Author Archive

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.

Gross Income Attitudes

Thursday, January 28th, 2010

It is income tax season again, and as you pore over your records to discover how much the IRS siphoned from your paycheck and whether you have to fork over more, consider this frightening fact. From the government’s perspective, they could have taken much, much more. As proof of this, I present two pieces of evidence: the definition of “income” found in the Internal Revenue Code, and the concept of tax expenditures.

As you fill out your income tax forms, you will likely have to compute your gross income. The number you come up with, however, does not even come close to what the government’s tax theory says your gross income really is. As defined in Section 61 of the Internal Revenue Code, gross income is “all income from whatever source derived.” This is not terribly troubling until you understand the scope of the term “income.” As defined by the Supreme Court, “income” is any increase to wealth. See, e.g. Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955); see also Henry C. Simons, Personal Income Taxation 50 (1988). This isn’t just the money you earn; it includes the value of any services you receive (even those services you provided for yourself) and the value of any property rights you used. So in a world in which we strictly followed the government’s tax theory, you would include in your gross income calculation the value of cleaning your house, washing your car, brushing your teeth, and so on. You would include the value of living in your home, driving your car, wearing your clothes, etc. Happily, for now, the administrative costs of discovering the value of all these “accessions to wealth” limits the tax man’s reach. But as technology advances, who knows, you might be listing items like this on your income tax forms.

Understanding the government’s perspective on income is important because it reveals a dangerous attitude towards individual autonomy. Every productive act you do and everything you enjoy is taxable. There is nothing—at least nothing recognized by the government—in the legal foundation undergirding Congress’ authority to tax that prevents them from taxing anything and everything.

Now, some of you tax-savvy readers may be shaking your heads and thinking, “What about all the deductions, exemptions, and exclusions? Surely this is solid evidence that the government recognizes that there are some things that simply should not be taxed.” To disabuse you of this overly-charitable idea, let me introduce to you the concept of tax expenditures.

The concept of tax expenditures was invented by Stanley S. Surrey, a Harvard Law Professor and former assistant secretary of the United States Treasury. This concept profoundly influenced government budget analysis both in the United States and abroad. See Leonard E. Burman, Is the Tax Expenditure Concept Still Relevant? 56 National Tax Journal 614 (2003). The tax expenditure concept changed how the government calculated how much it was spending. The traditional method was simply to tally up the amount of money that the government expected to pay to cover its programs and projects. Mr. Surrey changed that method by proposing that the government include in its spending calculations the amount that it did not collect because of tax exemptions. The taxes that would have come from those portions of income that the government could have taxed but didn’t were, in Mr. Surrey’s method, uncollected revenue that should be accounted for. Adopting Mr. Surrey’s idea, the Budget Act of 1974 defined tax expenditures as, “those revenue losses attributable to provisions of the Federal tax laws which allow a special exclusion, exemption, or deduction from gross income or which provide a special credit, a preferential rate of tax, or a deferral of tax liability.”

Mr. Surrey’s upside-down method encouraged government to abandon the idea that some organizations and activities were simply beyond the reach of the tax code and to view any tax exemptions, deductions, or exclusions as monetary gifts from the government to the benefiting individuals and organizations. For example, under the Section 170 of the Internal Revenue Code an individual may be eligible for a tax deduction for the amount that he or she donates to a qualifying charitable organization. Under Mr. Surrey’s method, however, instead of recognizing that government simply should not be allowed to tax charitable donations, the government views the taxes that it could have taken but didn’t as a government subsidy—as if government itself were donating money by refraining from its “right” to tax. Rather than recognizing limits on its power to tax, government now views these exemptions, deductions, and exclusions as a form of discretionary spending justifiable only because it furthers political or social goals.

