Correction

Please change Anthony Scalia to
Antonin Scalia in my column on The Forgotten Ninth Amendment

Column on Scalia and the Ninth Amendment

The Forgotten Ninth Amendment

Tibor R. Machan

In a recent talk US Supreme Court Justice Anthony Scalia criticized his
fellow justices for making law, a role he believes belongs to the
legislature or the people themselves. Justices, he argued, are there to
interpret the US Constitution and this they must do by reading it as it
was intended back when it was framed and when it was later amended. In his
dissent Scalia wrote,

The court says in so many words that what our people's laws say about the
issue does not, in the last analysis, matter: 'In the end our own judgment
will be brought to bear on the question of the acceptability of the death
penalty....? The court thus proclaims itself sole arbiter of our nation's
moral standards.

The charge Scalia has leveled at his colleagues?five of them, the
majority who ruled for abolition of the death penalty for juveniles and
the mentally impaired?is the substance of the general criticism usually
labeled ?judicial activism.? This view decries it whenever the court rules
as if there existed rights which are not explicitly mentioned or
enumerated within the US Constitution. One of the most famous of these
unenumerated rights is the right to privacy and the majority of the court
has ruled in several recent cases that various state laws violate this
right and are, therefore, unconstitutional, invalid laws.

In his recent public talk Justice Scalia argued that the idea of a living
constitution is essentially wrongheaded because it leaves the country
without a firm basis of law by which it can be governed. Instead of a
stable set of constitutional principles, justices have come to make laws
based on their ?personal policy preferences,? thus undermining the classic
doctrine of the rule of law (as opposed to that of arbitrary governors).

The case Scalia makes has a good deal going for it because it is indeed
part of the theory of politics in the USA that the role justices play does
not include making laws, only interpreting the Constitution when some
legislation is challenged through the courts (and reaches the US Supreme
Court). The living constitution idea is, indeed, destructive of the rule
of law and of democracy itself because it encourages arbitrariness, the
departure from governance by law toward governance according to the
justices? own convictions.

Yet, there is a problem here because Justice Scalia ignores the Ninth
Amendment to the US Constitution, the one that states unequivocally that
aside from rights enumerated in that document, the people have others, as
well. The Ninth states that ?The enumeration in this Constitution, of
certain rights, shall not be construed to deny or disparage others
retained by the people.? So, while this does not sanction any kind of
loose, ?living,? constitutional doctrine, it does make clear reference to
rights that aren?t explicitly listed in the US Constitution, rights that
we nonetheless possess.

What would be those rights? Pretty much to do everything and anything the
government isn?t authorized to prohibit. Indeed, the point of the US
Constitution does not appear to be to spell out our rights in particular,
other than to spell out for emphasis of some of the most crucial ones. It
is, rather, to state what the strictly limited powers of government are.

As to whether this authorizes the US Supreme Court to strike down state
and federal legislation that permits the execution of juveniles or the
mentally ill, the situation is complicated. It is arguable, however, that
one role of the court is to spell out the logical meanings of terms within
the constitution for our own times, meanings that have clearly undergone
some rational evolution.

Just as in physics the term ?atom? no longer logically means exactly what
it meant 300 years ago, so in political theory and jurisprudence the term
?human being? could reasonably require some updating. If it is found, for
example, that children and the mentally disabled lack the full capacity of
adult humans, this could reasonably require interpreting provisions of the
US Constitution and other laws accordingly.

And that is just what seems to lie behind recent rulings: for example,
the young, who in our day aren?t permitted to enter into contracts, to
marry on their own, or to vote, would probably not warrant being judged
guilty of crimes exactly as they were when certain nuances in
understanding what human beings are had been overlooked or were not
clearly understood.

Against Scalia it can be argued that although the idea of a living
constitution is dangerous, so is the idea of a frozen one. Reasonable
development in the meaning of the terms in the fundamental laws of the
society is to be expected and should not be thwarted in the US Supreme
Court?s deliberations and rulings. Those who protest that this is
anti-democratic need to consider that the Founders were not pure democrats
by a long shot?just consider the electoral college, which is blatantly
anti-democratic.

Column on thanking a bad man

Appreciation for A Bad Man?s Words

Tibor R. Machan

This is something I would never have thought I?d write?words of
appreciation for the last words of a vicious murderer. Yet I believe they
are due, even though the man who spoke those words is now dead, executed
in Texas for murdering a nurse in the 1980s for a payment of $1500.00.

It is reported that George Anderson Hopper, who received a lethal
injection for the murder of Rozanne Gailiunas in 1983, was asked by the
warden if he had anything to say before he was to die and here is what
this man said:

I have made a lot of mistakes in my life. The things I did changed so many
lives. I can?t take it back. It was an atrocity. I am sorry. I beg your
forgiveness. I know I am not worthy of it.? And he is reported to have
uttered this ?with his voice breaking with emotion.?

