Thursday, January 01, 2004

Ending the Year on a Political Low Note

Tibor R. Machan

On December 30, 2003, as if to remind us all of who is becoming more and
more in charge of our lives, agents of our Federal Government decided to
ban the over-the-counter dietary supplement ephedra – also known as ma
huang – and basically put a sizable portion of an industry out of
business. Sure, ephedra has had some bad side effects and is said to have
contributed to the death of Baltimore Orioles pitcher Steve Bechler after
he consumed an ephedra-containing product. Reportedly some others, too,
have had various bad experiences with the product.

Given, then, that ephedra isn’t vital at least for most people’s daily
lives and that these days risk-aversion has become a near epidemic in our
society, perhaps we should not be terribly surprised that the Feds – in
particular Secretary of Health and Human Services Tommy G. Thompson –
flexed their muscles so readily here. Then, also, given how eager so many
Americans have been to support George W. Bush and his Attorney General
John Ashcroft in the matter of curtailing our liberties in the pursuit of
perfect security vis-à-vis terrorists, it shouldn’t be expected that this
ban will be resisted by many citizens who aren’t themselves seeking use of
the product or members of the industry earning a living from providing it
for them in the market place. The only others who will raise a protesting
voice will be, like me, those who consider these kinds of bans seriously
flawed public policy.

Why protest the ban, you might wonder? The main reason is that in a free
society defective products must be dealt with via tort – and, on rare
occasions, the criminal – law. Shutting down an entire business community
on the grounds that some people have been harmed by its products is
plainly unjust. Only when a significant statistical – signaling a causal
– link is established between the product and serious harmful results can
it suffice as ground for punishing the manufacturer and seller of it.
Even in such cases if the product’s risk is spelled out as it is being
marketed, a ban isn’t warranted.

Just consider that driving cars is evidently not risk free; yet cars are
sold to millions of people every year. Nor are cars always used for vital
purposes – we take them to football games, getting our nails done and to
pick up such risky products as cigarettes and beer. Yet, cars aren’t
banned. And they should not be. Only when their normal, proper use
contributes to serious harmful consequences should the producers suffer
adverse consequences, and then only on an individual, case-by-case, basis.
That is what due process requires, not the mass banning of a risky
product, a policy that, moreover, deprives many people of what they freely

There is yet another scary dimension of this ban the government has
imposed: many legal experts and news reporters have yielded to the
temptation to become propagandists for the ban. On several TV news
programs the reporters and the experts they have invited to comment have
openly declared any and all opposition to the government’s ban a function
of pure economic interest, voiced only by lobbyists. This is akin to when
Attorney General John Ashcroft declared that criticism of his
anti-terrorist measures amounted to aiding and abetting terrorism.
The plain fact is that there are serious disinterested dissenters to the
government’s ban. Just as the protest against banning flag burning need
not come only from those who are bent on burning flags but may come from
principled opponents of such bans, the same holds for the new ban. It is
wrong to do this for a government of a free society and however used the
American public has become to various bans, it is worth calling to mind
that such policies fly in the face of the principles of a free society.
In this instance, of course, there is a new wrinkle to the government’s
petty tyranny. The Food and Drug Administration arguably lacks the
authority to regulate, let alone ban, over-the-counter products such as
headache remedies, dietary supplements, vitamins, and so forth. Not that
it ought to have any authority to regulate and ban prescription drugs.
But this most recent FDA action is clearly an expansion of the
government’s already unjustifiable powers.

This should alert even the most complacent of our citizens to the trend.
It usually begins with responses to panic, when people are not paying much
attention to the loss of liberty, but gradually moves toward taking over a
portion of our lives that we have every right to govern ourselves (with
only the aid of tort or criminal law).

The basic idea is that only after it is proven that some kind of conduct
is in violation of our rights, may the government move against those who
engage in it. This principle is now in near tatters.

Rights and the US Constitution

Tibor R. Machan

It is a well known refrain of some conservative legal scholars – the most famous of them being Robert Bork – that there is no constitutional right to privacy in our country. Thus, the Justices of the US Supreme Court who strike down various laws that violate such a right are supposedly engaged in judicial malpractice.
Maybe a bit of this is understandable, in light of the fact that these days nearly every wish of every outspoken group of citizens is advanced as a right. Health care, education, unemployment compensation, a minimum wage, equal pay for equal work, free attendance of college and other higher education institutions – you name it and someone will claim he or she has a right to it.

But these and many others are bogus rights – they are, in fact, demands for others to supply one with benefits whether they want to or not. As I like to put it, quite accurately but not in terms widely used, such “rights” place others in involuntary servitude.