Putting together the two halves of the above discussion shows that government assumes that every productive or enjoyable thing you do is potentially taxable income and that by not taxing you to the full extent of its “rights,” it is generously giving you a gift. This attitude is particularly frightening in a time when unwise citizens continue to give political power to leaders who think they can spend their way out of any economic crisis or social ill, government budget deficits grow by the trillions of dollars, and academia continues to erode recognition of individual property rights. We have strayed very far from the relationship between citizens and government that the Declaration of Independence described. Do we still believe that the government is the servant of the people? For our government’s attitude about taxes is a strange attitude for a servant to take.

Achieving Cloture

Sunday, November 22nd, 2009

The purpose of parliamentary law—the rules that govern legislative procedure—is to “enable an assembly, with the least possible friction, to deliberate upon questions in which it is interested, and to ascertain and express its deliberate sense or will on these questions” General Henry M. Robert, Parliamentary Law 3 (1923) (General Robert authored Robert’s Rules of Order, an influential work on parliamentary procedure which is still commonly used today.). So to prevent impassioned minorities from creating too much friction by abusing the filibuster, the Senate implemented a procedure called “cloture.”

The U.S. Senate’s online glossary, explains cloture as follows:

cloture – The only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Under the cloture rule (Rule XXII), the Senate may limit consideration of a pending matter to 30 additional hours, but only by vote of three-fifths of the full Senate, normally 60 votes.

Yesterday, the Senate voted for cloture on the debate about the government health care takeover. Even setting aside the vote-purchasing spectacle, I believe that in these circumstances cloture was inappropriate. In general, I don’t see anything wrong with a rule that allows the legislature to avoid a filibuster if it is simply an abuse of procedure designed to derail the legislative process. After all, we don’t require unanimity among our lawmakers; a majority is usually enough. But in this case cloture wasn’t used just to avoid procedural delay tactics; it was used to avoid important debate and discussion.

The Senate democrats’ draft health care bill, called the “Patient Protection and Affordable Care Act” is 2,074 pages long.  If it is implemented, it will drastically change the way in which health care is provided and paid for in the United States. Low-end estimates predict its cost at close to a trillion dollars during the first decade. Furthermore, there are important questions to be resolved over which the public is deeply divided. Will it cover abortions? Will it subsidize reckless lifestyles? Will it cover non-citizens? How will the country pay for it? How will the system deal with shortages? Who will decide when a medical procedure is appropriate? Are the government’s recent recommendations for less frequent cancer testing for women just the first step in a movement to ration all medical tests? Will this plan avoid the mistakes that led to the failure of other government-run health care programs such as Medicare, Medicaid, and the Veterans’ Administration?

I am irreconcilably opposed to government involvement in health care for reasons of principle, but even those in favor must recognize that these questions need to be answered. To successfully implement a program of this size and complexity, congress would need more than a mere thirty hours to debate, plan, and evaluate. Cloture in these circumstances is foolhardy.

Making the News

Friday, November 20th, 2009

It’s no secret that news reporters distort facts to sell ads and push agendas, but here is a funny example. I was alerted to this by an odd discrepancy in an interview published by Fox News. The headline for the interview read, “Sen. Hatch: ‘Holy War’ Coming Over ‘Lousy’ Health Care Bill.”

Now the quotation marks in the headline led me to believe that Senator Hatch actually said the words “holy war,” but the only time the term comes up in the interview is in the following passage,

HATCH: From now. If they tried to go ahead with this bill without really allowing enough time for amendments and for chances to try and correct the bill, I think the American people are going to be outraged, and they should be.

VAN SUSTEREN: You used the term “holy war” in describing that, right?

HATCH: We’re talking about a country that is really going to be in real economic jeopardy if this bill goes through this way. And let’s just be honest. Those figures are probably low.

Notice that Senator Hatch simply ignored the reporter’s invitation to provide a quote that includes the words “holy war” in it. It seemed strange to me that the reporter would load a question like that unless there was at least some factual basis for it, so I googled the term “senator hatch ‘holy war.’” Sure enough, other news agencies were reporting the phrase as well—there were over 17,000 results. Most of the articles that cited a source for the quote referenced an article published in the L.A. Times.