Now this is today a rather remarkable event, with someone who has done
something morally terrible accepting his guilt and making an effort to
seek forgiveness for it. It shows, for once rather clearly, that some
people accept responsibility for their evil deeds instead of merely
putting up all kinds of excuses and ?explanations? for how they behaved,
as if it had nothing to do with them at all.

In our era it is fashionable to look upon human behavior as but the same
kind of event as the rain fall, an earthquake, a mosquito bite, or a
tsunami?an impersonal bit of motion in the course of the unfolding of the
multitude of impersonal motions throughout the universe. This idea, that
people are just bits and pieces of matter moving about without any hand in
their own activities, is unfortunately encouraged by a pretty dubious
report of what scientists, especially physicists, and by some evolutionary
biologists, have discovered. By this account of how the world is,
everything is fully determined to go the way it must. That doesn?t mean we
know how it will all turn out, although if we knew all the laws of nature
and had a full list of the stuff populating the world, that, too, could be
done. We don?t so, the story goes, there are going to be surprises?that is
how Stephen Hawking, the famous Cambridge astrophysicist, accounts for our
alleged illusion of free will.

But this story is more metaphysics?and a bad kind to boot?than science.
It simply assumes that the universe has no room for free will. It doesn?t
show this at all. And the evidence is clear that people cause much of what
they do, including the scientific work that supposedly gives them this
story, not to mention all the artistic, technological and ordinary, day to
day, production and creativity we witness from them, for good or ill. The
story so many people in the academy tell?that we just are moved objects
and cannot ourselves move anything of our own, that we lack the capacity
to initiate any of our behavior so cannot reasonably be held responsible
for it?is an extrapolation and a hasty one at that.
Instead, a much more credible, though a bit more complicated, story is
that in the universe there are many kinds of beings, and what they can and
cannot do depends on their nature. In the case of people, then, it is the
fact that we have minds that we can activate or leave dormant that
determines how much of what happens with us will turn out. If we make good
use of our minds, if we think things through, if we pay attention and
follow through with what we learn, including in the area of human
relations, things will go well, but if we are sloppy, lazy, thoughtless
and then try to act accordingly, things will go wrong and sometimes we
will end up perpetrating atrocious things, like Mr. Hopper did when he
took money to fill Ms. Gailliunas.

It is about time that some of us fess up to our complicit in the bad
things we produce, whether they be Draconian misdeeds or minor ones, like
failing to keep an appointment or turning in a class assignment on time.
All this explaining away how people act can only spell self-delusion. And
it perpetuates the myth that just fixing a gene here, or a social
circumstance there, or simply throwing a bit of money at a problem, will
make a huge difference and the world will function smoothly in a jiffy
thereafter. That, in turn, promotes the idea of the meddling government as
the God that will fix it all?with the paradoxical idea that people in
government do have the power of free will but no one else does.

Column on not coercing generosity

Coerced Altruism?s Ruinous Popularity

Tibor R. Machan

You might say I wrote the book on generosity?one of mine had this as its
topic and its title, as well, back in 1998. So when in response to a
recent column, in which I reaffirmed the propriety of freely chosen as
against coerced generosity, I received dozens of really nasty letters,
claiming that I was advocating cruelty and meanness, I had to shake my
head in dismay. Will they never get it?

A bill like the Americans with Disabilities Act, long with many others
that make it a crime not to help those who are in more or less serious
need, is clearly in violation of an elementary principle of morality, one
that is captured in a slogan from the famous German philosopher, Immanuel
Kant. ?Ought? implies ?can,? said Kant?who is otherwise not my favorite
(because he continued to support a very destructive idea, namely, dualism,
the notion that reality is divided into two incompatible, the factual and
the mental, realms). In this, however, he pointed his finger at something
we all can easily accept, if we but think about it a little: If one is to
do the right thing, it must be done freely, un-coerced, voluntarily.
Otherwise we are simply behaving as we are forced to by others, something
for which no moral credit could accrue to us, something that does not make
us decent people and does not make the action morally worthwhile.

In a truly free human community, what measure of generosity, charity,
philanthropy is to be forthcoming from people may not be forced upon them
and the beneficiaries may not use the force of laws and regulations to
elicit what they need and want from others. This is true in the case of
all so called civil rights laws, too, be it for the benefit of members of
any type of minorities, be they of some race, gender or disabled group.

For instance, when immigrants come to a free society, they, unlike those
who come to certain states of the United States of America, are not
entitled to be provided by laws and regulation with special language
assistance in their schools or places of work. They need to do the
catch-up work with freely given support, not support gotten at the point
of the gun. And that goes, also, for all disabled persons, however much
this may seem to them unfair or even unjust. It is far more unjust to
initiate force against people so as to help one?a point that should be
easy to appreciate in simple personal relations in which it is plain
common sense that morally no one may coerce another to be helpful, even in
cases of dire straits.

