Category: Liberty – Libertarianism – Rights

More about Democracy and Liberty

Fritz Machlup wrote this summary of a 1961 article (in German) by Friedrich Hayek:

[Hayek] asks why it is that personal liberty is in continual jeopardy and why the trend is toward its being increasingly restricted. The cause of liberty, he finds, rests on our awareness that our knowledge is inevitably limited. The purpose of liberty is to afford us an opportunity to obtain something unforeseeable; since it cannot be known what individuals will make of their freedom, it is all the more important to grant freedom to everybody….Liberty can endure only if it is defended not just when it is recognized to be useful in particular instances but rather continuously as a fundamental principle which may not be breached for the sake of any definite advantages obtainable at the cost of its suspension….It is not easy to convince the masses that they should sacrifice foreseeable benefits for unforeseeable ones. [From “Hayek’s Contribution to Economics,” in Essays on Hayek (1976), p. 41.]

That goes a long way toward explaining why unchecked democracy has become the enemy of liberty.

The Case Against Campus Speech Codes

The per curiam opinion of the U.S. Supreme Court in Brandenburg v. Ohio (1969):

The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for “advocat[ing] . . . the duty, necessity, or propriety [445] of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and for voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism. Ohio Rev.Code Ann. § 2923.13. He was fined $1,000 and sentenced to one to 10 years’ imprisonment. The appellant challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal sua sponte “for the reason that no substantial constitutional question exists herein.” It did not file an opinion or explain its conclusions. Appeal was taken to this Court, and we noted probable jurisdiction. 393 U.S. 94 (196). We reverse.

The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan “rally” to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network.

The prosecution’s case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. The State also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films.

One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present [446] other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews. [note 1] Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech, in full, was as follows:

This is an organizers’ meeting. We have had quite a few members here today which are–we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio, Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.

We are marching on Congress July the Fourth, four hundred thousand strong. From there, we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you. [447]

The second film showed six hooded figures one of whom, later identified as the appellant, repeated a speech very similar to that recorded on the first film. The reference to the possibility of “revengeance” was omitted, and one sentence was added: “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.” Though some of the figures in the films carried weapons, the speaker did not.

The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. E. Dowell, A History of Criminal Syndicalism Legislation in the United States 21 (1939). In 1927, this Court sustained the constitutionality of California’s Criminal Syndicalism Act, Cal.Penal Code §§ 11400-11402, the text of which is quite similar to that of the laws of Ohio. Whitney v. California, 274 U.S. 357 (1927). The Court upheld the statute on the ground that, without more, “advocating” violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas, 274 U.S. 380 (1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U.S. 494, at 507 (1951). These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. [note 2] As we [448] said in Noto v. United States, 367 U.S. 290, 297-298 (1961), “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.” See also Herndon v. Lowry, 301 U.S. 242, 259-261 (1937); Bond v. Floyd, 385 U.S. 116, 134 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v. United States, 354 U.S. 298 (1957); De Jonge v. Oregon, 299 U.S. 353 (1937); Stromberg v. California, 283 U.S. 359 (1931). See also United States v. Robel, 389 U.S. 258 (1967); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Elfbrandt v. Russell, 384 U.S. 11 (1966); Aptheker v. Secretary of State, 378 U.S. 500 (1964); Baggett v. Bullitt, 377 U.S. 360 (1964).

Measured by this test, Ohio’s Criminal Syndicalism Act cannot be sustained. The Act punishes persons who “advocate or teach the duty, necessity, or propriety” of violence “as a means of accomplishing industrial or political reform”; or who publish or circulate or display any book or paper containing such advocacy; or who “justify” the commission of violent acts “with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism”; or who “voluntarily assemble” with a group formed “to teach or advocate the doctrines of criminal syndicalism.” Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime [449] in terms of mere advocacy not distinguished from incitement to imminent lawless action. [note 3]

Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. [note 4] Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.

Reversed.

With that precedent in mind, I have to ask why it is permissible for a publicly funded university to have a speech code of any kind.

Favorite Posts: Academic Freedom and Freedom of Speech

Absolutism

The preservation of life and liberty necessarily requires a willingness to compromise on what — in the comfortable world of abstraction — seem to be inviolable principles. For example:

  • The First Amendment doesn’t grant anyone the right to go on the air to compromise a military operation by American forces.
  • An armed person or group of persons demonstrably bent on committing mayhem must be disarmed before the mayhem occurs, the Second Amendment notwithstanding.
  • Regardless of the Fourth, Fifth, and Sixth Amendments, a person who is caught in the act of transmitting a command to a terrorist cell should be deprived immediately of all the rights normally accorded a criminal suspect and questioned by the most effective means, for as long as it takes.

There can be no absolute liberties where life is at stake. Without life liberty is meaningless.

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.
__________
* I make an exception for overtly traitorous speech, which I come to in a future post about legal absolutism.