The only rights that are genuine, bona fide individual human rights are those that fend off intruders – murderers, rapists, aggressors, robbers, burglars, trespassers and the like. These rights – basically to out lives, liberties, and property – do not require others to do anything but merely to abstain from intruding on us. Their protection doesn’t coerce people to do anything they don’t want to do with what is their own – their lives, their liberty, and their property.

The bottom line is that bona fide rights must be compossible, a term that means capable of mutual exercise without conflict.

Now the US Constitution takes its idea of rights from the US Declaration of Independence, which is itself grounded in the idea introduced slowly throughout Western history but developed into a full blown theory by John Locke and his followers. In the US Constitution some rights are listed – enumerated – others are not – they are left unenumerated, as the Ninth Amendment states. The right to privacy would be one of these latter kind.
Those conservative legal scholars who simply ignore or demean the Ninth Amendment have some explaining to do, since their stance not only does away with the right to privacy but with, say, the rights to laugh, to cry, to write poetry, to shine one’s shoes and, indeed, to take all the innumerable peaceful actions human beings take day in and day out, all the time, that they certain have a right to take.

Obviously the right to do these things cannot be listed individually; so, instead, very basic rights are mentioned, such as the right to think for oneself, speak out on issues, associate with others, be undisturbed in one’s own house unless one is seriously suspected of a crime, hold on to one’s wealth unless there is a genuine public need for it, and then be properly compensated if it’s taken, and so forth. Many other (derivative) rights we have – among them all those I have listed and thousands of more, including the right to privacy – are referred to generally as unenumerated, in the Ninth Amendment to the US Constitution.
We may assume that the Framers were not idiots and didn’t simply put that amendment in there out of absentmindedness. So, what then explains why these conservative – and some liberal – legal scholars get so exercised about courts invoking those unenumerated rights?
Here goes an educated guess: they’re frightened that an uncompromising respect for all the rights the Founders and Framers had in mind – and that can be inferred from them – would take the power away from governments they like to use for their own special purposes, not as governments are supposed to use it, for protecting our rights.
It’s not the first time that theorists twist the law to serve their own agendas. If we allow them to get away with it, we will eventually have none of our rights recognized.

Why All the Fuss about Modernity?

Tibor R. Machan

Among the many concerns voiced these days one stands out for me, namely,
the one about modernity. Modernity is the element of our age that
emphasizes technology, science, reason, individualism and similar features
of our culture that are often deemed to be progressive.
Certainly, since the 14th century the Western World has seen an
enormous increase in what is known about the universe. Science has
flourished, as has the resulting technology that enables us now to travel
more speedily, cure diseases more successfully, produce food in
unprecedented amounts and do much else better than we could before.
On the political front the modern age has seen a greater stress than have
others of the importance of individual human rights to freedom and to property.
Instead of governments being seen as rulers, they have slowly begun to be seen as
servants and defenders of the people. No, this hasn’t spread as widely as
have the modern age’s scientific and technological achievements. Still,
it is no longer taken for granted that some people have the innate
authority to rule others, or that members of a certain family get to own
a country and even its people (their subjects).
Yet, while these developments are undeniable, there is evidence of a
serious backlash, as well. Many yearn for the rigidities of ancient
times, when societies were comprised not of sovereign individuals but of
classes; others lament our preoccupation with improving our lives here on
earth, with our hope for more joy and pleasure in this life, instead of
preparations for the afterlife. The lament about commercialism – the
focus on using trade to allocate wealth and resources so they
can all go to those who can make the best use of it – often reaches
hysterical decimals. Environmentalist have targeted technology itself as
the devil of the modern age, given that it is used to transform the earth
so it can serve our own interests and goals more readily. And, of course,
there are those who believe outright that focusing on the mundane takes
our eyes off the spiritual, which is said to be far more noble and
elevating than anything life has to offer us.
One may assume that some of these lamentations are genuine, sincere, even
if one were to take them to be misguided. But in many cases there is a
hidden agenda afoot when such complaints come to light.
Most important to note is that all of these concerns end, once again,
in the assertion of the superior wisdom and therefore authority of those who
issue the complaints. Who, for example, is to decide how the earth is to be used?
Well, environmentalists, of course, and certainly not those who want more
and better housing developments and means of transportation.
The bottom line of the chorus of complaints about modernity seems,
in fact, to be nothing other than that individuals are more equipped now than
before to pursue their very own chosen goals. All that technology helps us to
strive for our chosen goals – we can travel better to the places where we wish to
go; we can keep alive longer and thus do more of what we want to do; we can
spread information more rapidly than ever before, so we can better
understand things. Once again, this leads to more individual control over
our own affairs.
And there are a great many who find this intolerable. Who, after all, is
that puny individual to be left to his or her own resources when it comes to
selecting various ends to pursue and to be able to pursue those ends
better and better all the time? This cannot be allowed to go on – those
puny individuals need to be guided, regimented, controlled, and regulated.
By whom, one might ask? Well, actually, by other individuals who
supposedly know what is important for the rest to do.
Sure, the lamentations about modernity are put in terms of the interest
or good of the community or the public or the nation or humanity, as opposed to
the selfish pursuits of individuals. But don’t be fooled. In most cases
the conflict isn’t between the public and the private interest but between
some private interest and some other private interest.
Environmentalists, for example, have no special understanding of
what we all should care about – they simply hope to bamboozle us all into
thinking that their priorities ought to be everyone’s priorities. And so
it is with others, who try to elevate their own special agenda to become
everyone else’s, usually not by argument but by law and public policy.
What modernity has done isn’t so much to guarantee a morally better life
for us all but to place the responsibility for seeking such a life at the
feet of the individual and remove it from the hands of a bunch of
self-appointed rulers. We now need to figure out ourselves what to pursue
with all the great tools that modernity has produced. We can go seriously
astray in that task. But it is no longer credible to claim that we,
ordinary folks, are to be treated as if we were little children and
others, who are just as vulnerable to malpractice as we are, may make us
behave properly. We are all required to address those issues with no one
else authorized to do it for us, and modern science and technology,
combined with the principles of a free society, make this possible.

