Category: Academic Freedom – Civil Liberties – Privacy

Good News, Bad News for Free Speech

Many bloggers will like this rule being considered by the Federal Election Commission (via The Volokh Conspiracy):

No expenditure results where an individual, acting independently or as a volunteer, without receiving compensation, performs Internet activities using computer equipment and services that he or she personally owns for the purpose of influencing any Federal election, whether or not the individual’s activities are known to or coordinated with any candidate, authorized committee or party committee.

That’s the “good” news. The bad news it that such a rule might be required in the first place. Whatever happened to this quaint concept:

Congress shall make no law…abridging the freedom of speech…. [Amendment I, Constitution of the United States of America]

If it was good enough for little Jemmy Madison, it should be good enough for the intellectual pipsqueaks who now prowl the corridors of Congress.

Killing Free Speech in Order to Save It

UPDATED THRICE BELOW

We all know about McCain-Feingold. Now we have the slippery logic of Prof. Geoffrey R. Stone of the University of Chicago Law School. Stone is a colleague of Cass Sunstein, a fellow traveler on the road to thought control.

Stone is debating Eugene Volokh at Legal Affairs Debate Club, on the topic “Forget Free Speech?” Stone slides this immodest proposal into his rather slick “defense” of free speech:

I agree that private employers are different. Even in employment discrimination law, we recognize that it would be inappropriate for the law to intrude too deeply into personal relationships. Thus, small employers are exempt. Similarly, we don’t make it unlawful for a person to refuse to date a person of another race. Thus, the law shouldn’t concern itself with individuals who decide not to buy the Dixie Chicks’s records because they dislike their political views.

But the logic of this doesn’t extend to a decision, for example, by General Motors to refuse to employ people who oppose the war in Iraq. Large corporations have substantial market power, and I see no reason to allow them to leverage that market power in this way any more than we let them discriminate on the basis of religion….

To the point about using antidiscrimination laws to promote tolerance of people of other races, religious, and ethnicities, I would say the same about political differences. Isn’t that the view that Lee Bollinger championed as a primary function of the First Amendment itself? Certainly, a more “tolerant society,” a less polarized society, one in which citizens come to understand, in Jefferson’s words, that not “every difference of opinion is a difference of principle,” is something to which we should aspire. And, as for the Klansman, perhaps tolerating his presence in the workplace would be good both for him and for us. No?

So, let’s just take another big slice out of liberty and prosperity by placing yet another burden on the private sector, the burden of being an equal-viewpoint employer. Why should General Motors, regardless of its size, be required to operate under such constraints? General Motors ought to be able to hire persons whose performance will help the bottom line, and thus help society. If an employee says something that embarrasses General Motors and potentially hurts its bottom line, General Motors ought to be able to fire that person — no ifs, ands, or buts.

But in the world of Sunstein and Stone, we can — and must — legislate and regulate our way to a “tolerant society.” Hah! Notice how well it worked when forced busing was used to integrate schools?

Stone, slippery lawyer that he is, doesn’t give a hoot about Klansmen. What he really wants is to make it illegal for employers to fire anyone for saying anything that seems critical of government policy (Republican policy, in particular). When that’s done, he can take up the cudgels for the Dixie Chicks and go after radio stations that refuse to play their songs.

What Sunstein and Stone mean by “free speech” is “forced listening.” Reminds me of the brainwashing scene in the movie 1984. They’ll like the results as long as they get to play Big Brother.

UPDATE: Yep, Big Brother. Here’s Stone in a later installment of the debate:

Even if I concede arguendo that private discrimination on the basis of viewpoint need not be equated with private discrimination on the basis of race, religion, or gender, we have to be concerned about private discrimination that begins seriously to threaten the marketplace of ideas. The point isn’t that such private discrimination would be unconstitutional, but that the government should step in and prohibit such discrimination through legislation if it begins to warp public debate.

In other words, if I’m in control of government and I decide that “private discrimination on the basis of viewpoint” has threatened “the marketplace of ideas,” I should step in to prohibit such discrimination when, in my infallible judgment, it begins to “warp” public debate. I therefore decree the following:

  • An employer can’t fire anyone who makes a public statement critical of the employer.
  • A right-wing radio talk-show host who has a huge audience must give equal time to left-wing ideas.

What Stone and his ilk don’t seem to understand (or choose to ignore) is that government involvement (choosing sides) warps the public debate. For every employer who fires a critical employee and for every popular right-wing talk-show host there are legions of protestors and political opponents whose messages the mainstream media amplify, with gusto. That’s the marketplace of ideas in action. Or do Stone and his ilk favor the suppression of the mainstream media? I doubt it very much. They’re just looking for a pseudo-legal justification for the suppression of speech they don’t like.

What the marketplace of ideas needs is less government involvement, not more.

UPDATE II: Stone, in his most recent volley, adds this:

My argument does not meet any of the conditions for McCarthyism (unless you think I am being intentionally manipulative in order to score partisan political gain).

He said it.

UPDATE III: And Eugene Volokh nails him:

It does sound, though, like the definition of “McCarthyism” that’s being suggested is mighty convenient for its users….After all, under this definition exactly the same criticisms—with exactly the same level of substantive merit—would be “McCarthyism” when used by one side and quite proper when used by the other.

