Obama’s Supreme Court Plans

Tibor R. Machan

This is just a rumor but it seems like President Obama will attempt to place Harvard University Law Professor Cass Sunstein on the U. S. Supreme Court. This idea has been aired on the Internet at The Washington Independent web site. For the time being Sustein has been tapped to head the Office of Information and Regulatory Affairs but, as the site reports, “Sunstein has also been mentioned as a potential Supreme Court pick under Obama, although a position in the administration might reduce the likelihood that he’ll move to the bench.”

This is an ominous prospect, to say the least, given that Professor Sunstein has been a constant critic of a prominent element of the American legal tradition, namely, the institution of the right to private property. The Fifth Amendment to the U. S. Constitution mentions this right explicitly when it states that “nor shall private property be taken for public use without just compensation.” Indeed, the only such taking that is permitted is “for public use,” which is to say, strictly speaking, for a use of the entire citizenry--for example, a military based, a court house, or a police station. These are the kind of facilities that qualify as public ones since their function is to serve the entire public, not certain special or private purposes.

The reason the July 2005 U. S. Supreme Court ruling in Kelo v. City of New London, CT., was such a departure from the U. S. Constitution is that it sanctioned the taking of private property of private use--the City was going to transfer Kelo’s property to some private industry that would pay higher taxes. (Nothing has been developed on that property so far, by the way!)

Professor Susntein believes, judging by the book he coauthored with Stephen Holmes, Cost of Rights: Why Liberty Depends on Taxes (W.W. Norton, 2006), that the public at large--meaning the government--owns all the wealth in the country and taxation is merely its way of leaving some of that wealth for private citizens to use as they see fit--that is to say, whatever remains in their hands once the public via government has assumed control of the wealth it supposedly owns.

This is a thoroughly reactionary view of property, given that a basic characteristic of the regime overthrown by the American Revolution as that it owned the country. In a feudal system the government--king, tsar, pharaoh, or some such ruler--owns the entire country, even its citizenry or, rather, subjects! The American Revolution was in part about rejecting this idea and affirming its opposite, namely, that it is citizens who own the wealth, privately, and have the right to hold it, trade it, or give it way as they choose. Taxation is merely a payment for government’s services, such as providing the defense of the country, its court system, its police force and the like. Everything else is private property.

Professor Sunstein, an arguably likely choice of President Obama for the U. S. Supreme Court, wants to take American back to pre-revolutionary days and affirm that it is government, not the citizens, that owns property. He joins, thus, Karl Marx and Frederick Engels who in The Communist Manifesto declared as the first job on the road to the essentially reactionary--rather than progressive--system of communism the abolition of private property.

Of course, Professor Sunstein and others who hold this position and have published prominent works advancing their case, do have arguments that need to be addressed. I am here not debating whether they are right or wrong, although I do think their position is impossible to sustain philosophically, ethically, or politically. For now, however, my aim is to make it clear to my readers that President Obama’s objective is indeed a radical change in how American is to be governed. He seems to embrace at least one of the basic tenets of socialism and communism, namely, that all property must be public and controlled by the government.

We are in for some serious changes indeed.

Obama's Job Self-Description

Tibor R. Machan

In his book The AUDACITY of HOPE, Barack Obama provides readers with a pretty clear sense of his understanding of politics and why he finds the Declaration of Independence unsatisfactory as his guide in matters of governance. Very early in the book Obama mentions the genesis of his political career and what kept him going even in the face of obstacles such as his strange name, something called to his attention by a media consultant who pointed out the fact that the "political dynamics have changed" by showing a newspaper to Obama with the name "Osama bin Laden" prominently featured on the front page. Nevertheless, Obama pressed on and he explains why: It was "the legislative work, the policy making that had gotten [him] to run in the first place."