The relevant portion of the L.A. Times article read, “‘It’s going to be a holy war,’ Sen. Orrin G. Hatch (R-Utah) said Wednesday evening.” (No citation for when or where this was said.)

Reporters love it when public figures say things like “holy war,” because it can be manipulated in so many different ways. Here are a few:

So I called Orrin Hatch’s D.C. office to ask if he had really used the phrase, “holy war,” and if so, what he had meant by it. I spoke with Mark Eddington who explained that Senator Hatch may have used the phrase in the halls after a hearing and that he was using the term to describe the expected intensity of the floor debate.

So there you have it, news making at its best. No wonder people are confused!

“When many organs of the press adopt the same line of conduct, their influence in the long run becomes irresistible, and public opinion, perpetually assailed from the same side, eventually yields to the attack. In the United States each separate journal exercises but little authority; but the power of the periodical press is second only to that of the people.” Alexis de Tocqueville, Democracy in America vol I ch 11 (Henry Reeve trans. 1899) (1835).

Flaws in the American Health Care System

Friday, November 20th, 2009

A few weeks ago, a good friend of mine recommended an article about health care reform titled “How American Health Care Killed My Father” published in the Atlantic magazine this September. Based on the title, I half expected the article to be a rant against heartless capitalism, but happily I was wrong. The article thoughtfully and honestly explores some of the real reasons why health care in America is so expensive and unresponsive to the consumer. I disagree with the author’s proposed solution, but he outlines some of the problems very well.

The Judge’s Role

Thursday, November 19th, 2009

Alexander Hamilton once wrote, “I agree that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’” The Federalist No. 78 (Alexander Hamilton) (quoting Montesquieu, I The Spirit of Laws 181 (1748)).

Separation of the judicial power from the legislative and executive powers is a necessary precondition for liberty, and it depends upon two important restraints. Restraining the legislature and executive from exercising or influencing judicial power—this is called judicial independence. And restraining the judiciary from exercising legislative power—this is called judicial deference. Both judicial independence and judicial deference are essential to the just administration of law. Sadly, neither of these restraints is properly understood or applied today.

Judicial independence is necessary to prevent politics and special interests from tainting the adjudication of individual rights, but recognition of its importance has waxed and waned. At times, “the ideal of a court of justice has been the omniscient and inexorable judgment seat of God.” Brooks Adams, The Theory of Social Revolutions 36 (1913). At other times, the idea of a judiciary that was independent from the legislature has been “treated with the utmost contempt” John Quincy Adams, I Memoirs 322 (1848) (recording sentiments expressed to him by Senator Giles of Virginia). A striking example of the fragility of judicial independence in American history was Franklin D. Roosevelt’s threats to increase the number of justices on the Supreme Court to obtain favorable rulings on New Deal legislation. Roosevelt was frustrated with the Supreme Court’s consistent decisions that his proposed legislation violated the Constitution. On Friday, January 11, 1935, then Secretary of the Interior Harold L. Ickes wrote in his diary,

The Attorney General went so far as to say that if the Court went against the Government, the number of justices should be increased at once so as to give a favorable majority. As a matter of fact, the President suggested this possibility to me during our interview on Thursday, and I told him that that is precisely what ought to be done. It wouldn’t be the first time that the Supreme Court had been increased in size to meet a temporary emergency and it certainly would be justified in this case.

Harold L. Ickes, The Secret Diary of Harold L. Ickes 274 (1954). For reasons that are disputed by historians, Justice Owen J. Roberts relented and changed his position on the constitutionality of the New Deal in a case called West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). This surrender made Roosevelt’s plan to expand the court unnecessary, and is sometimes called “the switch in time that saved the nine.” Justice Roberts insisted that he hadn’t changed his vote in response to Roosevelt’s threats, but whether or not this is true, it was clear that Roosevelt had already resolved to change the membership of the court to get the outcome he wanted. The threat to judicial independence was real.