Cheney says that voting for Kerry would endanger the nation. That’s McCarthyism, because it comes from this bad administration. Nancy Pelosi says that voting for Bush would endanger the nation. That’s just fine, if you think Democrats are open-minded, unself-righteous (except, of course, when they’re harshly deriding the Bush Administration), attentive to separation of powers and the rule of law, interested in debate, and sophisticated and introspective, with complex views of faith and suitable appreciation for gray areas. Oh, and also respectful of international law and filibusters.

Such use of the term “McCarthyism,” which seems to presuppose what it’s trying to show—which is that one’s targets are bad people—isn’t terribly useful for sober analysis. Wouldn’t it have been more profitable to instead discuss, for instance, whether voting for Bush or Kerry would indeed endanger the nation? That was actually a pretty important question a few months ago.

As best I can tell, public debate about the Administration, the war, civil liberties, and the best ways to fight terrorism has been quite vibrant. If there’s a “substantial chilling effect on the willingness of individual citizens to criticize the government,” I haven’t noticed it. The 2004 Democratic election campaign, for instance, didn’t seem to be unduly obsequious to the Bush Administration. Nor do I see much evidence of “an exaggerated sense of fear in the public,” or even attempts to create such a fear. The world is a dangerous place and I have no reason to think that people are any more fearful of terrorism than they ought to be.

So I think free speech in America is pretty healthy. There are some exceptions; I have long, for instance, criticized hostile environment harassment law, a vague, broad, and viewpoint-based set of speech restrictions. Likewise, some media responses to supposedly unpatriotic speech have indeed been misplaced; Bill Maher, for example, got a bum deal. And, sure, many people in many places—government, universities, the media—are smug and closed-minded, and too often try to name-call people into submission. That ought to be fought. Still, things today are pretty good.

And tomorrow? No-one can tell for sure, but fortunately there are plenty of people and organizations who will fight future attempts at repression, whether from the left or from the right. Geof, I know you’ll be one of them, and I’m very glad about that.

In other words, if you really favor free speech, you favor it for everyone,* not just the lefties favored by Stone.
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* I make an exception for overtly traitorous speech, which I come to in a future post about legal absolutism.

Protecting Your Civil Liberties

Judge Won’t Order Schiavo Tube Reinserted

The ACLU, of course, applauds the decision:

Howard Simon, executive director of the American Civil Liberties Union (news – web sites) of Florida, praised the ruling: “What this judge did is protect the freedom of people to make their own end-of-life decisions without the intrusion of politicians.”

But Terri Schiavo didn’t make her own “end-of-life” decision. It’s her putative husband’s decision, not hers.

UPDATE: Timing is everything. Terri Schiavo suffered the heart attack that brought on her “persistent vegitative state” in 1990. She received “continuing neurological testing, and regular and aggressive speech/occupational therapy through 1994.” Why did Michael Schiavo wait until May 1998 before petitioning a court for the removal of his wife’s feeding tube?

And on what basis did Judge George W. Greer in February 2000 decide that Terri Schiavo would have chosen to have her feeding tube removed? He made a god-like decision to kill Terri Schiavo, pursuant to Michael Schiavo’s petition. His decision was predicated not on Terri Schiavo’s expressed wishes — which are undocumented — but on his view that Terri Schiavo cannot be healed.

A month later, as if to prove himself right, Judge Greer refused to allow “swallowing tests” on Terri Schiavo. Then, in April 2001, he refused to entertain testimony from a former girlfriend of Michael Schiavo that he had lied about Terri Schiavo’s wishes. Why? Because the testimony would have been “untimely.” Judge Greer had already made up his mind to kill Terri Schiavo, you see.

UPDATE II: Donald Sensing (One Hand Clapping) has a post about Judge Andrew Napolitano’s take on the case:

[Napolitano] said that the relevant transcripts, which he has examined, reveal that the Florida courts ruled that it was Terri’s actual desire, based on testimony by Michael Schiavo and others, all of whom were cross-examined, that she had legitimately expressed a desire not to be kept alive in the medical condition she came into….

Napolitano didn’t discuss the fact the Florida law allowed for acceptance in this case of hearsay testimony that Terri had expressed a desire not to be kept alive in her present condition.

Hearsay testimony. How convenient. The next steps down this slippery slope will go something like this:

1. A family will petition a court to end the life of an aged parent who is sentient but in declining health.

2. The family will produce as evidence for their petition a sociological study on a par with Kenneth Clark’s phony “doll test,” on which the Supreme Court relied in Brown v. Board of Education (1954). The study will “prove” that persons over the age of 80 have a death-wish.

3. A court will approve the petition.

4. The court’s decision will become a controlling precedent.

5. Say “goodnight,” Gracie.

FINAL UPDATE: Yankee from Mississippi, in a post titled “This Is All I’ll Say,” says it best:

I think that with the current structure of the law, there is no legitimate way to save [Terri Schiavo’s] life. And by legitimate, I mean any way that would not seriously call into question the competency and institutional credibility of our justice system. Whether or not this should be the law is, of course, an entirely different matter. Perhaps once everyone is done fighting for and over this poor woman, they will get down to actually solving the problem, one way or the other.

