Friday, April 22, 2005

Column on Being Right but Alone

Being Among the Few who are Right

Tibor R. Machan

When she was about 16, my older daughter and I were sitting in my small
house in Auburn, AL, and she turned to me to ask, ?How do you deal with
the fact that so many people think you are wrong?? She knew. They did, and
still do.

Just yesterday I took part on a panel discussion at Boalt Hall, UC
Berkeley?s School of Law, organized by the branch of the Federalist
Society there, a group with a largely conservative membership in the legal
profession. Of the three of us on the panel, I was clearly the most
radical?or if you will, outrageous. The topic was ?Is America
Post-Democratic?? That meant, as I gathered, whether the United States of
America is still something of a democracy or has this changed, if it ever

My colleagues on the panel, a political science professor from UC
Berkeley and a former director of a Green organization affiliated with
Ralph Nader, spoke mostly about the particulars of contemporary politics.
The professor lamented the alleged hegemony of the Bush conservative
administration, arguing, if I understood him correctly, that Bush?s team
has been moving toward a more and more remote government, one lacking
accountability and severely restricting the input of majority of the
members of the citizenry. The man from Green, in turn, lashed out as the
allegedly inordinate influence big corporations have on American politics,
itself a clear indication, he claimed, of anti-democratic trends in the

Both of these chaps pretty much took it as given that democracy is simply
a swell thing, the more of it the better, period. In contrast, I argued
that democracy is of merit only when severely constrained. In this I had
some good authority from the American Founders, of course, from Federalist
No. 10, where Madison, Hamilton and Jay wrote: ?Democracies have ever been
spectacles of turbulence and contention; have ever been found incompatible
with personal security or the rights of property; and have in general been
as short in their lives as they have been violent in their deaths.? To
indicate that his sentiment had strong historical support especially now,
I mentioned the democratic selection of Adolph Hitler, of Benito Mussolini
and the example of some current democracies such as Haiti.

But then I went out to point out that taxes are a form of extortion and
the majority?s approval of it?and Justice Holmes calling it the price we
pay for civilization?doesn?t change this fact. I also defended the view
that the power wielding of the democratic method is at most appropriate
for small role of selecting administrators of a just legal order and,
perhaps, in the initial institution of a constitutional system of
individual rights. (Here I was thinking of how nicely this is shown in
that classic Western movie, The Man Who Shot Liberty Valance.)

As expected, no one on the panel and the audience appeared to agree with
any of this, although to my surprise several law students did come up to
me afterwards to ask me very friendly questions about my position. The
unpopularity of my views might put me in a funk, you could speculate, but
I have had a pretty long history of similar responses from colleagues and
people in general for over 40 years of thinking as I do. (I was inspired
to take these kinds of ideas very seriously back in 1961, when I first
encountered classical liberalism in John Locke and Ayn Rand as a member of
the US Air Force in Washington, DC. Also, they pretty much are why I
trekked from Hungary to the USA back in the 1950s.)

So, what did I answer my daughter who, incidentally, shares most of my
convictions on political matters? My response went along the lines of,
?Well, sweetie, I like being popular, I like having friendly colleagues,
but I must say I like truth even more.? Later I learned that this is a bit
like what Newton scribbled in his Cambridge notebooks: ?Amicus Plato,
amicus Aristotles; magis amica Veritas? (Plato is my friend, Aristotle is
my friend, but truth is a better friend).

And, let?s face it, when back in the early 60s I ran across the ideas
that I found to be closest to the truth as far as I could tell from my own
explorations and, later, my studies, there were very few folks who took
them seriously, which is no longer the case. Still, in terms of
percentages, those convinced of the truth of individual rights and the
justice of a regime grounded on them are still too few.

Yet think of it this way: The idea that each person is, by virtue of the
very nature of his or her humanity, a sovereign being, a self-ruler not to
be ruled against his or her will by anyone else is not only true but also
the most radical idea in all of political history. So why expect that it
would be all that popular anyway? It takes time for such a novel,
outrageous idea to catch on, if it ever fully will.

Wednesday, April 20, 2005

Column on What Private Property Rights is Really About (sans tyupos)

Misunderstanding Private Property Rights

Tibor R. Machan

A misguided understanding of the right to private property?and of the
free market spawned by it?has to do with what George Hotchkiss of NYU said
many moons ago, namely, ?People are primarily interested in themselves and
the things that pertain to them?their homes, their children, their health,
complexion, comfort, recreation, financial security, their friends, their
own struggles and triumphs of daily life? (An Outline of Advertising,
1957). While there is some truth in this, there is also much that the
statement neglects.

For one, sadly too many people are not diligently enough interested in
themselves?certainly not in taking good care of themselves, their
children, etc. Too often they are quite negligent, which makes it
plausible for others to promote the idea that they need taking care of by
others even in their adulthood.

More importantly here, however, many people while taking reasonable care
of themselves are also very interested in promoting various causes that do
not directly involve them at all. They want to contribute to the arts, to
curing various diseases, to advancing the sciences, and to advocating
certain political ideas and ideals or public policies. Indeed, billions
and billions of dollars are spent on such goals that do not directly
benefit the persons themselves who do the giving (except in the vacuous
sense that they are interested in these goals).