Judicial independence is essential to the preservation of liberty because judges bear the heavy burden of standing against the will of the majority when enactment of the majority’s will would infringe upon individual rights. But the obvious follow-up question is what are the individual rights that judges should protect? Or put another way, what is to prevent judges from inventing rights and striking down legislation for political, personal, or ideological reasons? The answer is that a judge is obligated and authorized to protect only those rights recognized in the charter from which he or she receives judicial authority. This limitation prevents the judge from becoming a super legislature with a lifelong term. With this limitation, judges become as Hamilton described, having “neither force nor will, but merely judgment.” The Federalist No. 78 (Alexander Hamilton). If judges respect this limitation, both judicial independence and judicial deference are served. The judge defers to the Constitution for the rights that he or she is authorized and obligated to protect, and then acts independently of the legislature and executive in protecting those rights.

The Constitution provides two separate sources from which judges can draw information about the rights that they are obligated to protect. The more commonly recognized source is the Bill of Rights. Incidentally, it is strange that the Bill of Rights has become the primary source, because it was not part of the original Constitution and was thought superfluous by many of the founders, including as James Madison. The second source of information about the rights that judges are obligated to protect is the language that limits the role and authority of each of the political branches. This second source does not list individual rights, but it implies them by confining the authority of the executive and legislative branches. Sadly, this second source of information has been largely ignored by judges, and as a result, the legislature and the executive now act far beyond their constitutional limits. Today, judges usually refuse to give any real protection to rights that are not specifically listed in the Bill of Rights. This failure of judges to protect individual rights other than those listed in the Bill of Rights is wrongly identified as judicial deference. During the recent struggle over the nomination of Justice Sotomayor, Attorney Jeff Rowes wrote a compelling article in the Wall Street Journal highlighting this problem:

The time-honored justification for judicial deference is that when courts refuse to enforce property rights and allow economic liberties to be trampled by legislatures they are showing respect for the democratic process. But this notion is not faithful to the duty of the judiciary. The Constitution’s framers understood that legislatures are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of government, set forth our rights broadly, and create an independent, co-equal branch of government to protect those rights.

Jeff Rowes, Judicial ‘Activism’ Isn’t the Issue, Wall St. J., June 6, 2009, at A13. This misunderstanding of judicial deference undermines individual liberty and misleads people about the judge’s role. True judicial deference means that unless a law violates the Constitution (either by running afoul of a provision of the Bill of Rights or by exceeding the legislature’s limits of authority) a judge will interpret and apply that law as it is written.

This confusion about judicial deference is largely due to the counterfactual and counterhistorical claim that the Constitution does not embody a particular socioeconomic philosophy. The record of the debates over the language of the Constitution, the intellectual climate of the time, the size and nature of government at the time, and the text of the Constitution all plainly show that the Constitution was enacted on a foundation of natural rights and an assumption of economic liberty. Ever since the ratification of the Constitution, however, power-hungry men and women have sought to destroy this foundation and make the Constitution infinitely flexible. Consequently, any act by the judicial branch to check the excesses of the legislature and the executive branches that is not supported by both the plain text of the Bill of Rights as well as popular feeling is branded “judicial activism.” At the same time, real judicial activism goes unnoticed as judges expand statutes beyond their plain meaning and restrict private actions that don’t fit the judges’ worldview.

Law and Morality

Monday, November 9th, 2009

Last week a majority of Maine voters chose to preserve traditional marriage. In response, the pro-gay political movement protested that their rights had been violated and published pictures and interviews of disappointed homosexual couples. One common complaint from this movement has been that traditional marriage laws are illegitimate because they are based on majority morals. In a similar vein, two weeks ago I had an extended discussion with a professor of property law—who also happens to be a devotee of law and economics—about zoning laws based on majority morals. Frequently, communities use zoning regulations to exclude bars, distilleries, strip clubs, pornography, public nudity, and other things that the community dislikes for moral reasons. This professor insisted that morality was not a legitimate justification for zoning regulations and that cities should have to justify any laws they enact on non-moral grounds.