The way to solve the problem, in my opinion, is to enact a “presumption of life” amendment to the U.S. Constitution. That amendment would require documentary evidence of a person’s wish to die when the alternative is life on a feeding tube or respirator. The amendment would authorize Congress to specify, by law, a simple and legally binding testatmentary form that could be executed in the presence of impartial witnesses. A properly executed form would be uncontestable.

Liberty, Democracy, and Voting Rights

I wrote recently that

we have come to [the regulatory-welfare] state because public opinion, elite opinion, and the media have combined to undo the great work of the Framers, whose Constitution prevented tyranny by the majority. Unchecked democracy has become the enemy of liberty and, therefore, of material progress. As Michael Munger says, “The real key to freedom is to secure people from tyranny by the majority, or freedom from democracy.”

The last best hope for liberty and prosperity lies in the neutralization of public opinion through a renewal of constitutional principles.

A post at the now-defunct Blogger News Network caused me to leave this comment (edited lightly):

Restrict voting to persons aged 30 or older whose adjusted gross income in the preceding year was no less than one standard deviation below the mean for all filers of Form 1040 (or one of its variants). A registrant must be able to pass two tests: (1) a standardized literacy test at a level of comprehension equivalent to that of the average graduate of a suburban high school in the Midwest, circa 1955; and (2) a test of constitutional literacy, consisting of 25 multiple-choice questions on such topics as the functions of the three branches of the federal government, the rights reserved to States and people, and enumerated powers.

In other words, voters ought to have a real stake in the outcome, a modicum of intelligence, and an understanding of the proper role of government. Our drift away from those three principles that has brought us to the point where democracy — as it’s practiced in the United States — is the enemy of liberty.

How to Deal with Left-Wing Academic Blather

David French, over at FIRE’s The Torch, writes about a speech by Newt Gingrich (my comments bolded in brackets):

Gingrich asks, “What obligation does society have to fund its own sickness?” This is a good question—but it is constitutionally dangerous. One of the most common statements we hear at FIRE (in the context of both public and private schools—since almost every college and university in the United States receives significant government funding) is: “Sure, they have their right to free speech, but why do I have to fund it?” [Good question. It’s your tax dollars at work.]

In essence, what Gingrich (and others) wants is to attach viewpoint-related strings to public funds. We will “fund” speech, but only the speech we like. In the public university context, I can think of few ideas more catastrophic to free speech and open debate than the notion that the funding entity controls the political discourse of a university community. [But the funding entity can and should control a university’s academic emphasis.] Do we really want state legislators injecting themselves into tenure disputes? Deciding which English teachers deserve their salaries? The obligation of the funding entity should be viewpoint neutrality, not ideological conformity. [So, we leave ideological conformity in the hands of the left-wingers who dominate university faculties?]

Within the university setting, think of the state as funding not a point of view but a marketplace of ideas. [Balderdash! See previous comment.] The goal is to advance knowledge and freedom through public institutions that foster and support the free exchange of ideas. [The kind of blather espoused by academic left-wingers isn’t remotely related to knowledge.] The existence of a Ward Churchill is no more evidence that the marketplace is broken than the existence of the Edsel (or, even worse, the AMC Pacer) was evidence of fundamental problems in the American car market. [But the Edsel and Pacer were evidence of fundamental problems in the American car market, which have been cured to some extent by competition from Japanese makes.] Even in a perfectly functioning marketplace, Ward Churchills would exist, teach (sometimes to packed houses), and maybe even get tenure. [In a perfectly functioning academic marketplace there would be conservative and libertarian counterparts to Ward Churchill, who would also be heard.]

The real problem in our public universities is not that “bad ideas” are funded but that the marketplace of ideas itself has broken down. [As I was saying.] Through speech codes, mandatory diversity training, viewpoint discrimination in hiring and other mechanisms that violate basic constitutional protections, universities have closed the free marketplace and are often simply vendors for the prevailing political orthodoxy. If Newt wants to create positive change at our universities, he should be talking about opening them up to more ideas, not adding yet another “forbidden topic” to the long list that currently exists. [Agreed. But how does one open them to more (non-left-wing) ideas?]

How have we improved our universities if we add just one more “ism” to the long list of banned thoughts and words? Campuses have already banned subjectively defined expressions of racism, sexism, homophobia, and so on. Do we solve anything by including “anti-Americanism”? If the state and federal government have any role in this dispute, it is to take steps to restore the free marketplace, not to add further restrictions. [Perhaps restoring the free marketplace at universities requires the application of something like an intellectual anti-trust act, to break up the left’s stranglehold on most universities.]

Actually, although Ward Churchill and his ilk are despicable human beings, I don’t care what they say as much as I care that they represent what seems to pass for “thought” in large segments of the academic community. Clearly, universities are failing in their responsibility to uphold academic standards. Left-wing blather isn’t knowledge, it’s prejudice and hate and adolescent rebellion, all wrapped up in a slimy package of academic pretentiousness.

