Column on the Court's 6/23 Ruling (improved)

Betrayal at the Supreme Court

Tibor R. Machan

In the 1840s a debate raged about whether strikers may be punished as
economic saboteurs because they disrupted commerce. Some argued that the
police power of government authorized prohibiting strikes on the grounds
that government is to keep commerce in motion and forbid work stoppages.
This, indeed, is the theory of monarchical government in which the king or
queen or tsar decided how people must live, what purposes they must pursue.

At that early time of the American Republic, however, the courts
ultimately affirmed the principle of freedom of association by
invalidating the use of the police power whenever it involved the
violation of individual rights. Strikers, the courts held?in, for example,
in judge Lemuel Shaw's ruling in Commonwealth v. Hunt, (in MA, 1842)?
were exercising their right to withdraw from their employers?the right of
free
association?and this trumped any paternalistic police power that had been
imported into American society from abroad where, of course, kings and
other supreme rulers and not individuals were understood to possess
sovereignty. This is one reason, still, why many people around the globe
are considered, strictly speaking, to be subjects, not citizens?they lack
sovereignty, or self rule.

The US Supreme Court has now reversed itself on the score of what counts
for more in this country, individual rights or state power. In a 5 to 4
ruling issued on June 23, 2005, in Kelo v. New London City (CT), the court
held that the city of New London, CT, had the legal authority to place its
idea of economic development above the individual rights of citizens in
New London, in this case their right to private property. They decided to
expand the police power of government, in this case its eminent domain
power, way beyond what the US Constitution specified it in the 5th
Amendment. In that Amendment private property was deemed to be subject to
eminent domain measures only where the purposes of taking it was public
and even
then individuals would have to be properly compensated for what was taken
from them. A public purpose is one that serves the interests of everyone
in the community in relationship to his or her citizenship. As citizens,
we are all in need of police stations, court houses, military bases and
the like, since all these serve the purpose of securing our basic rights
from
those who would violate them. (That is the public purpose governments are
instituted to secure for us all, as the Declaration of Independence makes
clear. The Constitution, in this case, merely codified this idea into the
law of the land.)

But New London, CT, as other cities across the USA, has decided to
violate the right to private property so as to promote the city officials'
conception of economic development. (This idea, of course, of ?economic
development? is foreign as an official goal to a political order based on
individual rights, since something can be one individual?s or group's
economic development
while not another?s, depending who one is, what one?s goals are in life,
etc. Such collectivist notions as ?a city?s economic development? are
antithetical to fee societies.) The individuals whose rights were so
violated brought suit which then went all the way to the US Supreme Court.
They had hoped that this body would show loyalty to both the spirit
and letter of the American legal tradition by following in the footsteps
of the court that ruled against the police power in the case of striking
workers and in favor of individual rights.

Alas, it wasn?t to be. And that is not really a very great surprise,
although it is, of course, a terrible disappointment and travesty of
American justice. The 5 to 4 decision pretty much follows in the footsteps
of other recent decisions in which individual rights have been trampled
upon?the case of medical marijuana, the case involving forcing farmers to
fund public service propaganda in which they do not believe, etc., etc.

Some people who profess a love of liberty actually defend this decision
on the grounds that the US Constitution should only be taken to limit the
powers of the federal government. By this line of reasoning your city,
county or state government could completely ignore the Bill of Rights and
censor movies, newspapers, and books, establish a government church, and
violate individual rights if only the federal government is prohibited
from doing so. But this line of reasoning does not work in a country that
is supposed to live by the principles of the Declaration of Independence,
ones that affirm every individual citizen?s unalienable rights to, among
other things, life, liberty, and the pursuit of happiness.

So, in fact, the Court?s ruling is yet another nail in the coffin of
individual rights in the United States of America. It was supposed to be
the protection of individual rights that constituted the prime public
purpose in this country. Now, instead, the several, disparate purposes of
pressure groups being served by various political bodies have taken center
stage and individual rights are legally dead.

Which is to say, soon we can say ?Good bye? to
America the
beautiful, since it is the sanctity of individual rights?not the Grand
Canyon,
the Empire State Building, Hollywood movies or the Pacific shores?that
made
this country beautiful.
-----------------------------
Machan teaches business ethics and political philosophy at Chapman
University, Orange, CA. For more on the topic of this column, see his
Private Rights
and Public Illusions (The Independent Institute, 1995). He is a research
fellow at the Hoover Institution and advises Freedom Communications, Inc.,
on libertarian issues.