Arguments that laws should not be based on morals are persuasive in the United States. Many of the early immigrants to the United States were driven here by religious persecution, and, consequently, the protections for religious freedom written in the First Amendment are among the strongest in the world. History has strengthened this sentiment; state action enforcing a moral code raises the specter of atrocities like the inquisition, the Salem witch trials, and the violent expulsion of the Mormons from the United States in the middle of the nineteenth century. Another complication is that individuals examining a moral code from the outside often judge its practitioners to be irrational or worse. Individuals within a moral code often judge those who don’t abide by it to be deviant or worse. An extreme example of such a clash is the long conflict between western culture and fundamentalist Islam. These sentiments against laws based on morality are misleading because at root all legitimate laws are based on moral judgments.

For many laws, particularly criminal laws, the moral judgment is obvious: murder is bad; stealing is bad; injuring others is bad; and so on. For other laws, the connection to a moral judgment is distant and only becomes evident by asking what the end goal of the law is and then asking why society ought to pursue that goal. The private reasons of legislators and voters for supporting the law are irrelevant; the moral aspect of the law is revealed through the reasons that the public accepts as legitimate arguments.

When I presented this argument in my discussion with the property law professor, he immediately disagreed. “What about,” he asked, “laws designed solely to achieve some economic benefit?” He argued that such laws were not based on morality because they were only intended to promote the production of goods (like televisions, food, cellphones, etc) that have no moral aspect at all. This argument touches on but misapplies an important point. Clearly, an object can be good but it cannot be moral. It makes sense to describe a screwdriver as good, but it is nonsense to say that it is moral. Morality implies will—a trait that screwdrivers lack. So my property law friend was partially correct to claim that the goods that a law seeks to promote may lack a moral aspect. But his argument fails because laws are not simply assertions of fact; laws constrain human action. So, a law designed to achieve an economic benefit is not simply a non-moral judgment that economic benefits are good; it also implies the moral judgment that people should act (and government should force them to act) in ways that produce economic benefits.

Recognizing that all laws are ultimately based on moral judgments has important consequences. It means that objecting to a law because it is based on morality simply doesn’t make sense for the non-anarchist. It also means experts in economics, law, and public policy are not necessarily experts on the legitimacy of laws; experts on the legitimacy of laws are those who have a clear, deep understanding of moral truth. Perhaps most important, recognizing that all laws are ultimately based on moral judgments places moral and immoral individuals on an equal footing when discussing politics.

Political movements are successful only insofar as they appeal to popular moral justifications. Honest politicians do this by explaining the moral justifications they rely on and attempting to persuade others to adopt those justifications. Dishonest politicians hide the moral implications of their political goals and instead present widely accepted but inapplicable moral values. The gay rights movement has used this latter strategy with marked success by injecting the popular moral judgment of equality before the law into the gay marriage debate. See my previous post. The fact that the decision in Maine to deny marriage licenses to gay couples was a moral judgment in no way invalidates that judgment. It simply shows that the majority still rejects homosexuality as immoral, and that it has not fallen for the equal protection ruse.

Before ending I want to clarify two possible misunderstandings that are not directly relevant but could arise from this post. The claim that laws are unavoidably tied to morality does not contradict the existence of natural law, nor does it in any way endorse moral relativism. Moral judgments can be accurate or inaccurate just like any other kind of judgment; natural law is the articulation of accurate moral judgment.

Blood and Bone Marrow

Friday, October 30th, 2009

The debate over the federal takeover of America’s health care has absorbed the attention and efforts of political activists of every persuasion. But two days ago the Institute for Justice, the nation’s premier public-interest law firm, launched a case that starkly illustrates the bad results of government interference with individual liberty in healthcare decisions.