Our Lives, Our Fortunes, and Our Sacred Honor

…certain unalienable Rights, that among these are Life(when it isn’t inconvenient to others), Liberty (in name only) and the pursuit of Happiness(through a maze of taxes, laws, and regulations).

The Social Welfare Function

Arnold Kling asks:

Does the usefulness of the concept of a social welfare function stand or fall on its mathematical properties?

And I answer:

The concept of a “social welfare function” (with or without mathematical properties) is meaningless. You can write equations until kingdom come, but no equation you write can make commensurate the happiness or unhappiness of individuals.

Consider the case in which a nation (call it US) is formed in order to defend its citizens from outside attack by an enemy nation (call it AQ). (That’s the main reason the United States was formed, strange as it may now seem.) Assuming that the citizens of US are unanimous in their opposition to AQ, and unanimous in their support of measures taken to deter AQ, each of them will be happier if their unified support actually deters an attack by AQ. But AQ will be unhappy (or less happy) because it can’t attack US with impunity. The happiness of US (even if it could be expressed mathematically), isn’t offset by the unhappiness of AQ (even if it could be expressed mathematically). In fact, US’s happiness is increased by AQ’s unhappiness, even though neither can be quantified.

Suppose, however, that a faction of US citizens (call it LW) is unhappy because of certain actions being taken to prevent an attack by AQ. The actions that make LW unhappy don’t make me unhappy. In fact, they add to my happiness because I despise LW; anything that makes LW unhappy makes me happier. Thus, I’ll continue to be happy, despite LW’s unhappiness, unless and until (a) LW’s unhappiness leads to a political decision to stop defending US against AQ or (b) AQ attacks US successfully.

I could go on, but I think you get the idea. My happiness (or unhappiness) is mine, and yours is yours. The best we can say is that voluntary exchange in free markets, protected by strict enforcement of laws against force and fraud, would make almost everyone happier — and wealthier. So much wealthier that there’d be plenty of money with which to buy off the free-loaders. But that’s another story.

(See also this post.)

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.

Practical Libertarianism for Americans

I am posting this very long essay in parts (listed below). This is a work in progress. I welcome constructive criticisms and suggestions. Please send an e-mail to: libertycorner-at-sbcglobal-dot-net .

I. Introduction (excerpt here, full post here)

II. Terminology (excerpt here, full post here)

Addendum to Part II: Notes on the state of liberty in American law (excerpt here, full post here)

III. The origin and essence of rights (excerpt here, full post here and here)

IV. Liberty and its prerequisites (excerpt here, full post here)

Addendum to Part IV: More Hayek

V. The economic consequences of liberty (excerpt here, full post here)

VI. The road not taken in American law

VII. Regaining the road

VIII. Specific policy prescriptions

IX. Summary and conclusion

Practical Libertarianism for Americans: Part V

V. THE ECONOMIC CONSEQUENCES OF LIBERTY

This is an excerpt of Part V of a nine-part work in progress. I welcome constructive criticisms and suggestions. Please send an e-mail to: libertycorner-at-sbcglobal-dot-net .

Absent the welfare-regulatory state, most of the poor would be rich, by today’s standards. And those who remain relatively poor or otherwise incapable of meeting their own needs — because of age, infirmity, and so on — would reap voluntary charity from their affluent compatriots….

[A]t the onset of the Great Depression — Americans and American politicians lost their bearings and joined Germany, Italy, and Russia on the road to serfdom. Most Americans still believe that government intervention brought us out of the Depression. That bit of shopworn conventional wisdom has been debunked thoroughly by Jim Powell, in FDR’s Folly: How Roosevelt and His New Deal Prolonged the Great Depression, and Murray N. Rothbard, in America’s Great Depression. The bottom line of FDR’s Folly is stark:

The Great Depression was a government failure, brought on principally by Federal Reserve policies that abruptly cut the money supply; unit banking laws that made thousands of banks more vulnerable to failure; Hoover’s tariff’s, which throttled trade; Hoover’s taxes, which took unprecedented amounts of money out of people’s pockets at the worst possible time; and Hoover’s other policies, which made it more difficult for the economy to recover. High unemployment lasted as long as it did because of all the New Deal policies that took more money out of people’s pockets, disrupted the money supply, restricted production, harassed employers, destroyed jobs, discouraged investment, and subverted economic liberty needed for sustained business recovery [p. 167].

All we got out of the New Deal was an addiction to government intervention, as people were taught to fear the free market and to believe, perversely, that government intervention led to economic salvation. The inculcation of those attitudes set the stage for the vast regulatory-welfare state that has arisen in the United States since World War II….