The larger marketplace of ideas counteracts much of what comes out of universities — in particular the idiocy that emanates from the so-called liberal arts and social sciences. But that’s no reason to continue wasting taxpayers’ money on ethnic studies, gender studies, and other such claptrap. State legislatures can and should tell State-funded universities to spend less on liberal arts and social sciences and spend more on the teaching of real knowledge: math, physics, chemistry, engineering, and the like. That strikes me as a reasonable and defensible stance.

It isn’t necessary for State legislatures to attack particular individuals who profess left-wing blather. All the legislatures have to do is insist that State-funded schools spend taxpayers’ money wisely, by focusing on those disciplines that advance the sum of human knowledge. Isn’t that what universities are supposed to do?

Favorite Posts: Academic Freedom and Freedom of Speech

What Is the Point of Academic Freedom?

Just read:

Marketplace of Fear

New Proof That Man Has Created Global Warming

How Global Warming Research Is Creating a Climate of Fear

Ego, Testosterone, and the Academy: Why the Controversy Over Larry Summers Is Important

And that’s only the teeny-tiny pointy tip of the iceberg — as you know well, unless your only source of news is Dan Rather.

Academic freedom isn’t an end unto itself, it’s a means to an end, which is to debate the truth. Where there is no debate, the truth (or something approaching it) is unlikely to emerge, to the detriment of education, in particular, and human progress, in general. As I wrote here (apropos Ward Churchill’s aborted appearance at Hamilton College): Educators are paid not only to educate but also to educate well. Maybe it’s time for political-point-of-view quotas for professorships.

Favorite Posts: Academic Freedom and Freedom of Speech

Free Speech and Limited Government

As I said in an earlier post, I defend Ward Churchill’s right to speak his mind, just as I defend the right of Hamilton College to decide whom to invite and disinvite to its campus. By the same token, it is my right to say that Ward Churchill is a despicable person and an obtuse moral relativist who seems bent on undermining the system that enables him to spew his vile opinions. (See for yourself.)

With that out of the way, I want to take up this statement by Minnie Quaich, writing at FIRE’s The Torch:

Again and again, we find that anything that can be offensive, inappropriate, and counterproductive ravings to some might very well be provocative, useful, and critical discourse to others. The widely differing and competing reactions to even the most controversial expression like Churchill’s prove how vital it is to protect freedom of speech in this country, on campus, and beyond.

Wonderful. But what about speech that fosters the restriction of speech,* if not the wholesale suppression of liberty? Suppose that a compelling speaker is able to convince a supermajority of the populace that it’s dangerous to have people running around saying certain things in public? Suppose that supermajority is able to pass a constitutional amendment that restricts speech? Or just suppose that government — acting at the behest of “the people” — effectively does the same thing by statutorily restricting certain forms of speech (as in campaign-finance “reform”)?

In other words: Free speech cannot flourish unless government is restricted to its “nightwatchman” role. Yet free speech seems inevitably to produce an intrusive government.** And an intrusive government seem inevitably to issue restrictions on speech, among other forms of liberty.

Before you draw the wrong conclusion, consider this: If government could declare certain topics (e.g., the role of government) off-limits in the name of liberty, I have no doubt that government would be even more intrusive and restrictive of liberty.
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*To be clear about it, I don’t consider the following to be improper restrictions of speech:

  • non-governmental criticism of speech
  • non-governmental ostracism of persons or entities whose speech is disagreeable
  • the owner of private property dictating what may be said on his property
  • disciplining an employee for saying things that may damage the employer’s business
  • prosecuting directly injurious speech (e.g., slander, libel, and intimidation).

** The existence of a written constitution that is supposed to restrict the scope of government seems to be ineffectual in the face of free speech. It is easy to coax the genie of big government out of the bottle, but damnably difficult to coax him back into the bottle.

Favorite Posts: Academic Freedom and Freedom of Speech

A Different Perspective on the Ward Churchill Affair

The Chronicle of Higher Education has a nice summary of l’affaire Churchill, which prompts me to break my silence about the whole business.

Churchill’s right to speak has its defenders among conservatives and libertarians (e.g., Stephen Bainbridge, Eugene Volokh, and FIRE). I agree fully that Churchill’s right to speak shouldn’t be abridged, though he must be prepared to pay the consequences of outrage, ostracism, and unbridled criticism for his assertion that those killed in the World Trade Center were not innocent civilians but “little Eichmanns.”

But the cancellation of a speaking engagement at a university isn’t an abridgment of speech. Neither Churchill nor anyone else has a right to speak on private property unless he is invited to do so. A university, after all, has the right to decide whom to invite and whom not to invite as a speaker. Suppose that instead of inviting Churchill to speak at Hamilton College, the Kirkland Project had invited a speaker who might actually have enlightened the student body with some facts instead of hateful opinion.* The world would be no wiser — and the students of Hamilton would be better off in the bargain.