In the community in which I live a disaster struck a merciless blow upon
a family, killing a teen and destroying their home recently in a wild yet
well populated canyon during heavy rains. In at least partial response,
thousands from the neighborhood, including about 75 business
establishments from near and far, gathered for a commemorative feast and
raised quite a bit of support for the survivors of the disaster,
voluntarily, with no one rounding them up to provide the support. This is
the way help is secured in a civilized, decent, and free society, not via
threats to put people in jail or of fining them if they are not willing to
give of their own free will. That is a central difference between how free
men and women live in one another?s company and how barbarians do, who
extract what they need and want by actual or threatened brute force.

Yet, in response to my recalling what would seem an obvious
point?especially in a country that put on record (and the government of
which makes a big deal of advocating for all) the conditions by which free
people live together, as wall is in the spirit of George Orwell?s
admonition that "Sometimes the first duty of intelligent men is the
restatement of the obvious" (http://oaks.nvg.org/wm4ra8.html)?I got an
inordinate amount of flack. No, I am not complaining?I merely lament this
fact and make note of it as a disturbing sign of how fragile the idea of
liberty is in the very country in which the Founders considered each
citizen as having the unalienable right to acting freely and one that had
a tragic Civil War fought in large measure so as to abolish slavery,
involuntary servitude.

Column on Evil and The Welfare State

Welfare Statism and Evil

Tibor R. Machan

For a long time I have been reading works in political and social theory
and most of the well published ones?by major commercial and university
presses?agree with this passage that is quoted in The Status Syndrome
(2005), a recent book advocating various government measures to save us
from anything and everything that ails us:

The success of an economy and of a society cannot be separated from the
lives that members of the society are able to lead?. We not only value
living well and satisfactorily, but also appreciate having control over
our own lives.

The author of the passage is Amartya Sen, and the statement comes from
his own very prominent book, Development as Freedom (1999). Both he and
the author of the book to which the passage serves as the epigram believe
that the problems of most societies need more vigorous government
involvement and that those who champion the unfettered and admittedly
non-utopian free society are very mistaken.

Given that for innumerable decades the major Western powers have been
vigorous welfare states and that the claim that free markets have
reigned?say under Margaret Thatcher in England and Ronald Reagan in the
USA?is an out and out lie, it is a valid question to pose why all this
transfer of wealth to the people organized by governments simply hasn?t
done the job of fixing things for those at the lower rungs of the economic
system. There are probably several reasons but a few stand out.

Most generally, the ?lives that members of the society are able to lead?
just isn?t available for even the most energetic welfare statist to
guarantee. There is always something that undermines the grand project of
remedying everything via coercive means, including (a) bureaucratic
rip-offs, (b) lack of the requisite knowledge of what would actually help
people most, and, yes, (c) the bad choices of the very people who are to
be helped out.

There has enough been said about (a) and (b) by well known social
theorists to fill a library but (c) is something else. In our era it is
simply too surly to suggest that many, many people are personally
responsible for much of what happens to them in life. No, it?s got to be
something else, always. (This is also why many intellectuals cannot let
go of the idea that terrorists may really be vicious people, not victims
of, say, globalization or American imperialism.)

But there is a bit of good news now, which may finally enlighten our
decently motivated statists and their academic defenders, people who think
every problem has a solution if only you throw enough money at it and use
sufficient force to get it fixed. Professor Michael Stone of Columbia
University, a psychiatrists to boot, has chimed in with a surprising
(though largely old fashioned) piece of news. As reported in the English
magazine THE WEEK, ?He found that while some [of 500 serial killers in
both the US and Britain he studied] suffered from mental illness or had
been damaged by some event in their history, others were perfectly sane.
They simply enjoyed killing.? As the professor put it, ?Such people make a
rational choice to commit terrible crimes over and over again. They are
evil and we should be able to say that formally.?

Which pretty much opens the door that other people may not be quite so
evil as serial killers but could perpetrate bits and pieces of evil
themselves, including refusing to do much good for their own lives. So
when Sen states that ?we [i.e., all of us] appreciate having control over
our own lives,? he is wrong?some people simply do not appreciate this and
choose, instead, of float about, aimlessly, no matter how much effort is
put into helping them out of their misery.

Of course, most of us who pay any attention to the world, beginning with
our family and neighbors and friends, know this well enough and have
always. There are ne?er-do-wells about everywhere, people who are lazy,
irresponsible, and hopelessly incorrigible on that score, apart from the
really vile ones the professor was studying. And in large societies there
are very many of them and they will always be there. With the welfare
statists? refusal to acknowledge their existence, however, the fruitless
effort to fix these people?s lives by sacrificing the lives and labors of
others for their sake continues, despite the evidence that they will not
be helped.

Perhaps these people need to learn a thing or two from professor Stone
and start admitting that some people ask for their own misery and public
policy and political theory need to take this into account.