You know the rest of the story: Spend, tax, redistribute, regulate, elect, spend, tax, redistribute, regulate, elect, ad infinitum. We became locked into the welfare state in the 1970s…, and the regulatory burden on Americans is huge and growing. The payoff:

  • Real GDP (in year 2000 dollars) was about $10.7 trillion in 2004.
  • If government had grown no more meddlesome after 1906, real GDP might have been $18.7 trillion (see first chart above).
  • That is, real GDP per American would have been about $63,000 (in year 2000 dollars) instead of $36,000.
  • That’s a deadweight loss to the average American of more than 40 percent of the income he or she might have enjoyed, absent the regulatory-welfare state.
  • That loss is in addition to the 40-50 percent of current output which government drains from the productive sectors of the economy.

And that is the price of…ceding liberty piecemeal in the mistaken belief that helping this interest group or imposing that regulation will do little harm to the general welfare, and might even increase it….

The next several years will see a showdown between the forces of darkness and the forces of progress in America. The forces of darkness — having already greatly diminished the general welfare in the name of improving it — will seek to tighten the shackles of the regulatory-welfare state in the name of environmentalism. The forces of progress will seek to tame the regulatory-welfare state — if not repeal it. But they will be labeled evil, greedy, know-nothings for trying to protect us generally from the predations of the welfare-regulatory state and particularly from the ravages of environmental hysteria. As Ludwig von Mises put it:

[I]f a revolution in public opinion could once more give capitalism free rein, the world will be able gradually to raise itself from the condition into which the policies of the combined anticapitalist factions have plunged it.14 [Quoted by Bryan Caplan.]

I am doubtful of a revolution in public opinion, especially because it would require a revolution in elite opinion and in the media — both of which are in thrall to the god of the regulatory-welfare state.

As I will argue in Part VI, we have come to our present 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. I’ll have more to say about that in Parts VII and VIII.

Click here for the full text of Part V.

More about the Origin of Rights

Jon Henke of Q&O writes about the origin of rights:

Dean Esmay touches on something very important—something central to the evolution of my political philosophy past rigid Libertarian doctrine…

“You only have any rights because the rest of us pretty much agree that you have them.”
…
America was founded on an idea known as “natural rights,” at least as part of our founding myth. In truth not all the Founders believed in the concept, but most went along with the general idea. This concept of “natural rights” is helpful as a frame of reference, but really, it’s nothing but an intellectual tool. It’s a good way of getting people into the spirit of protecting each others’ rights, but ultimatey it’s nothing but sentiment.
…
As a matter of faith some may cleave to the notion that their rights come “ultimately” from God or some other higher source, or perhaps from an elaborately worked out system of rationalization. But as a matter of pragmatism that is all superfluous; unless you believe that your Creator is going to take a direct hand in everyday affairs for you, you are utterly dependent upon our fellow men to protect your rights. To get your fellow men to do that, you’re going to have to get most of them to agree on what your rights are or, failing that, get them to agree that the system of government which protects those rights should be obeyed—which is six of the one and half a dozen of the other.

Go on, try to get around it. Quote the Magna Carta at me; I don’t care. Quote Ayn Rand for me; I still don’t care. Quote Karl Marx or Rousseau for me; then I definitely don’t care. Indeed, take any political philosopher who has written at length about any of these issues, and consider: it only takes enough of us who say, “that’s a crock!” to expose any such intellectual edifices as castles made of sand.

Your rights do not exist unless your fellow men agree that they exist. You and I will live with that. Regardless of how we feel about it, it is empirical reality.

“Your rights do not exist unless your fellow men agree that they exist. … it is empirical reality”. Like Dean, I still await verifiable, physical proof of the existence of “rights”. If they are natural, surely there should be evidence, no?

There is not. Rights, as Max Borders wrote, “are not some Cartesian substance that animates the body in the manner of a soul. Rights are a human construct, just like money. The more we believe in them, the better they work“. And yet, objectivists—who are generally dismissive of unsupported claims of the supernatural—are perfectly willing to buy into the idea that the human race is exempt from the “survival of the fittest” – that we are somehow bound by other laws of nature….

A political philosophy should have ideals…but it should also be grounded in reality, else it is not really philosophy at all, merely wishful thinking. There are still many valid rationales for libertarianism, though, and they provide the basis of a more fundamentally healthy political philosophy.

In an update, Henke dismisses a reader’s argument for consequentialism as a proof of “natural rights”:

[H]is evidence comes down to “an irrefutable correlation” between the recognition of rights and successful outcomes, which indicates that “liberty is in everyone’s interest”.

And, in that, I absolutely agree with him. But that doesn’t prove the natural existence of a thing called “rights”, anymore than the productive cooperation that occurs between bees proves that insects have rights.

Precisely. As I have written:

I would like to be able to say, with fundamentalist [natural rights] libertarians, that liberty is an innate human right — and the only innate right. But that would be nothing more than an assertion, however cleverly I might clothe it in the language of philosophy.