The real issue in this whole, overblown affair isn’t Churchill’s freedom of speech, which hasn’t been abridged in the least. (He can stand in the middle of downtown Clinton, New York (the home of Hamilton College), and exercise his freedom of speech — with police protection — if feels compelled to do so.) The real issue is the university’s right to decide how best to educate its students. Hamilton College was about to execute a bad decision and expose its students to a “professor” who has seems to have nothing to offer but vile opinions. Fortunately for the students, Hamilton’s administration came to its senses. As William Klinkner, an associate professor of government at Hamilton, puts it:

“Colleges, if they choose to be a marketplace of ideas, have to be willing to bring in people who say pretty repugnant things.” Nevertheless, he adds, “If I want to have someone come to class to talk about problems with the Treaty of Versailles, I don’t have to bring in a Nazi.”

Precisely. Educators are paid not only to educate but also to educate well. Perhaps the Churchill affair will serve as a reminder that gratuitous titillation isn’t education.
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* An unlikely event, given the Kirkland Project’s agenda:

THE KIRKLAND PROJECT for the Study of Gender, Society and Culture is an on-campus organization committed to social justice, focusing on issues of race, class, gender, sexuality, disability, as well as other facets of human diversity.

Favorite Posts: Academic Freedom and Freedom of Speech

Going Too Far with the First Amendment

Michael C. Dorf writes at FindLaw.com about “Why It’s Unconstitutional to Teach ‘Intelligent Design’ in the Public Schools, as an Alternative to Evolution.” Dorf — siding with the ACLU — argues that the Dover, Pennsylvania, School Board has violated the First Amendment’s Establishment Clause “by mandating that students in public school biology classes be taught the theory of ‘intelligent design’ as an alternative to evolution.”

The Establishment Clause says that “Congress shall make no law respecting an establishment of religion….” That provision, with many other parts of the Bill of Rights, became binding on the States by “incorporation” under this provision of the Fourteenth Amendment:

…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So far, so good. But Dorf then goes on to argue the the courts should test the School Board’s mandate by asking

whether intelligent design is, in fact, a scientific theory at all. It should do so, not because of any general obligation on the part of schools to teach science correctly, but simply because if intelligent design is not science, then the inference is almost inescapable that the state is impermissibly acting for the purpose of fostering a religious viewpoint.

Think of the fine mess we’d be in if the courts were to rule against the teaching of intelligent design not because it amounts to an establishment of religion but because it’s unscientific. That would open the door to all sorts of judicial mischief. The precedent could — and would — be pulled out of context and used in limitless ways to justify government interference in matters where government has no right to interfere.

It’s bad enough that government is in the business of funding science — though I can accept such funding where it actually aids our defense effort. But, aside from that, government has no business deciding for the rest of us what’s scientific or unscientific. When it gets into that business, you had better be ready for a rerun of the genetic policies of the Third Reich.

A Final Volley

Timothy Sandefur’s latest post in our exchange of views about the origin of rights is helpful because it enables me to pinpoint the source of our apparent disagreement. We have been talking past each other.

Sandefur has insisted that “rights are real even when they are not being enforced.” He finally makes clear (to me) that his basis for saying that rests on the proposition of self-ownership. That is, if we own ourselves — and I agree that we do — then our right to be left alone, as long as we leave others alone, arises from within and is not a grant from anyone else — not a family, a Pleistocene hunting party, a tribe, or a formally constituted state.

I’ve been taking all of that for granted. I’ve expressed the concept of self-ownership — ineptly, it seems — in my notion of a primordial yearning for rights among humans. Sandefur asks,”Is their “yearning” based on the fact that, as human beings, there are certain things that may be done and not done to them…?” Yes, of course.

What I’ve been talking about in my exchange with Sandefur isn’t whether rights are real, or whence they flow, but how they are given force. There is a difference between having a right and being able to exercise that right. That’s where groups come in, be they families, Pleistocene hunting parties, tribes, or formally constituted states. Even though there are certain things that may not, by right, be done to an individual, the individual may not be able to prevent those things without help from others. And it often takes political bargaining to procure that help. (Politics precedes the state and goes on independently of it, for politics is “the process and method of decision-making for groups of human beings. Although it is generally applied to governments, politics is also observed in all human group interactions….”)

In the extreme case, a multitude of individuals will band together to overthrow a government and to form a nation-state for the purpose of preventing the existing government from oppressing the rights of the multitude. That was the rationale for the American Revolution. It was also the ostensible rationale for the Russian Revolution (among many others of its ilk), and look where that led.

So, I don’t insist — and have never insisted — that the state is the source of rights. All I’ve been trying to say is that the state may (or may not) enable persons to exercise their rights. In the United States, for example, the central government was formed so that Americans could exercise certain rights, but the same government was an accessory to the practice of slavery, for almost 80 years following the end of the Revolutionary War. Then, with Lincoln’s accession to the presidency, the central government not only opposed slavery but fought a war that ended it. The central government also since acted to recognize and enforce rights in other instances (e.g., securing votes for women, securing votes for blacks, and ending the military draft).

Yet that same central government has done much through taxation, legislation, and regulation — especially in the last 70 years — to suppress the free exercise of rights. The big question is how to reverse that suppression, as I discuss here. The two most promising ways, in my view, are through the appointment of Supreme Court justices who are federalists (in the contemporary meaning of the word) and the devolution of power to the States. As I said in my previous post,

the power I would devolve wouldn’t include the power to roll back those rights now recognized in the Constitution. Rather, I would devolve legislation, regulation, and taxation to the maximum extent consistent with preserving those rights.