Now if it is clearly understood that the respect and protection of the
right to private property facilitates not only the pursuit of one?s
direct, immediate self-interest but also all those other projects that
people so evidently and widely support, then the abrogation of that right
can be seen in a different light from the usual.

Many who oppose private property rights do so on the grounds that they
hold to the Hotchkiss position?it simply facilitates the pursuit of
private goals. Thus it must neglect others and impersonal goals. But if
we understand that private property rights facilitate much else besides
taking good care of one?s immediate concerns, including many of those I
have listed above, then attacking it takes on a very different coloration.

Attacking private property rights comes not so much to making sure that
people don?t just care for themselves but to making sure that they don?t
get to choose what the goals are that gain support, including goals having
little to do with themselves. In other words, attacking private property
rights amounts to attacking the right of individuals to choose, to decide
what kind of goals they get to support and how much support these goals

Putting it a bit differently, attacking the right to private property
amounts to attacking the judgments of private individuals who would have
the option to support various goals they believe in. Instead, government
officials?politicians, bureaucrats and their advisors?get to confiscate
private property in taxes and other takings and they get to say to what
ends these will be contributed.

But seeing it this way should make us all realize that the issue isn?t
about ?selfish versus benevolent? goals but about who gets to be
benevolent and who gets to say who and what will be benefited. Why, one
might ask, should it be people with political clout who get to make that
decision? Are they really better at making such decisions? Are they really
less likely to engage in unreasonable acquisitiveness, to be greedy, to be
narrow-minded, to serve vested interests?

In fact the evidence seems clear that those in politics are far more
inclined to serve vested interests than are ordinary folks who on their
very own tend to be quite generous. Billions of dollars, for example, are
sent abroad by American citizens, all on their own initiative, to help
people who are in dire straits. Much more is contributed to various
domestic causes.

Besides, the idea that those going into politics or signing up as
bureaucrats are the most benevolent types in society is, despite what they
often wish to have us believe, so contrary to what we all know from the
daily news as to be utterly ridiculous. It is shear gullibility to believe
such a thing, but because of this mistaken notion of the right to private
property and some defenses of it, it gains undeserved credibility. It?s
time to call the confusion?or indeed trick?for what it is, namely, a way
to bamboozle people into relinquishing their right to distribute their own
resources as they judge best when they are, indeed, the best ones to judge.

Monday, April 18, 2005

Column on FDR's Phony Rights (updated)

Roosevelt?s Phony Rights
Tibor R. Machan
April 12th was the anniversary of FDR?s inglorious death, from ailments
largely hidden from the public in a pattern of deception that has now
become all too closely associated with America?s political leadership. But
that?s nothing compared to the deception perpetrated upon the American
people via Roosevelt?s list of phony rights, a list that forever corrupted
the ideas of the American Founders.
Roosevelt unhesitatingly referred to this list as "a second Bill of
Rights under which a new basis of security and prosperity can be
established for all regardless of station, race or creed." Here is what
was part of the list simply cannot be upheld as true, as a list rights
that makes good sense:
"The right to a useful and remunerative job in the industries or shops or
farms or mines of the nation.? Well, if we do have such a right, then
others must be forced to employ us, thus subjecting them all to
involuntary servitude.
"The right to earn enough to provide adequate food and clothing and
recreation.? Once gain, such a right would require it of government, which
the Founders identified as having been instituted so as to ?secure? our
?unalienable rights to life, liberty, etc.,? to violate those very rights.
Instead of leaving us be free, having such rights means government must
coerce us into laboring for others.
"The right of every farmer to raise and sell his products at a return
which will give him and his family a decent living.? This, too, means the
farmer must be provided with customers, willing or unwilling. But that
means the customers are not free to choose what they will buy for
themselves but must do the bidding of the farmers.
"The right of every businessman, large and small, to trade in an
atmosphere of freedom from unfair competition and domination by monopolies
at home or abroad.? By claiming a right to ?unfair competition,? FDR
insisted on a cadre of market supervisors, a squad of police state
officers empowered to decide for people in the market what is or is not
fair, which is simply an impossible task and gives those police state
officers vast arbitrary powers over other people.
"The right of every family to a decent home.? OK, so this decent home, if
it is everyone?s right, will have to be secured on the backs of other
people who may have other projects they choose to pursue instead of
providing decent homes for the rest of us. Free men and women ought never
to be made to produce goods or services for other people, not if that?s
not what they choose to do. That is their own task, however difficult it
may be.
"The right to adequate medical care and the opportunity to achieve and
enjoy good health.? No way to do this without enslaving a great many of us
to serve other people, to do so against our own free will, thus once again
violating our right to liberty.
"The right to adequate protection from the economic fears of old age,
sickness, accident and unemployment.? This, too, is something all of us
ought to provide for ourselves, not extract at the point of the gun from
others. Our right to liberty is, in part, to be respected and protected so
that we may all strive to provide for ourselves and if we are unable to
do, to seek help from others, not by forcible but peaceful means.
"The right to a good education." It is our parents, who chose to bring us
into this world, who should be securing our education, and after that we
ourselves by either paying for or investing in our education or by
convincing, not coercing, others to do this for us if we cannot. Yes,
Virginia, public education is itself a forcible transfer program of
resources and services unbecoming of free men and women.
The plain truth is that all these phony rights of FDR and his supporters,
many of them going very strong today in law schools and political
philosophy departments across the country, indeed all over the world via
the UN?s adoption of the list, have helped to systematically abrogate our
genuine, bona fide unalienable rights, rights that are the conditions of
our freedom and of a free society.
No, Roosevelt?s phony rights must be given up for what they are, a
nightmare of political privileges which made it OK for government to grow
into the Leviathan it now is.

