can adopt and promote that will permit each individual to order her values as she chooses. Robert Nozick recognized this simple truth in his work Anarchy, State, and Utopia.

[P]eople are different. They differ in temperament, interests, intellectual ability, aspirations, natural bent, spiritual quests, and the kind of life they wish to lead. They diverge in values they have and have different weightings for the values they share. (They wish to live in different climates—some in mountains, plains, deserts, seashores, cities, towns.) There is no reason to think that there is one community which will serve as ideal for all people and much reason to think there is not. … Utopian authors, each very confident of the virtues of his own vision of its singular correctness, have differed among themselves (no less than the people listed above differ) in the institutions and kinds of life they present for emulation. … The conclusion to draw is that there will not be one kind of community existing and one kind of life led in utopia. Utopia will consist of utopias, of many different and divergent communities in which people lead different kinds of lives under different institutions. Some kinds of communities will be more attractive to most than others; communities will wax and wane. People will leave some for others or spend their whole lives in one. Utopia is a framework for utopias, a place where people are at liberty to join together voluntarily to pursue and attempt to realize their own vision of the good life in the ideal community but where no one can impose his own utopian vision upon others.

310-312 (1977). Despite its plain appeal, statists on both the left and the right resist real freedom because it would mean giving up the power they have usurped. Republicans want to control moral behavior and foreign affairs, while Democrats wish to usurp individual property rights and control citizens’ day-to-day living conditions. Both parties openly and subtly try to control the thoughts and speech of citizens through public education, campaign finance laws, and penalizing unpopular behavior.

Undoubtedly there is a fixed right and wrong. Truth is not relative. But if history and ethics have taught us anything, it is that people cannot be driven to the truth by threats and force. The use of force to suppress an idea—whether right or wrong—will only strengthen its power in the mind of its followers and spark curiosity in undecided onlookers. Conversely, the use of force to promote an idea will ultimately weaken it because it is a tacit admission that the idea cannot stand on its own merits. Teach, persuade, and reason, but don’t threaten or force people to support ideas or programs that you think are right—whether through coerced taxation or police enforcement or otherwise.

Ultimately, we each get to pick our own heroes and lunatics, and we’ll probably disagree a lot. But that should remain an individual judgment, not a judgment of the state.

Children of the State

Thursday, September 16th, 2010

A short time ago, my wife and I were blessed with the birth of our third child. Those who have had children recently may remember the extensive battery of medical tests that a hospital-born baby suffers through during the first days of life. Since my wife and I are not medical experts, we usually trust the attending doctors’ and nurses’ assurances that these tests are effective and helpful and that the benefits outweigh the risks. But after a conversation with one nurse, we had some concerns about the PKU test. The nurse advised us that the PKU test often had to be needlessly repeated because the maternity ward staff regularly performed the test too soon after birth—precluding reliable results. The PKU test, also called newborn screening, is unpleasant: a nurse cuts the baby’s heel with a razor blade and dabs blood on a card. So we thought it would be good to wait and have the test done only once.

Shortly before being discharged from the hospital, the test was done, and we thought that would be the end of it. But due to some mix up, the hospital told our pediatrician that the test had not been done. It was during the ensuing efforts to clear up the confusion and transfer the necessary paperwork that we learned that the PKU test is more than just another precautionary medical test; it is mandated by state law. In fact every state in the union forces parents to subject their kids to a local variety of the newborn screening test.

Now, let me be clear that I don’t oppose PKU testing. Left perfectly free, I would probably still choose to have my children tested. From my layperson’s perspective, it seems to make sense: for the cost of a small cut and a couple of hundred dollars, the test can identify several devastating potential medical problems, some of which can be successfully treated. But some people, including some doctors, disagree. There is ongoing debate about what disorders the newborn screening should test for, and there is also disagreement about whether the disorders identified by the current tests are even treatable.

One critic, Norman Fost, professor of paediatrics and bioethics at the University of Wisconsin in Madison notes that when PKU screening was put into place more than 40 years ago it was assumed that if a child had high blood phenylalanine they had PKU and should be fed a strict diet. But there were few data to support that assumption, says Fost. “It turned out that 95% of people with an abnormal screening test had no disease, and it turned out the diet was lethal. It caused brain damage in we don’t know how many kids, and killed we don’t know how many kids.”

Harvey Black, “Newborn Screening Report Sparks Debate in USA,” The Lancet, Volume 365, Issue 9469 (2005). The currently recommended newborn screening procedures are controversial as well:

“They did not develop their arguments based on a careful analysis of the literature. The methodology is not strong” says Jeffrey Botkin, professor of paediatrics and medical ethics at the University of Utah in Salt Lake City, Utah. … The ACMG working group, he argues, did not provide data to show that kids will do better as a result of early intervention based on newborn screening.