Column for the Fourth of July

Why Bother Celebrating the Fourth?

Tibor R. Machan

The Fourth of July is my all time favorite holiday?it is supposed to
celebrate the Declaration of Independence and its revolutionary idea that
it?s not governments, states, monarchs, kings, tsars, and the like that
possess sovereignty, with the rest of us subjects to their alleged
superior will, but we, individual human beings, we are the sovereign ones.
That idea was revolutionary and unpopular then and, let me assure you, it
is no different now.

The bulk of the world, including most Americans, pretty much reject it,
either explicitly (as with those within the academic political philosophy
and science, as well as much of the journalistic community) or implicitly
(as with those within the general public who clamor relentlessly for
ruling their fellow human beings via the government for various worthy
goals of their own).

Our courts, especially the US Supreme Court, give very little credence to
the Declaration?s political ideas. This is evident from how readily they
scoff at the notion that individuals have a right to the pursuit of
happiness (which clearly implies obtaining and using marijuana for medical
purposes), or that they have the right to their lives and liberties (which
also clearly implies they may produce and obtain property in peaceful ways
and not be subject to federal or state regulation and interference for the
sake of various critters). The courts have stood up in defense of
innumerable government powers that have nothing at all to do with the
single just power of government, namely, what it needs to secure our basic
rights. On June 23rd the US Supreme Court sanctioned perhaps the grossest
of abuses of government powers, namely, the feudal police power or eminent
domain, which the US Constitution had restricted to be used only for a
genuine public purpose (such as taking private property so as to build a
cour
t house or a police station). In its ruling on June 23rd, 2005, in the
case of Kelo v,. New London, the Court affirmed, instead, that takings for
whatever purposes governments deem desirable?economic development, tax
revenue increase, you name it?are OK.
Just how reactionary this ruling is can be appreciated that back in the
early 1800s the court struck down the use of the very same kind of police
power for purposes of prohibiting labor stoppages because, despite the
fact that according to the common law practice government had the power to
promote economic stability, the US Constitution implied that the rights of
laborers trumped such police powers. So it ruled, in Commonwealth v. Hunt,
45 Mass. (4 Metc.) 111 (1842) that despite the fact that labor strikes
clearly amounted to an impediment to a community?s economic well being,
the rights of laborers superceded any government interest to promote such
development.. So, clearly, this recent ruling by the Supreme Court is
reactionary! It treats collective goals?that are really just the goals of
some people in a community--as superior to individual rights, such as the
right to private property.
Legislatures, too, care not a bit for human liberty, being as they are now
totally habituated to lord it over us with whatever project their members
deem to be worthy of everyone?s support. City, county, state and federal
projects get funded galore from resources that ought to be for individuals
and their voluntary associations to allocate as they choose. Instead every
branch and level of government dips into our pockets with total
impunity?including by means of the most blatant abuse of the Fifth
Amendment?s ?takings? clause that in fact empowers them all only to take
property for public use (meaning court houses, military bases or police
stations, all of which are means for securing our basic rights). Nowadays
our representatives see no limit whatsoever to their alleged power to
take, take, and take some more.

So what then are all these people celebrating, when the very institutions
created to secure our rights are hell bent?and have for decades been hell
bent?on violating these same rights in every nook and cranny of our lives?
Where is the respect for and joy about the actual content and meaning of
the revolutionary document that?s supposedly be celebrated on the Fourth
of July?

There may be one bit of silver lining within all these ominous clouds of
creeping tyranny. That is that around the rest of the globe more and more
people are clamoring for their liberty, their individual sovereignty, even
without fully grasping its implications. The Soviets were sent packing; it
looks like some of the Latin American and even African countries are
finally abandoning the bad habit of tolerating dictators; relatively free
markets are emerging in China and the former Soviet satellites, and the
world is gradually becoming a global economy where millions and millions
are beginning to get a chance to compete and prosper (even as their
intellectuals and politicians want to contain the trend).