I would like to be able to say that liberty is a paramount human instinct, honed through eons of human existence and experience. But we are surrounded by too much evidence to the contrary, both in recorded and natural history. The social and intellectual evolution of humankind has led us to a mixed bag of rights, acquired politically through cooperation and conflict resolution, often predating the creation of governments and the empowerment of states. The notion that we ought to enjoy the negative right of liberty is there among our instincts, of course, but it is at war with the positive right of privilege — the notion that we are “owed something” beyond what we earn (through voluntary exchange) for the use of our land, labor, or capital. Liberty is also at war with our instincts for control, aggression, and instant gratification.

I do not mean that the social and intellectual evolution of humankind is right — merely that it is what it is. Libertarians must accept this and learn to work with the grain of humanity, rather than against it….

There can be much profit in demonstrating, logically and factually, how illiberal laws and government actions make people worse off — often the same people who are supposed to benefit from those laws — and in offering superior alternatives. In other words, consequentialist libertarianism can make real gains for liberty by appealing successfully to self-interest.

The superior consequences of liberty argue for its acceptance, not for its inevitability. If the state of liberty were inevitable simply because of its demonstrable superiority, we would never have had to fight any wars to acquire and preserve it, nor would America have traveled as far down the road to serfdom as it has in the past 70 years.

Eternal vigilance is the price of liberty.

Treasonous Blogging?

Tom W. Bell of Agoraphilia posts about and links to an article he has submitted to several law reviews. The title is of the article is “Treason, Technology, and Freedom of Expression.” Here are some excerpts of the abstract and concluding section:

The power to punish treason against the U.S. conflicts with the First Amendment freedoms of speech and of the press. Far from a question of mere theory, that conflict threatens to chill public dissent to the War on Terrorism….After World War II, the United States won several prosecutions against citizens who had engaged in propaganda on behalf of the Axis powers. Today, critics of the War on Terrorism likewise face accusations of treason. Under the law of treasonous expression developed following World War II, those accusations could credibly support prosecutions. Any such prosecutions could win convictions, moreover, unless courts narrow the law of treasonous expression to satisfy the First Amendment….

In terms of abstract doctrine, the law of treason condemns anyone who owes allegiance to the U.S., who adheres to U.S. enemies, and who gives them aid and comfort by an overt act to which two witnesses testify. As courts have applied that doctrine, however, it threatens any citizen or resident of the U.S. who publicly expresses disloyal sentiments. The Internet has made it cheap, easy, and dangerous to publish such sentiments….Even if no prosecutions for treason arise, the alarmingly broad yet ill-defined reach of the law of treason threatens to unconstitutionally chill innocent dissent….

As courts have interpreted it, the law of treason allows for the punishment of an indeterminate but wide range of disloyal public expressions that help enemies of the U.S. That interpretation both subverts the original meaning of the constitution’s treason clause and violates the strict scrutiny test applied to content-based restrictions on expression. To save the law from unconstitutionality, courts should in cases of treasonous expression interpret the “adhering to [U.S.] enemies” element of treason as nothing broader than “being employed by enemies of the U.S.” Perhaps courts should demand a still less restrictive variation on the law of treason. Perhaps they should do away with the law of treasonous expression altogether. At the least, though, they should limit liability for treasonous expression to defendants employed by enemies of the U.S. Anything broader than that would, by wounding our First Amendment rights, do far more to harm the U.S. than disloyal expressions would.

I disagree with the compromise position Bell offers in the final sentence. If it’s treason, it’s treason. An unpaid traitor can do just as much harm to the nation as can a paid traitor.

It would be better to do away with the law of treasonous expression altogether than to draw an arbitrary line between paid and unpaid traitors. If a person’s treachery goes no further than expressions of hatred for America or sympathy with America’s enemies, let that person suffer the consequences in the forum of public opinion.

We bloggers are already facing enough trouble, given the strong possibility that our freedom of expression may be throttled by the strict application of the McCain-Feingold Act. The last thing that we (bloggers) need is an inquisition into our views about the War on Terrorism.

I do detest the extremists of the left and right who portray America as the villain of the piece. But I defend their right to do so — as long as they aren’t doing it on my dime.

Here We Go Again

Back on September 18, in “Time to Regulate the Blogosphere?,” I wrote that the thought of regulating the blogosphere

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.

I followed that with a post on October 13, in which I quoted from an AP story (link no longer works):

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?”…

LGF (via Freespace) now points to this (from CNET News.com):

The coming crackdown on blogging

March 3, 2005, 4:00 AM PT
By Declan McCullagh
Staff Writer, CNET News.com

Bradley Smith says that the freewheeling days of political blogging and online punditry are over.

In just a few months, he warns, bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign’s Web site. Even forwarding a political candidate’s press release to a mailing list, depending on the details, could be punished by fines.

Smith should know. He’s one of the six commissioners at the Federal Election Commission, which is beginning the perilous process of extending a controversial 2002 campaign finance law to the Internet.