There’s a lot more to be said about federalism and devolution than I have time to say right now. I’ll save it — and many other things — for the promised post in which I will state systematically what I believe about rights, government, and governance.

In closing, I hope that this post clears up the apparent disagreement between Sandefur and me about the origin of rights and the role of government in securing the free exercise of rights. If it doesn’t, so be it. For, this is my last volley in this exchange, and my last substantive post at this blog, but for the one mentioned above, which I’ll get to in my own good time. I’m taking a break from blogging and from reading blogs — probably a long break, perhaps a permanent one.

Sandefur and God

Timothy Sandefur, has responded to “Rights and Obligations“) in this post. I will not address Sandefur’s post point-by-point here. Rather, I will address two of Sandefur’s key points, then, in a later post I will state systematically what I believe about rights, government, and governance. I have written dozens of posts about my views on those subjects, but I have never strung my ideas together in a single post, which may explain Sandefur’s apparent misunderstanding of my views.

Sandefur opens by saying that “[t]here are many reasons to object to [my] view that rights are conferred by ‘political institutions’.” I have many reasons to object to Sandefur’s mischaracterization of my political philosophy throughout his post, not the least of which is the allegation that I deny that the Constitution “is based on pre-political notions, such as equality or consent.” To the contrary, as I said in the very post that he attacks,

[h]uman beings — having a primordial yearning for rights — form a political institution and adopt a constitution for the purpose of defining and securing those rights, as they define them through bargaining.

He has a problem with the final clause of that sentence, which I’ll come to. For now, I want to set the record straight about my view of the origin of rights. When I agree with Maxwell Borders (whom I was quoting) where he says that “[r]eal rights are conferred by political institutions,” I agree because the operative word is “real” — as opposed “dreamt of” or “hoped for” or “recognized and enforced by common consent within a band of hunter-gatherers, only to be violated by a rival band of hunter-gatherers.” The rights of Americans are not “real” unless they are secured (to the extent practicable) through the police, courts, and armed forces — and sometimes even by Americans acting in their own defense.

Sandefur might object to the sense in which I am using “real.” For, he says that “[r]eality is not ‘defined’ by some entity standing outside of it and determining its contents; it simply is.” Regardless of where rights come from, I don’t think they’re “real” until they’re actually recognized and enforced (realized) — be that by a band of hunter-gatherers that’s able to police itself and repel marauders; be that by the police, courts, and armed forces of the United States of America; or be that by those relatively few Americans who have the wherewithal to defend themselves against direct attacks on their persons and property. If Sandefur means to imply that rights are “real” in a Platonic sense, that is, existing independent of the human mind, then he simply believes in a different kind of god than that of the religionists whose beliefs he rejects. (I apologize if I’m misinterpreting him as badly as he misinterprets me.)

The second point I will address here is Sandefur’s suggestion that my view about the role of political institutions in the realization of rights makes me something other than (less than?) a libertarian:

[H]ow is [he] to object when the “political institutions” which create our rights are drawn in such a way as to exclude blacks, or other politically unpopular minorities from the “bargaining” process? [He] has (I hope, unknowingly) adopted the view of Stephen Douglas, which is as far from libertarianism as one can go. True libertarianism reveres the freedom of the individual. [He], however, has adopted a principle that reveres the freedom of states. It is not neo-libertarian; it is paleo-conservative.

Here, Sandefur conflates the ideal and the real. Libertarianism is an ideal (perhaps a Platonic ideal in Sandefur’s mind). Its tenets can be realized only through political bargaining — whether that’s in a band of hunter-gatherers or in the United States of America — which sometimes takes the extreme form of warfare. The ideal and the real would be identical only in a world in which almost everyone believed and practiced the tenets of libertarianism. (The holdouts could be bribed or coerced into going along.) There is no such world. To believe otherwise is to believe in a vision of human nature that is belied by history and current events. (Hobbesianism is merely a realistic view of the world.)

None of that means acceptance of the status quo by libertarians. Political bargaining led to the recognition of slavery in the original Constitution and left the question of slavery to the States. But political bargaining — in the extreme form of warfare — led to the abolition of slavery. Further political bargaining, led to Brown v. Board of Education, its enforcement, and the Civil Rights Act of 1964, and so on. The end of slavery and the recognition of equal rights for blacks couldn’t have been attained without political bargaining.

Do I want to devolve some power to the States and, thereby, to the people? You bet (as I have discussed here and here). But the power I would devolve wouldn’t include the power to roll back those rights now recognized in the Constitution. Rather, I would devolve legislation, regulation, and taxation to the maximum extent consistent with preserving those rights. (For more about my view of the respective powers and rights of the central government, the States, and the people, read this, this, and this.)

So, you can call me a classical liberal, a libertarian, a neo-libertarian, or Hobbesian libertarian (and I have called myself each of those things at one time or another, in an effort to label my principles) — but I don’t see how anyone can suggest that I might be a paleo-conservative. That would be as off-target as suggesting that Sandefur is a Christian.