Americans, however, more often than is good for anyone, are regressing.
They are becoming like so many of the Europeans, especially the French,
begging for government protection of their vested interests, be these of
the economic, environmental, scientific or educational variety. As in the
pre-revolutionary eras, when only members of certain favored classes had
the legal protection to try to flourish in life?usually at others?
expense?these champions of protectionism (protect my job, my favorite
bird, my favorite sport, my preferred scientific project, you name it)
give not a hoot about everyone?s equal rights, based on everyone?s equal
humanity.

No, these folks follow not the ideas and ideals of John Locke and the
American Founders but those of Thomas Hobbes and the rest of the ?war of
all against all? champions. They are hoping, in their incoherent ways, to
win over governments to their causes, getting the bureaucrats and cops to
do their bidding while completely neglecting the idea that both these
professionals are supposed to serve all members of the public, equally,
with the protection of the peace.

Maybe what we need is to abolish this holiday altogether, drop the
pretense that most people care about anything besides the fanfare, fire
works, and barbecues. Let?s just admit that freedom had a short and uneasy
career on this continent and was mostly sacrificed on the altar of power,
of the power of some over the sovereignty of others. And even the others
didn?t seem to mind enough to protest. Then, perhaps, some will begin to
think about what has been lost and take certain necessary steps to recover
it all, whatever that would be.

Column on Senator Durbin's Outrage

Was Senator Durbin Over the Top?
Tibor R. Machan
Vice President Dick Cheney said of Howard Dean that something the latter
had said was "over the top" but perhaps that applies more aptly to what
Senator Richard Durbin said on June 14th. Here it is: "If I read this [the
FBI Report on prisoner treatment at Guantanamo Bay] to you and did not
tell you that it was an FBI agent describing what Americans had done to
prisoners in their control, you would most certainly believe this must
have been done by Nazis, Soviets in their gulags, or some mad regime --
Pol Pot or others -- that had no concern for human beings. Sadly, that is
not the case. This was the action of Americans in the treatment of their
prisoners."
What is so outlandish about this statement? Surely, how the prisoners
were treated is by no stretch of the imagination admirable, proper,
becoming of those in charge of them who work for the citizens of a free
society. Nonetheless, Senator Durbin was careless in his comparison. But
there is yet another dimension to his outrage that is worth considering.
I'll come to that shortly.
First, however, it bears noting that regimes such as the Nazis, the
Soviets, Pol Pot, and similar tyrannies routinely treat their very own
citizens in ways involving the deliberate violation of individual rights
and due process. Such regimes have officially sanctioned policies of such
treatment toward these citizens, ones who have not been convicted of any
bona fide crimes but are picked as targets of state terror.
In contrast, countries with less Draconian tyrannies have not conducted
themselves quite so badly. More significantly, when prisoners are taken,
technically their treatment is not governed by the Constitutional
provisions afforded to their own citizens. Due process does not apply to
prisoners of war, although certain international treaties, such as the
Geneva Convention, do set up policies for treatment of prisoners which are
somewhat comparable to domestic due process provisions.
The far greater but widely overlooked problem is, of course, that many of
the countries that do not practice the Draconian tyrannical measures of
the Nazis, the Soviets, or Pol Pot do have hundreds, even thousands of
completely unjust crimes on the books and those who are charged with and
convicted of such crimes do, effectively, become subject to near-Draconian
tyrannical measures, especially if they protest their conviction and
incarceration. For example, subjecting someone to imprisonment and all
that entails for consuming a substance such as marijuana or even heroin,
is grossly unjust, no matter how strictly due process measures have been
followed in reaching this result. Treating such people, who have no
violated anyone's rights, as if they had engage in assault or rape or
burglary is indeed a from of tyranny, comparable to, say, the Soviets'
conviction and jailing of profiteers.
Within a country where such laws are on the books and the jails of which
are filled with such "criminals," the habit of treating people badly is
well established and cultivated. So when prison guards are confronted with
enemy combatants, their treatment of these people is very likely to be far
more harsh than how convicts who committed victimless crimes are treated.
If a drug law offender may be treated as a vicious criminal, then
certainly a person who has very likely served to support terrorism against
the United States of America would not much seem to deserve humane
treatment.
What is very disturbing about Senator Durbin's outburst is not so much
that he invokes the policies of gross tyrannies in characterizing the
treatment of prisoners at Guantanamo Bay. Sure, he was being over the top
on that score, as he later acknowledged in his apology. Of far greater
concern is the fact that he did not and still does not show any outrage
about the thousands of prisoners in American jails whose treatment is
grossly unjust, in light of laws that should never be on the books of a
free country. It is the treatment of these individuals throughout the
country, far more than the treatment of suspected enemy combatants, that
resembles that of the citizens of Nazi Germany, the Soviet Union and Pol
Pot. But it seems on that score Senator Durbin is silent, as are thousands
of other politicians throughout the United States of America. His
credibility as a man of conscience and righteous indignation would greatly
improve if he applied his high standards of justice outside the realm of
partisan political combat.