In 2002, the FEC exempted the Internet by a 4-2 vote, but U.S. District Judge Colleen Kollar-Kotelly last fall overturned that decision. “The commission’s exclusion of Internet communications from the coordinated communications regulation severely undermines” the campaign finance law’s purposes, Kollar-Kotelly wrote.

Smith and the other two Republican commissioners wanted to appeal the Internet-related sections. But because they couldn’t get the three Democrats to go along with them, what Smith describes as a “bizarre” regulatory process now is under way.

CNET News.com spoke with Smith about the Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold law, and its forthcoming extrusion onto the Internet.

Q: What rules will apply to the Internet that did not before?
A: …Do we give bloggers the press exemption? If we don’t give bloggers the press exemption, we have the question of, do we extend this to online-only journals like CNET?

How can the government place a value on a blog that praises some politician?
…The FEC did an advisory opinion in the late 1990s (in the Leo Smith case) that I don’t think we’d hold to today, saying that if you owned a computer, you’d have to calculate what percentage of the computer cost and electricity went to political advocacy.

It seems absurd, but that’s what the commission did. And that’s the direction Judge Kollar-Kotelly would have us move in….

How about a hyperlink? Is it worth a penny, or a dollar, to a campaign?
I don’t know. But I’ll tell you this. One thing the commission has argued over, debated, wrestled with, is how to value assistance to a campaign….

Then what’s the real impact of the judge’s decision?
The judge’s decision is in no way limited to ads. She says that any coordinated activity over the Internet would need to be regulated, as a minimum….

(Editor’s note: federal law limits the press exemption to a “broadcasting station, newspaper, magazine or other periodical publication.” )

How do you see this playing out?
There’s sensitivity in the commission on this. But remember the commission’s decision to exempt the Internet only passed by a 4-2 vote.

This time, we couldn’t muster enough votes to appeal the judge’s decision. We appealed parts of her decision, but there were only three votes to appeal the Internet part (and we needed four). There seem to be at least three commissioners who like this.

Then this is a partisan issue?
Yes, it is at this time. But I always point out that partisan splits tend to reflect ideology rather than party. I don’t think the Democratic commissioners are sitting around saying that the Internet is working to the advantage of the Republicans.

One of the reasons it’s a good time to (fix this) now is you don’t know who’s benefiting. Both the Democrats and Republicans used the Internet very effectively in the last campaign.

What would you like to see happen?
I’d like someone to say that unpaid activity over the Internet is not an expenditure or contribution, or at least activity done by regular Internet journals, to cover sites like CNET, Slate and Salon. Otherwise, it’s very likely that the Internet is going to be regulated, and the FEC and Congress will be inundated with e-mails saying, “How dare you do this!”

What happens next?
It’s going to be a battle, and if nobody in Congress is willing to stand up and say, “Keep your hands off of this, and we’ll change the statute to make it clear,” then I think grassroots Internet activity is in danger….

Senators McCain and Feingold have argued that we have to regulate the Internet, that we have to regulate e-mail. They sued us in court over this and they won.

If Congress doesn’t change the law, what kind of activities will the FEC have to target?
We’re talking about any decision by an individual to put a link (to a political candidate) on their home page, set up a blog, send out mass e-mails, any kind of activity that can be done on the Internet….

Why wouldn’t the news exemption cover bloggers and online media?
Because the statute refers to periodicals or broadcast, and it’s not clear the Internet is either of those. Second, because there’s no standard for being a blogger, anyone can claim to be one, and we’re back to the deregulated Internet that the judge objected to. Also I think some of my colleagues on the commission would be uncomfortable with that kind of blanket exemption….

Imagine that: unregulated political speech. What a concept. Perhaps we need a constitutional amendment to protect it. We could even call it the First Amendment, because of its importance.

God damn McCain, Feingold, Congress, the President, and the U.S. Supreme Court! (Oops, am I allowed to say that?)

Favorite Posts: Academic Freedom and Freedom of Speech

Taking Exception

Aaron Margolis, a co-blogger at the late, unlamented Blogger News Network, once wrote:

The operative question in this case: should Michael Schiavo’s rights as a husband be reduced or eliminated because his wife’s parents do not agree with his legal right to make medical decisions on her behalf? The point of view of some conservatives on this issue is, I believe, incorrectly predicated. While we may argue Terri Schiavo’s right to live or die ad infinitum, the broader issue is being ignored; it is not our choice….

This is not a pro-life related issue; Terri Schiavo is not an unborn child. Therefore, this aspect should not be brought into the picture. The fundamental issue should be about who has the ultimate right to make a decision, medical or otherwise, of this nature….

Conservatives fight hard to preserve not only the sanctity of marriage, but the idea of individual responsibility and independence of action. However, it would appear that as concerns this matter, some of our number have forgotten these basic tenets. Where may this lead us, and what should conservatives being saying or doing, ultimately? As with our defense of the sacrosanct right of free speech, while we may not agree with Michael Schiavo, we should be willing to support his right to act in accordance with his rights and obligations.