Sandefur may choose to comment on this post; that’s his prerogative. But he might want to wait until I’ve systematically exposed my views about rights, government, and governance in the followup post.

Rights and Obligations

When it comes to the origin of rights,* I’m with Maxwell Borders, who — in the course of a long, delightful post at Jujitsui Generis — says this in reply to another blogger:

…“Real rights are conferred by political institutions” is not the same as saying “real rights are conferred by a sovereign.” The former expresses the complex relationship in a social contract between agents, their laws, and their government. So, yes, they are both conferred and protected by such institutions, unless you are one of these anarcho-capitalists who lives in a fantasy world where private Team Americas will go off and protect us from the baddies….

I would put it just a bit differently: Human beings — having a primordial yearning for rights — form a political institution and adopt a constitution for the purpose of defining and securing those rights, as they define them through bargaining.** The U.S. Constitution, as amended, therefore amounts to a contract. (It’s an unusual sort of contract, to be sure, in that breaches are hard to remedy and those who inherit it can amend it only by an arduous process.)

A contract that grants rights usually assigns obligations, as well. What obligations does the U.S. Constitution implicitly or explicitly assign to Americans, as citizens? Here’s my list, in no particular order:

  • Obey the law, generally
  • Pay taxes
  • Accept the money of the United States as legal tender
  • Respect patents, copyrights, and other recognized forms of intellectual property
  • Refrain from rebellion and insurrection
  • Serve in the armed forces (if the law requires it)
  • Refrain from committing treason
  • Serve on juries
  • Do not take anyone into slavery or involuntary servitude.

The list doesn’t seem onerous. Then I think about some of the laws we must obey and the burden of taxation we bear. That line of thinking enables me to understand what drove a brave band of men to rebel against British rule, create a new nation, and establish the Constitution — which has been so badly breached.

__________
* I’ve addressed the nature and origin of rights in several posts at Liberty Corner: here, here, here, here, here, and here. (Please overlook the somewhat sloppy treatment of natural rights in the earlier posts.)

** Of course, things don’t always work out as intended. See here, here, and here, for example.

The Face of "Academc Freedom"



Prof. Hamid Dabashi of Columbia University.

Remember the name and face. Here’s why (from the New York Daily News):

In the world of Hamid Dabashi, supporters of Israel are “warmongers” and “Gestapo apparatchiks.”

The Jewish homeland is “nothing more than a military base for the rising predatory empire of the United States.”

It’s a capital of “thuggery” – a “ghastly state of racism and apartheid” – and it “must be dismantled.”

A voice from America’s crackpot fringe? Actually, Dabashi is a tenured professor and department chairman at Columbia University. And his views have resonated and been echoed in other areas of the university.

Columbia is at risk of becoming a poison Ivy, some critics claim, and tensions are high.

In classrooms, teach-ins, interviews and published works, dozens of academics are said to be promoting an I-hate-Israel agenda, embracing the ugliest of Arab propaganda, and teaching that Zionism is the root of all evil in the Mideast.

In three weeks of interviews, numerous students told the Daily News they face harassment, threats and ridicule merely for defending the right of Israel to survive.

And the university itself is holding investigations into the alleged intimidation.

Dabashi has achieved academic stardom: professor of Iranian studies; chairman of the Middle East and Asian languages and cultures department; past head of a panel that administers Columbia’s core curriculum.

The 53-year-old, Iranian-born scholar has said CNN should be held accountable for “war crimes” for one-sided coverage of Sept. 11, 2001. He doubts the existence of Al Qaeda and questions the role of Osama Bin Laden in the attacks.

Though Dabashi and his fellow travelers on the loony Left aren’t necessarily a majority in academia, they’re not far from its mainstream. Consider this report from The New York Times:

…[A] national survey of more than 1,000 academics, shows that Democratic professors outnumber Republicans by at least seven to one in the humanities and social sciences. That ratio is more than twice as lopsided as it was three decades ago, and it seems quite likely to keep increasing, because the younger faculty members are more consistently Democratic than the ones nearing retirement, said Daniel Klein, an associate professor of economics at Santa Clara University and a co-author of the study.

In a separate study of voter registration records, Professor Klein found a nine-to-one ratio of Democrats to Republicans on the faculties of Berkeley and Stanford. That study, which included professors from the hard sciences, engineering and professional schools as well as the humanities and social sciences, also found the ratio especially lopsided among the younger professors of assistant or associate rank: 183 Democrats versus 6 Republicans…

No surprises there.

(Thanks to Instapundit for the tip about Dabashi, and to Marginal Revolution for the pointer to the Times story.)

Restore Free Speech

The L.A. Times reports:

Stung by a radio campaign to oust veteran Rep. David Dreier, the National Republican Congressional Committee has filed a federal elections complaint. It contends that an ongoing campaign by a pair of radio talk-show hosts represents an illegal contribution to Dreier’s opponent.

That’s the Incumbent Protection Act — also known as the Bipartisan Campaign Reform Act (BCRA) — in action.