Sunday, April 17, 2005

Column on the Constitution in Exile movement (sans typo)

A Basic Legal Debate Nearly Grasped

Tibor R. Machan

Professor Jeffrey Rosen?of the George Washington University School of Law
and one of the stars of contemporary legal journalism who writes from The
New Republic to The New York Times Book Review, and innumerable
publications in between?has just penned a pretty fair piece on the
Constitution in Exile jurisprudential movement (in The New York Times
Magazine, April 17, 2005). The main actors of the movement are libertarian
legal scholars Richard Epstein, Randy Barnett, Chip Mellor, Clint Bolick,
and others, all of whom have a healthy respect of the principles that
underlie and serve to anchor the legal system of the United States of

The hook for Professor Rosen?s piece is the somewhat noisy public debate
about whether the US Constitution is a ?living document? that?s ?growing?
all over the place, or one with stable and lasting ideas that really
should not be altered except when basic facts about human nature and
society make that necessary. Less noisy yet still influential is the
debate about how to interpret the Constitution, in line with original
intent, the moral views of current justices, or some other method that
will guide us toward justice in how the law is understood in America.

Professor Rosen, unfortunately, does not bring in the most basic issue
that?s at stake here, namely, whether the legal system of a just society
has something outside of itself?for example, natural or divine law?on
which it must rest, or is it simply the result of the will of those who
rule?be that the people (through a democratic or republican process) or a
king or some other powerful political body. This debate is best known by
the phrase ?natural versus positive law.?

The natural law idea is that some facts about the world, especially human
nature, underlie how a legal order of a human community ought to be
understood and framed. According to this view the US Constitution, for
example, had been framed with the conviction that its provisions did, to a
significant extent, accord with a sound understanding of the laws that may
be derived from an grasp of human nature and community life. Even where
the principles of the Constitution had to give way to certain political
considerations, so that it could become the law of the land, these could
always be checked against these pre-legal, pre-constitutional principles
of justice and criticized, approved of and revised accordingly.

The positivist position holds, in turn, that laws are inventions of those
who run a society?be they the people (through their elected officials) or
some ruler or ruling elite. There are no fundamental principles to which
laws ought to be adjusted. After all, morality itself is mere convention
or invention, so to look for foundations for human law is a futile effort.
Moreover, it may even be anti-democratic because the idea of such
fundamental moral or natural law can easily go against what the people (or
the majority of them or their representatives) want as law and public

One point that has always been in contention between the two sides is how
to make room for the common sense understanding, one very problematic to
deny, that some changes in the law are inescapable. The natural law side
would appear to oppose such changes, while the positivist law position
would relish them nearly without limit. Is there some way that can be
loyal to the idea that changes are inescapable, yet they must not be
arbitrary, a mere caprice of the ruler, the majority or (more often)
whoever happens to have managed to get to ?speak for us??

Professor Rosen makes it appear that the Constitution in Exile folks are
dogged absolutists about the US Constitution, whereas in fact they aren?t
or, more aptly put, need not be. They can insist that certain fundamental
principles are stable and lasting (enough) and need only small
modification and adjustment as human understanding grows (e.g., about
human nature, how children should be understood, the facts of
homosexuality or when human existence comes into being during pregnancy).
The dogmatism or absolutism charge is, thus, quite unfair. What is
objectionable from their viewpoint is to think of the Constitution as
entirely malleable, not so much living (which is always guided by
principles of the life in question) but cancerous (living out of control).

Unfortunately we live in a largely anti-philosophical age and without
philosophy the nature of law is impossible to grasp. Rosen and Co.,
especially the major critic of the Constitution in Exile movement he
cites, Professor Cass Sunstein of the University of Chicago School of Law,
unfortunately wish have a grasp without the grounding this requires.
Professor Sunstein in fact wants to take us back to the era when
governments mostly invented law?see his co-authored book The Cost of
Rights (1999)?and granted privileges or ?rights? without foundations, and
thus took us all to be mere subjects of our rulers, even if these would be
the majority and not some monarch.

Yet, of course, majorities can run amuck, no less so than kings or tsars.
So justice can suffer as much at their hands as it can from that of any
unrestrained ruler. It looks very much like the US Constitution has, which
is why the Constitution in Exile movement is pretty much on the right
course in this debate.