But the Schiavo case is about life, not about marriage. As I have written, “think about the ‘progressive’ impulses that underlie abortion (especially selective abortion), involuntary euthanasia, and forced mental screening — all of them steps down a slippery slope toward state control of human destiny.” (See here, also.) If Michael Schiavo succeeds in his court-aided quest to end his wife’s life, the slope will become noticeably slicker.

I’m an ardent libertarian who’s a staunch conservative when it comes to protecting the lives of the innocent. Without life, there is no liberty, no pursuit of happiness.

Can Your Town Take Your Home?

It’s a debate about eminent domain at Legal Affairs Debate Club:

This week, the Supreme Court hears the case of Susette Kelo and her neighbors in the Fort Trumbull neighborhood of New London, Conn. [Kelo v. New London]. The city intends to evict these residents and develop their waterfront neighborhood claiming that doing so will enhance the city’s tax-base.

The Fifth Amendment describes the power of eminent domain as a taking for public use with fair compensation. Kelo and her neighbors argue that expropriation of their property for a redevelopment project cannot be a “public use” if private developers eventually will possess the land.

Is New London taking the principle of eminent domain too far?

The debaters are Richard A. Epstein, James Parker Hall Distinguished Service Professor of Law at the University of Chicago, and J. Peter Byrne, Professor of Law at Georgetown University. Round 1 is over and it’s already a TKO, in favor of Epstein. But Byrne is so groggy that he doesn’t know that the fight is over.

Talk about being mentally flabby, here’s Byrne’s final punch of round 1:

Judgments about the wisdom of the project should be left to the people of Connecticut and New London, where the constitution places it.

The Constitution, quite obviously, places the judgment in the hands of the U.S. Supreme Court. Whether the Court will do the right thing and find for Kelo is another matter. If Byrne is to be believed (a dubious proposition), U.S. Supreme Court precedent is on the side of New London. Fortunately, perhaps, there’s more recent and directly applicable precedent in the reversal of Poletown.

Judeo-Christian Values and Liberty

Dennis Prager’s first column of 2005 inaugurates “a periodic series of columns devoted to explaining and making the case for what are called Judeo-Christian values.” Prager contends that

The collapse of Christianity in Europe led to the horrors of Nazism and Communism. And to the moral confusions of the present — such as the moral equation of the free United States with the totalitarian Soviet Union, or of life-loving Israel with its death-loving enemies.

In fact, it was a secular Jew, the great German Jewish poet Heinrich Heine, who understood that despite its anti-Semitism and other moral failings, Christianity in Europe prevented the wholesale slaughter of human beings that became routine with Christianity’s demise. In 1834, 99 years before Hitler and the Nazis rose to power, Heine warned:

A drama will be enacted in Germany compared to which the French Revolution will seem harmless and carefree. Christianity restrained the martial ardor for a time but it did not destroy it; once the restraining talisman [the cross] is shattered, savagery will rise again. . . .

What is needed today is a rationally and morally persuasive case for embracing the values that come from the Bible. This case must be more compelling than the one made for anti-biblical values that is presented throughout the Western world’s secular educational institutions and media (news media, film and television).

One need not be a believer to embrace the values espoused in the Bible, in particular, the last six of the Ten Commandments (from the Douay-Rheims Bible Online, Exodus 20, verses 13-17):

13 Thou shalt not kill. 14 Thou shalt not commit adultery. 15 Thou shalt not steal. 16 Thou shalt not bear false witness against thy neighbour. 17 Thou shalt not covet thy neighbour’s house: neither shalt thou desire his wife, nor his servant, nor his handmaid, nor his ox, nor his ass, nor any thing that is his.

As the Catholic Encyclopedia puts it:

The precepts [of the last six of the Commandments] are meant to protect man in his natural rights against the injustice of his fellows.

  • His life is the object of the Fifth;
  • the honour of his body as well as the source of life, of the Sixth;
  • his lawful possessions, of the Seventh;
  • his good name, of the Eighth;
  • And in order to make him still more secure in the enjoyment of his rights, it is declared an offense against God to desire to wrong him, in his family rights by the Ninth;
  • and in his property rights by the Tenth.

That’s a good summary of the precepts of libertarianism.

Related posts:
Atheism, Religion, and Science
The Limits of Science
Three Perspectives on Life: A Parable
Beware of Irrational Atheism

(Thanks to Mike Rappaport at The Right Coast for the pointer to Prager’s column.)