Section 274(e)(a) of the National Organ Transplant Act reads in part, “It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.” If an individual violates this provision, that individual is subject to a penalty of up to five years in prison and or a $50,000 fine. Section 274(e)(b). And, thoughtlessly, congress chose to include bone marrow in the definition of human organ. Section 274(e)(c).

What this means is that even if you happen to have a disease that requires a bone-marrow transplant, like the plaintiffs in the suit filed by the Institute for Justice, the law forbids you from purchasing bone-marrow from potential donors who need an incentive other than good will and social approval. If you do make such a purchase, you are a criminal under the present law.

Now, if you are a liberty-minded individual, a question may have bubbled up in your mind during the above exposition: How under the Constitution of the United States, can congress have the power to criminalize the purchase of bone marrow? Where did congress get the power to regulate what an individual chooses to do with his or her own body? The answer to this question is found in the final words of Section 274(e)(a) quoted above, “if the transfer affects interstate commerce.” This phrase invokes what is known in constitutional law as the “Commerce Clause.” This horribly abused bit of language is found in Article I Section 8 clause 3 of the constitution: “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Congress has invoked the Commerce Clause to regulate everything from the relationship between employers and employees (NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)), to home gardening (Wickard v. Filburn, 317 U.S. 111 (1942)). Congress has persuaded the Supreme Court to go along with it in expanding this power so far that it can now regulate any action that could in any way have an impact on interstate commerce—even if only in the aggregate.

Thus, through a very strained interpretation of a single sentence, congress can regulate any transaction, including the purchase of bone marrow. But challenging the Commerce Clause is not the subject of the Institute’s law suit—sadly we are too far down the road to statism now for that challenge to be effective. Even if you accept the idea that congress should paternalistically forbid transactions that it decides may be unwise, prohibiting the sale of bone marrow doesn’t make sense. So the challenge brought by the Institute for Justice is based on the doctrines of equal protection and due process:

NOTA’s criminal ban violates equal protection because it arbitrarily treats renewable bone marrow like nonrenewable solid organs instead of like other renewable or inexhaustible cells—such as blood—for which compensated donation is legal.  That makes no sense because bone marrow, unlike organs such as kidneys, replenishes itself in just a few weeks after it is donated, leaving the donor whole once again.  The ban also violates substantive due process because it irrationally interferes with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

Institute for Justice Press Release

In other words, there is no legitimate reason to distinguish between compensation for blood donations and compensation for bone marrow donations. Congress just happened to ban one and permit the other. Consequently, individuals who could otherwise be successfully treated are dying because they are forbidden from using money to motivate compatible donors.

The fact that congress chose to irrationally regulate the sale of bone marrow gives the lie to those pundits and politicians who insist that the federal health care takeover now in progress will not restrict access to medical care. Is it rational to expect that once the federal government is providing health insurance, setting the prices that doctors can charge, and forcing individuals to purchase the type of health care congress approves of, that we can avoid more laws that are just as inane as the current bone marrow regulations? Not hardly.

To add even more irony to the picture, read the stated intent for the National Organ Transplant Act: “To address the nation’s critical organ donation shortage and improve the organ matching and placement process, the U.S. Congress passed the National Organ Transplant Act.”

Health care isn’t a social project that well-heeled bureaucrats can beneficently tinker with. They are not gods, kings, or even experts. They are exceedingly fallible men and women who—even when they are not in the pocket of a special interest—somehow manage to get themselves into moral, financial, and legal trouble.

As Chip Mellor, the president and general counsel of the Institute for Justice, wisely said, “Bad things happen when the federal government exceeds its constitutional authority.  In this case, people actually die. ”

Cash for Clunkers: Sisyphism

Wednesday, September 16th, 2009

“And I saw Sisyphus at his endless task raising his prodigious stone with both his hands. With hands and feet he tried to roll it up to the top of the hill, but always, just before he could roll it over on to the other side, its weight would be too much for him, and the pitiless stone would come thundering down again on to the plain. Then he would begin trying to push it up hill again, and the sweat ran off him and the steam rose after him.” Homer, The Odyssey Book XI (trans. Samuel Butler 800 B.C.).