2003’s Biggest Story

Tibor R. Machan

What was the biggest story of 2003? The US Government’s decision to go
to war with Iraq, that’s what. Why? Because, all in all, despite the
desirable result of bringing down a vicious dictatorship, it was an
unjustified military action taken by our government.
What justifies going to war? When a country is attacked; or when another
country with which a sound, just treaty has been established is attacked;
or when it is imminent, as demonstrated by solid intelligence information,
that a country or an ally will be attacked. Then it is justified to
initiate military action against a country waging the attack or about to
wage one. That is what the military of a just system of government is
for, to defend the country, not to wage war against countries with
governments that may very well deserve to be brought down.
There are quite a few rogue countries across the globe, always have been
and probably will continue to be, given the propensity of governments to
be despotic, tyrannical, and oppressive. Until very recently there have
not been governments with much merit anywhere in human history because
they have not done what justifies their establishment, namely, protect the
basic human rights of its citizens.
In fact, probably all countries before the birth of the United States of
America have been illegitimate, strictly speaking. Instead of recognizing
their inhabitants as citizens, they treated them as subjects. Subjects are
people subjugated by rulers, more or less cruel and vicious, but in all
case ruling wrongfully, ultimately illegitimately in terms of just law,
which is supposed to arise from the full consent of those who are being
Accordingly, hardly any wars have been justly waged by any of its
participants, although some were less guilty of injustice than others.
But if one takes the idea of individual human rights seriously, if,
indeed, such rights exist—as the US Declaration of Independence affirms
and the US Constitution attempts to render into law—then it cannot be
reasonably doubted that nearly all wars in human history have essentially
amounted to acts of mutual aggression. They were like bullies trying to
rule the territory, with none of them having any justification for their
violent conduct. No doubt, some bullies are less awful than others, but
in human history wars have occurred mainly between bullies of more or less
Since, however, only when a country’s citizens are attacked—or are
demonstrably about to be attacked—is it justified to go to war, it is
clear that what President George W. Bush decided to do was wrong.
Moreover, he and his staff clearly realized this ,since they so eagerly
advanced plausible enough reasons for their actions, reasons that had only
one major flaw—they were mistaken or cooked up.
If Iraq had had WMDs, or was on the verge of producing them, it
indeed have been justified to attack it. That is like one’s pulling a gun
against and shooting a person who is known to be about to shoot one. But
no matter how vicious a regime may be, if this viciousness isn’t violently
aimed at a country’s citizens, that country’s military isn’t justified to
attack the regime.
There is an effective alternative, of course, but sadly it is out of
fashion and, indeed, largely illegal, although laws banning it are
themselves unjust. That is for the citizens of other countries, along
with the subjects of the rogue nation, to stand up for the tyrannized
citizens as volunteers (who aren’t duty bound as are all soldiers to
defend the rights of their country’s citizens). Look at it this way,
roughly: My body guard is duty bound to defend me but not to go around and
defend others, even if those others are being attacked or oppressed.
However, if I want to volunteer to help these others, that could be fully
Something along these lines characterized the Spanish civil war
in the early part of the 20th century. That is why thousands of civilians from
around the globe went there to fight for a government attacked by fascists.
This, however, didn’t happen when Iraqis needed to topples theirs.
Instead what did happened in 2003 is that the US military left
its proper post to wage a war there was no justification to wage. No amount of
double talk can make this right, even if some clear-cut good consequences
came of it all. Some very bad ones did as well.