As I Was Saying…

…here, apropos Paul H. Rubin’s Darwinian Politics: The Evolutionary Origin of Freedom:

I would like to be able to say that liberty is a paramount human instinct, honed through eons of human existence and experience. But we are surrounded by too much evidence to the contrary, both in recorded and natural history. The social and intellectual evolution of humankind has led us to a mixed bag of rights, acquired politically through cooperation and conflict resolution, often predating the creation of governments and the empowerment of states. The notion that we ought to enjoy the negative right of liberty is there among our instincts, of course, but it is at war with the positive right of privilege — the notion that we are “owed something” beyond what we earn (through voluntary exchange) for the use of our land, labor, or capital. Liberty is also at war with our instincts for control, aggression, and instant gratification.

I do not mean that the social and intellectual evolution of humankind is right — merely that it is what it is. Libertarians must accept this and learn to work with the grain of humanity, rather than against it. There is no profit in simply asserting the inherent wrongness of laws and government actions that undermine liberty. Nor is there much profit in arguing the unconstitutionality of illiberal laws and government actions; it is obvious that appeals to the Constitution will be of little avail unless and until we have a Supreme Court that abides wholeheartedly by the Constitution.

Will Wilkinson comes at it this way:

The key political lesson of evolutionary psychology is simply that there is a universal human nature. The human mind comprises many distinct, specialized functions, and is not an all-purpose learning machine that can be reformatted at will to realize political dreams. The shape of society is constrained by our evolved nature. Remaking humanity through politics is a biological impossibility on the order of curing cancer with pine needle tea. We can, however, work with human nature—and we have. We have, through culture, enhanced those traits that facilitate trust and cooperation, channeled our coalitional and status-seeking instincts toward productive uses, and built upon our natural suspicion of power to preserve our freedom. We can, of course, do better.

As Immanuel Kant famously remarked, “from the crooked timber of humanity no truly straight thing can be made.” But, in the words of philosopher, Denis Dutton,

It is not . . . that no beautiful carving or piece of furniture can be produced from twisted wood; it is rather that whatever is finally created will only endure if it takes into account the grain, texture, natural joints, knotholes, strengths and weaknesses of the original material.

Evolutionary psychology, by helping us better understand human nature, can aid us in cultivating social orders that do not foolishly attempt to cut against the grain of human nature. We can learn how best to work with the material of humanity to encourage and preserve societies, like own, that are not only beautiful, but will endure.

Practical Libertarianism for Americans: Part IV

IV. LIBERTY AND ITS PREREQUISITES

This is an excerpt of Part IV of a nine-part work in progress. I welcome constructive criticisms and suggestions. Please send an e-mail to: libertycorner-at-sbcglobal-dot-net .

[A] people who band together in liberty — and who successfully defend their liberty against encroachments from within and without — not only will be able to pursue happiness, but also will reap greater happiness (call it personal satisfaction or well-being, if you will). For, the pursuit of happiness isn’t a zero-sum game; you can advance your happiness by helping me advance mine, and vice versa. But we can do so only if we are at liberty to do so — untrammeled by predators, parasites, and constraints — other than those constraints of law and custom that help to secure our liberty. A firm, communal commitment to liberty is therefore a matter of self-interest to all but predators and parasites….

Libertarianism, like physics, has evolved from rudimentary beginnings. Physics has evolved because physicists have expanded their store of facts about the physical world and found truer ways of describing the forces that make the universe what it is — in the large and in the small. Libertarianism has evolved beyond the assertion that humans have “certain unalienable rights” because such thinkers as Adam Smith (1723-90), John Stuart Mill (1806-73), and Friedrich A. Hayek (1899-1992) observed the workings of society — in all of its aspects — and told us how liberty serves self-interest….

mith observed that when we are at liberty to advance our own economic interests we must necessarily advance the economic interests of others.

Mill instructed us that personal freedoms should be preserved because through them we become more knowledgeable and more capable. Therefore, the state should intervene in our lives only to protect us from actual harm, as opposed to mere offense.

Hayek made the case that economic and personal liberty are inseparable: We engage in economic activity to serve our personal values, and our personal values are reflected in our economic activity. When the state restricts economic liberty, it necessarily restricts personal liberty, and vice versa. The state, simply cannot make personal and economic decisions more effectively than individuals operating freely within an ever-evolving socio-economic network….

Not only are economic and social liberty indivisible, but also is liberty itself indivisible. To reap the full benefit of liberty we must be willing to accept “bad” outcomes as well as “good” ones. That is, we must adhere to the principle of liberty and ignore the occasionally unhappy outcome that flows from it. For, as I will discuss further in Parts V and VI, liberty can improve the lot of all but predators and parasites.

By what criteria, then, should we decide where to draw the line between governmental action and private action? I propose these principles:

1. Government may not act or condone action (e.g., civil litigation) except when it seeks to deter, prevent, or remedy an actionable harm to liberty.

2. An actionable harm to liberty is one that arises or would arise directly from the commission of a specific act or acts by any person or entity, domestic or foreign. An expression of thought is not an act, for this purpose.