In his work Sophisms of the Protectionists, Frédéric Bastiat pointed to Sisyphus as the epitome of “infinite labor; result nothing.” Frédéric Bastiat, Sophisms of the Protectionists (trans. Horace White 1870). He used this image to illustrate the absurdity of political doctrines that by intent or effect promote labor itself as a desirable goal rather than as merely the means to a goal. He called this absurdity “sisyphism.”

Despite the origin of the term, sisyphism does not usually plague individual behavior because, setting aside slavery and charity, individuals do not usually labor for nothing. Instead, sisyphism is a malady caused by politicians and suffered by nations.

A recent example of sisyphism is the acclaimed cash for clunkers program. The buyer owns an item of value—a clunker—and takes it in to the car dealership to be destroyed. In return the government transfers wealth from the public to the car dealership and the car dealership in turn transfers a new car to the buyer. The total estimated transfer from the public to buyers was $2.877 billion. Each transaction diminished the nation’s overall wealth: the value of the clunker was lost and no new value was created. Even if you think that robbing the public is okay if it protects the health of the environment, the program was still a failure according to NPR (this despite NPR’s statist bias). Yet Nancy Pelosi congratulated congress and U.S. Transportation Secretary LaHood claimed it was “a win for the economy, a win for the environment and a win for American consumers.”

This is not sisyphism’s first appearance and certainly will not be its last. Watch for it in the coming months as pundits and politicians attempt to justify or implement economic policies. Take note of the benchmarks they use to measure success. Will they focus on new jobs (labor) or wealth creation (value)?

In the mean time, struggle on America in your “endless task.” Invent, imagine, work, and suffer til the sweat runs off you and the steam rises after you. Just don’t get crushed when the stone comes rolling back down.

No, You Are Not America

Monday, August 24th, 2009

Unfortunately for the cause of liberty, many people have grown accustomed to judging whether government action is right by looking to its societal consequences. This method of judgment is so commonly accepted that many people would be surprised to learn that another method exists. People are used to consequence-driven decision-making; they are accustomed to making decisions by determining whether a particular course of action will produce the consequences they desire. In microeconomics this feature of human behavior is called “rational choice theory” or “rational action theory.” However, this consequence-driven method of judgment undermines individual liberty when it is used in government decision-making.

It is not offensive for an individual to choose his course of action by attempting to predict what will promote his personal values and goals. People commonly accept the idea that an individual is entitled to choose for himself how he wishes to spend his time and resources. And it is now almost a cultural heresy to tell someone else what his goals or values ought to be. Strangely, though, these principles are forgotten in the political arena. When individuals discuss government action they suddenly assume that they have the right to impose their values and goals on the rest of the nation. I call this the “I am America” mentality (no reference is intended to Steven Colbert’s book).

The “I am America” mentality expresses itself in policies that restrict the liberty of individuals who have not violated anyone’s rights for the supposed good of the community/nation/world. A few examples of such policies are government health care, public education, social security, financial regulations, and licensing laws. Proponents of these policies seek to excuse using force to redistribute wealth or restrict liberty by claiming that the harm to those whose wealth/liberty is taken is outweighed by the overall societal benefits that result. In other words, the “I am America” mentality adopts a variation on Spock’s line in The Wrath of Khan: “the needs of the many outweigh the [liberty] of the few. Or the one.” The theory of ethics that supports this moral philosophy is called Utilitarianism.

John Stuart Mill, the philosopher who named Utilitarianism, explained it as follows:

The creed which accepts as the foundation of morals Utility, or the Greatest Happiness Principle, holds that actions are right in proportion as they tend to promote happiness; wrong as they tend to produce the reverse of happiness. By happiness is intended pleasure and the absence of pain; by unhappiness, pain and the privation of pleasure.