Id. Aside from concerns about the tests’ effectiveness, some are concerned about privacy violations inherent in corporate and government collection of DNA. See here (lawsuit over Texas’ program), and here (statement by Ron Paul about the risks of a proposed national program). From my perspective, however, the more serious problem is that parents are not free to decide whether to have their children tested. This is an unjustified invasion of parental rights. Take a look at Utah’s laws as a run-of-the-mill example.

The rules governing newborn screening provide, “Each newborn in the state of Utah shall submit to the Newborn Screening testing, except as provided in Section R398-1-11 [exception for religious objectors].” R398-1-3. To ensure compliance, medical providers are required to report parents who refuse the test. “If the medical home/practitioner or institution has information that leads it to believe that the parent or legal guardian is not complying with this rule, the medical home/practitioner or institution shall report such noncompliance as medical neglect to the Department.” R398-1-13 (emphasis added).  If a medical provider fails to snitch on reluctant parents, she will be fined: “Any medical home/practitioner or facility responsible for submission of a newborn screen that violates any provision of this rule may be assessed a civil money penalty.” R398-1-18.

A report of medical neglect is no small matter. It falls under the general definition of “neglect” found in the Utah Code. “‘Neglect’ means: … (iii) failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence, education, or medical care, or any other care necessary for the child’s health, safety, morals, or well-being.” 78A-6-105(25)(a) (emphasis added). A finding of medical neglect gives the state the power to take your kids away. “The court may terminate all parental rights with respect to a parent if the court finds … that the parent has neglected or abused the child.” 78A-6-507(1) (emphasis added). In my opinion, these laws are unjust. Laws which give government the power to take away a couple’s  parental rights because they didn’t have their child tested for rare genetic diseases turn the proper relationship between citizen and government on its head.

Advocates of newborn screening trot out the usual wild rhetoric to justify this government-forced medical testing:

These are our children: the single greatest treasure we have as a nation and as a people. … Given the statistical prevalence of treatable metabolic disorders, not using MS/MS [an advanced newborn screening procedure] today to screen babies comprehensively is no different from shooting a gun into a crowded stadium. You cannot know whom you will injure, but it is a safe bet that you will injure someone.

Charles P. Hehmeyer, “The Case for Universal Newborn Screening,” Exceptional Parent Magazine, 88 (August 2001). The analogy to a gunman in a stadium is blatantly false. Someone who shoots at a group of people creates the risk of harm, but a person who declines a medical test simply fails to mitigate a pre-existing risk of harm. These acts are very different morally as well as legally. But even setting aside the blatantly false analogy, the argument fails. It rests on a false assumption. It assumes that children are a national resource to be guarded, guided, and regulated as the majority dictates. In fact, if children can be said to belong to anyone, they belong to their parents and themselves. Neighbors, friends, and community do-gooders have no rightful claim at all. (For a more detailed argument about this point, see my previous post: Whose Kids are They?)

Usually, a medical provider must obtain informed consent to perform any medical test or procedure. Usually, parents are the legal representatives of their children, and have the sole authority to consent or refuse. Newborn screening is a deviation from this usual practice. Consequently, some medical ethicists criticize mandatory newborn screening as unethical:

Does newborn screening policy take appropriate account of fundamental and widely respected American values concerning confidentiality, privacy, and informed consent? The mandatory nature of newborn screening seems inconsistent with these values. The standard rationale for mandating public health measures such as mandated immunization or treatment of infectious disease is that the measure will avert serious, imminent harm to others, but this rationale does not apply to newborn screening. Instead, the justification for requiring screening without parental informed consent has been that the risk is minimal and the child will lose a vital benefit if screening is not done immediately. Even under these circumstances, not all ethicists think that omitting informed consent is acceptable. Broadening the rationale makes the omission even more questionable. If the rationale is a family benefit, such as information that can inform reproductive decisions or help avoid diagnostic odysseys, or a societal benefit, such as identifying potential research subjects for the study of currently untreatable disorders, then the ethical requirement is clear: parents should be informed and allowed to make their own decisions.

Mary Ann Baily & Thomas H. Murray, “Ethics, Evidence, and Cost in Newborn Screening,” Hastings Center Report 38, no. 3 (2008): 23-31.

Lately, political machinations at the national level have excited many people to become involved in protests and movements. This is good. But the reality is that the average citizen has far more control over state policy than over national policy. A little effort to move state policies in the direction of freedom can make a big difference. Mandatory newborn screening is a state program, so this is something we can fix. Regardless of whether you believe newborn screening is good for your own children, it should be clear that forcing others to adopt the same opinion violates individual rights and human equality.

When my wife and I decided to have a third child, we didn’t do so to provide another subject for the state or another unit in a managed population. We want our children to be free individuals, not children of the state.