3. An expression of thought cannot be an actionable harm unless it

a. intentionally obstructs or would obstruct governmental efforts to deter, prevent, or remedy an actionable harm (e.g., divulging classified defense information, committing perjury),

b. intentionally causes or would cause an actionable harm (e.g., plotting to commit an act of terrorism, forming a lynch mob), or

c. purposely — through a lie or the withholding of pertinent facts — causes a person to act against self-interest in an economic transaction (e.g., misrepresenting a product, inflating a corporation’s statement of earnings).

4. An expression of thought cannot be an actionable harm until it has led or will lead directly to the commission of an act. A mere statement of fact, belief, opinion, or attitude cannot be an actionable harm, regardless of the subject of the statement, unless it amounts to slander or libel (both of which are offenses against liberty). Othewise, those persons who do not care for the facts, beliefs, opinions, or attitudes expressed by other persons would be able to stifle speech they find offensive merely by claiming to be harmed by it.

5. An act of omission (e.g., the refusal of social or economic relations because of some form of bias), other than a breach of contract or duty, cannot be an actionable harm. It is incompatible with liberty for government to judge voluntary actions that are not otherwise actionable harms.

In other words, to enjoy the benefits of liberty we must enjoy broad latitude of action (or inaction), speech, and thought….

Click here for the full text of Part IV.

Practical Libertarianism for Americans: Part III

III. THE ORIGIN AND ESSENCE OF RIGHTS

This is a brief excerpt of Part III of a nine-part work in progress. I welcome constructive criticisms and suggestions. Please send an e-mail to: libertycorner-at-sbcglobal-dot-net .

This is where I where I enter a debate that splits libertarianism into two camps: fundamentalists and consequentialists. Fundamentalists (or “natural right”) libertarians say that humans inherently possess the right of liberty. Consequentialists say that humans ought to enjoy liberty because, through liberty, humans are happier and more prosperous than they would be in its absence. In spite of this rather fundamental split, all libertarians agree that it is better to live in liberty than not….

I would like to be able to say, with fundamentalist libertarians, that liberty is an innate human right — and the only innate right. But that would be nothing more than an assertion, however cleverly I might clothe it in the language of philosophy.

I would like to be able to say that liberty is a paramount human instinct, honed through eons of human existence and experience. But we are surrounded by too much evidence to the contrary, both in recorded and natural history. The social and intellectual evolution of humankind has led us to a mixed bag of rights, acquired politically through cooperation and conflict resolution, often predating the creation of governments and the empowerment of states. The notion that we ought to enjoy the negative right of liberty is there among our instincts, of course, but it is at war with the positive right of privilege — the notion that we are “owed something” beyond what we earn (through voluntary exchange) for the use of our land, labor, or capital. Liberty is also at war with our instincts for control, aggression, and instant gratification.

I do not mean that the social and intellectual evolution of humankind is right — merely that it is what it is. Libertarians must accept this and learn to work with the grain of humanity, rather than against it. There is no profit in simply asserting the inherent wrongness of laws and government actions that undermine liberty. Nor is there much profit in arguing the unconstitutionality of illiberal laws and government actions; it is obvious that appeals to the Constitution will be of little avail unless and until we have a Supreme Court that abides wholeheartedly by the Constitution.

There can be much profit in demonstrating, logically and factually, how illiberal laws and government actions make people worse off — often the same people who are supposed to benefit from those laws — and in offering superior alternatives. In other words, consequentialist libertarianism can make real gains for liberty by appealing successfully to self-interest. But self-interest must be seduced by reason (Part IV) and bribed by the promise of greater rewards (Part V).

Click here for the full text of Part III.

Practical Libertarianism for Americans: Addendum to Part II

This is a brief excerpt of the addendum to Part II of a nine-part work in progress. I welcome constructive criticisms and suggestions. Please send an e-mail to: libertycorner-at-sbcglobal-dot-net .



NOTES ON THE STATE OF LIBERTY IN AMERICAN LAW

As noted in Part II, I am using “liberty” to encompass the full spectrum of liberty rights, which the Founders captured in the phrase “life, liberty, and the pursuit of happiness.” This fragmentary addendum is a provocative gloss on that evocative phrase….

The great forest of American law — which imperfectly sheltered life, liberty, and the pursuit of happiness until the 1930s — has since been laid waste in the pursuit of various Devils, among them: self-defense (at home and abroad), personal responsibility (the main antidote of poverty, illiteracy, and crime), lower-class vices (smoking), (white) racism, (male) sexism, “offensive” (non-leftish) speech, “excessive” political spending and speech (especially by non-incumbents), all forms of pollution (except those necessary to finance a yuppie’s lifestyle and to propel his SUV), and life’s uncertainties in general. Now we are in the open, practically defenseless against the biggest Devil of all — the state — which dictates how much of life, liberty, and happiness we may enjoy….

Click here for the full text of the addendum to Part II.