The Illogic of Helmet Laws

Liberals love laws that require bicyclists and motorcyclists to wear safety helmets. The usual reasons:

1. Taxpayers defray the cost of emergency services that go to the scene of accidents.

2. The failure to use helmets results in higher health-care costs and, thus, higher health-insurance premiums.

Proposition number 1 isn’t universally true. But even if it were, so what? Accidents aren’t caused by the use or non-use of helmets. Almost any accident involving a bicyclist or motorcyclist will require emergency services, whether or not the rider incurs a head injury.

Proposition number 2 overlooks the fact that non-helmeted riders are less likely to require prolonged, expensive care — because they’re likely to die more quickly than helmeted riders.

That brings us to the real proposition — number 3: Bicyclists and motorcyclists should wear helmets for their own good. The insistence on helmet laws is simply another liberal pretext for telling others how to lead their lives.

Here’s a deal for helmet-loving liberals. If you’re a bicyclist (likely) or motorcyclist (unlikely), you can wear a helmet if you want to. In return, non-liberal bicyclists and motorcyclists will agree that you don’t have to sport an American flag on your helmet.

In the "So What?" Department

UPDATED

Eschaton is atwitter (scandalized? horrified?) at the possibility that the NRA is funding Stolen Honor, the anti-Kerry film about to be aired by Sinclair Broadcasting. I guess that makes Stolen Honor especially unworthy of consideration. Anything associated with the NRA must, by definition, be EVIL!!!

To top it off, Sinclair Broadcasting is exercising its First Amendment right in airing Stolen Honor, and the chairman of the FCC has said that the FCC won’t intervene to stifle Sinclair.

Frustrating days for the left.

UPDATE

Sinclair has backed down, in the face of legal and political pressure. Another example of legislation by litigation. It stinks.

But remember this, lefties, what goes around comes around.

I Know What Some of You Are Thinking…

…about this story:

Court: Terror Fears Can’t Curb ‘Liberty’

Sat Oct 16, 7:06 PM ET

By C.G. WALLACE, Associated Press Writer

ATLANTA – Fear of a terrorist attack is not sufficient reason for authorities to search people at a protest, a federal appeals court has ruled, saying Sept. 11 “cannot be the day liberty perished.”

A three-judge panel of the 11th U.S. Circuit Court of Appeals (news – web sites) ruled unanimously Friday that protesters may not be required to pass through metal detectors when they gather next month for a rally against a U.S. training academy for Latin American soldiers.

Authorities began using the metal detectors at the annual School of the Americas protest after the 2001 terrorist attacks, but the court found that practice to be unconstitutional….

But it’s not nice to say it in a blog. Curb your enthusiasm.

Due Process of Law

Jeff Jarvis asks “Would you go to jail for your weblog?” It’s a long post about the case of Judith Miller of The New York Times, who’s been jailed for contempt in her refusal to name sources in the Valerie Plame case. Jarvis wants to make Miller’s plight into a First Amendment case. It’s not that at all, as I said in my comment to Jarvis’s post:

There’s no freedom of speech or freedom of the press issue here. What’s at stake is due process of law, and that’s what Miller and her ilk are trying to subvert.

Someone — presumably a government official — may have committed a crime. The press has no right to thwart the investigation of a crime.

Arrgh, I Hate Being Right All the Time

Just a month ago I posted this:

Time to Regulate the Blogosphere?

That thought must have crossed the minds of some highly placed Democrat sympathizers in the “mainstream” media when the blogosphere started shredding the threadbare remnants of Dan Rather’s reputation for honest reporting. But the blogosphere is protected by the First Amendment, isn’t it?

There’s stark evidence that the blogosphere can be regulated, if the feds want to do it. Look at the airwaves, which the feds seized long ago, and which the feds censor by intimidation. Look at the ever-tightening federal control of political speech, which has brought us to McCain-Feingold. It’s all in the name of protecting us, of course….

Well, today Vodkapundit points to this AP story at myway:

FEC May Regulate Web Political Activity

Oct 13, 7:55 AM (ET)

By SHARON THEIMER

WASHINGTON (AP) – With political fund raising, campaign advertising and organizing taking place in full swing over the Internet, it may just be a matter of time before the Federal Election Commission joins the action. Well, that time may be now.

A recent federal court ruling says the FEC must extend some of the nation’s new campaign finance and spending limits to political activity on the Internet.

Long reluctant to step into online political activity, the agency is considering whether to appeal.

But vice chairwoman Ellen Weintraub said the Internet may prove to be an unavoidable area for the six-member commission, regardless of what happens with the ruling.

“I don’t think anybody here wants to impede the free flow of information over the Internet,” Weintraub said. “The question then is, where do you draw the line?”…

Hey, Ms. Weintraub, you’ll have to pry my blog out of my cold, dead hands.

Favorite Posts: Academic Freedom and Freedom of Speech

No One Should Be above the Law — Not Even a Reporter

This will invoke a lot of whining about “freedom of the press” and “chilling effects,” but “due process of law” won’t get a mention:

Judge Holds Reporter in Contempt in Leak Probe

WASHINGTON (Reuters) – A federal judge held a New York Times reporter in contempt on Thursday for refusing to testify in the investigation of whether the Bush administration illegally leaked a covert CIA officer’s name to the media….

The emphasis is mine, all mine.