John Stuart Mill, Utilitarianism 9-10 (4th ed. 1871). In other words, if an action promotes happiness or pleasure it is morally right. Notice that Utilitarianism looks to the consequences of an action (does it promote happiness or not) to determine its morality. This begs the question, consequences for whom? Whose happiness is the benchmark of morality for Utilitarianism? Mill goes on to explain, “that standard is not the agent’s own greatest happiness, but the greatest amount of happiness altogether.” Id. at 16. He elaborates further, “the happiness which forms the utilitarian standard of what is right in conduct is not the agent’s own happiness but that of all concerned. As between his own happiness and that of others, utilitarianism requires him to be as strictly impartial as a disinterested and benevolent spectator.” Id. at 24.

I have no objection to Utilitarianism as a system of ethics for individual action, but its application as a tool for determining government action threatens individual liberty. It is this misuse of Utilitarianism—as a tool for determining government action—that I call the “I am America” mentality. Here is why. Those who espouse Utilitarianism in government decision-making audaciously presume to enforce their conception of what is good and what brings happiness on everyone else. The thought process goes something like this. “I think that it is good for children to receive an education, so it is alright to force everyone to pay for it.” Or, “I think it is good to provide care for the elderly and the poor, so it is alright to force everyone to pay for it.” Or, “I think is good to regulate risk in the financial industry, so it is alright to force financiers to adopt a level of risk that I think is reasonable.” Of course when pitched over the politician’s pulpit the “I think” is left off, giving the statement the sound of an indisputable truth (e.g. “It is good to regulate the financial industry”), but the “I think” should always be impliedly appended.

There are two glaring problems with the “I am America” mentality: foreseeability and responsibility.

The “I am America” mentality in government is only possible to the extent that the consequences of a particular government policy are foreseeable. Like the primitive kings, politicians gather around themselves wizards and prognosticators (modernly called by the less interesting titles of economist and expert) to foretell the outcome of various courses of action. At least this is what the honest ones do. More frequently, politicians surround themselves with yes-men and public relations specialists. That way they can avoid any objective challenge to their personal goals and values and focus on foisting their ideology on the voters. But even the honest policy advocate—voter or political leader—is engaging in a dangerous business when seeking to predict whether a government policy will produce “the greatest amount of happiness altogether.” The success of government Utilitarianism is especially dubious in light of the fact that many of the details necessary to predict what will bring an individual happiness are known only to that individual. This alone is a compelling reason why decisions should be left in the hands of individuals.

The second problem with the “I am America” mentality is related to the first: the consequences of the ideology of those in power are borne by many people who do not share that ideology. In other words, when a government policy fails, the consequences fall on individuals who are in no way responsible for selecting the policy. Conversely, in a minimal government, economic, moral, and lifestyle decisions are made by the individuals who will bear the consequences of them.

In short, my response to those with the “I am America” mindset is this: You are no better equipped to know what is right and good than anyone else. That which makes you happy might very well make someone else miserable. You are only an individual, and as such you have no right to impose your morality or ideas about happiness on the rest of the nation. You are not America.

Of course I am not the first to voice these sentiments. Frédéric Bastiat offered a powerful criticism along the same vein in the closing lines of his magnificent work The Law:

God has given to men all that is necessary for them to accomplish their destinies. He has provided a social form as well as a human form. And these social organs of persons are so constituted that they will develop themselves harmoniously in the clean air of liberty. Away, then, with quacks and organizers! A way with their rings, chains, hooks, and pincers! Away with their artificial systems! Away with the whims of governmental administrators, their socialized projects, their centralization, their tariffs, their government schools, their state religions, their free credit, their bank monopolies, their regulations, their restrictions, their equalization by taxation, and their pious moralizations!

And now that the legislators and do-gooders have so futilely inflicted so many systems upon society, may they finally end where they should have begun: May they reject all systems, and try liberty; for liberty is an acknowledgment of faith in God and His works.

Frédéric Bastiat, The Law 76 (trans. Dean Russell 2nd ed. 1998).

Amen!