Column on Why Democracy isn't enough

Why Democracy Isn't Enough

Tibor R. Machan

Democracy, the rule of the majority of the politically active, isn't
freedom. Even if President George W. Bush and many other politicians are
confused about it, unrestrained democracy isn't really much of an
improvement over tyranny--it merely multiplies those needed to impose
tyrannical rule. It's still tyranny because some people coerce others in
various ways, mostly by making them work for goals they haven't chosen of
their own free will. And why is it better to be coerced in such a way, by
many people, rather than by just one and some of his or her thugs? It
isn't.

Yet millions of Americans and people across the globe appear to have
succumb to the allure of unlimited democracy. Is this because they hope
for gathering up enough other people to support their various causes to
form a majority and subdue the rest? Is it because they misunderstand the
value and extent of democracy? Whatever the reason, democracy cannot trump
individual rights--which is why lynch mobs are such widely known examples
of democracy having run amuck.

There is something about democracy that's right. This is that when it
comes to public affairs, all citizens have the right to have an input.
It's only just that they would since the public realm is their realm,
everyone's realm. But what exactly is the public realm?

It is whatever is of concern to all citizens as citizens--not by
accident, such as they may all love baseball. That doesn't make baseball a
public concern, even if all citizens love it. Public policy, public
affairs, the public interest, and all such uses of "public" involve what
concern us all as citizens. And there is really just one thing that fits
this bill--the securing of our rights. The American Founders, whose most
famous ideas are celebrated on the Fourth of July, knew this. Even the
framers were pretty loyal to the notion when they said, in the Fifth
Amendment, that no private property may be taken unless it is for a public
purpose. Why? Because a public purpose is really the combined private
purpose of us all as citizens, that which concerns us because we are part
of a freely organized human community. And that, in the American political
tradition, is all about making sure we all are and continue to be free,
not anyone's slave, serf, involuntary servant, subject, or the like. That
is what is the paramount public purpose in a free society.

Liberal democracy--or what now might best be called libertarian
democracy--is all about everyone having a say about who is to secure our
liberty, what means to use for this public purpose, and certain other but
strictly limited related matters. Anytime democracy is deployed for
something else in connection with politics, it is misapplied. (You can, of
course, have something akin to democracy in voluntary groups like Rotary,
Kiwanis, or Elks, but, notice, it only involves those who have joined!)

If in a local community the majority want a swimming pool, it is a misuse
of democracy for them to force everyone to pay for this because swimming
is not a public matter, not of concern to citizens as citizens. If,
however, a community needs to get a new sheriff, then democracy has
everything to do with this since the sheriff serves everyone in the
capacity of peace officer, protector of individual rights. Conference
centers, parks, schools, libraries and all such things are not public
concerns, even if many, many members of the public are interested in them
and would benefit from them. So to impose the cost of these on people who
aren't willing to support them is unjust, a form of forced labor. (Even
when a genuine public purpose is at stake, imposing the cost on all is
unjust, but let me leave that issue to the side for now.)

Sadly, few people around the world are firmly enough committed to this
limited use of democracy and, so, when they champion democracy, who knows
what they are after. Are they merely interested in mob rule? Are they
concerned with widespread participation in proper public affairs? It's not
clear. And because so few have in the past been free to take part in
public policy determination, they somewhat recklessly embrace democracy
however illiberal it may be. It's time to get clear on the issue, though:
Democracy is just only when properly restricted to bona fide public
affairs.