Now in a free country the legislative work and policy making is confined to figuring out how best the secure the rights of the citizenry. As the Declaration states, governments are instituted to secure our rights, so politics is about that, nothing else. By this approach the job description of a politician is to work hard to make sure that we have our rights well secured, protected. These rights, if you will recall, include our life, liberty, pursuit of happiness and similar conditions of freedom. The American political tradition is all about such negative rights, as political theorists call them--rights that specify what others may not do to us, rights in terms of which our sovereignty is established. Unlike the regimes of the past, in which politics involved to a very large extent the management of society--religion, science, art, commerce and all--in the new American political system politics was not about these tasks at all but about serving the public by fending off domestic and foreign aggression.

As the world evolves the proper way to secure our negative rights must be adjusted because the violation of these rights can take numerous novel forms. It is the function of the legislature of a free society to keep up with these novel threats to our individual rights so that government can keep being effective in securing them all. In the bloated welfare state that America has become the job description of a politician isn't figuring out the best ways to secure the rights of the citizenry. In welfare states and in the even more robust systems of socialism and fascism the job of the politician changes from a concern about how to protect our individual (negative) rights to "policy making." Which is to say, politicians are once again the managers of the society and make policy instead of securing the rights the protection of which make it possible for the citizenry to engage in their own peaceful, non-aggressive policy making.

The souls of our politicians are different from how the American Founders understood they should be. Politicians who were to serve us after the American Revolution--which rejected government that would manage us all as if we were subjects (as we are under the king)--would not be making policy. They would be at work on how to make it possible for us all to make policy in our lives, professions, businesses, arts, and all other human endeavors. Like referees at a football game, politicians are supposed to be there to play the game--to make policies about the innumerable undertakings of free men and women--but to provide protection against those who would seek to make trouble by breaking the rules, by violating our rights.

Sadly, Barack Obama, along with all the other welfare state politicians in our era, did and does not see his job description in the light that the American Founders laid out. Rather he wanted very badly to make policy for the rest of us. And of course, then, the Declaration of Independence would not contain the political philosophy he would wish for. Instead it is the old regime, whereby monarchs ran society, that would suit him much better.

The Genesis of Tyranny (corrected)

Tibor R. Machan

One of my neighbors has built a small shed next to her home, maybe 8x8X8, if that much. Its not connected to her house. Indeed, it is nearly invisible from the outside--you must actually be snooping in order to get a decent look at it. The purpose of it, I have been told, is to store a stroller and some other objects associated with her young children. It couldn't possible be a hazard to anyone near or far.

Nonetheless a neighbor of hers down the street, roughly 120 yards from her on the other side, snitched on her, calling the local county authorities and reporting that not everything about the shed is in full compliance with what the planners like. By doing this our nasty neighbor will have imposed several thousand dollars worth of totally useless expense on the family that built the shed.

When I found out about this I asked what on earth might have motivated the snitch and was told that it was politics--the folks who built the shed are conservative-libertarians and the snitch is a statist through and through (which I could confirm from the bumper stickers on her vehicles, including a nifty BMW SUV). I believe, though do not know it for sure, that this snitch works at a local community college which is why one of her bumper stickers lamented that education doesn't receive enough funding form the government (a self-dealing complaint for sure).

This episode in my little community goes to illustrate several aspects of political philosophy. One is the utter utopianism of that currently prominent doctrine called communitarianism. It is this doctrine today that has replaced the utopianism of communism--indeed it amounts to small scale communism. It worships at the altar of community harmony, fraternity, promoting the notion that unlike in capitalist markets, under communitarianism people will share and support one another without rivalry, without hostility. Give me a break.

Another element of this episode is just how in the absence of strictly protected individual--especially private property--rights, citizens lack protection against the prejudices and ill will of their fellows. I recall back in communist Hungary--as well as in Nazi Germany--wherein the idea of social solidarity ruled, all kinds of assaults on people were carried out by folks who didn't like their politics or religions or just their style of life, all in the name of community solidarity, of having to follow some kind of pseudo-common good that the powerful members of society laid down for everyone. The suspicions this reaped within the population of various communities was felt by everyone--is my next move going to provoke someone to turn me into the government? Will someone report my private actions, even thoughts, to the authorities who will then intrude on my and my intimates' lives good and hard?

So much for communitarianism, so much for the false ideal of harmony within all neighborhoods! This is just what a system within which privacy--individual rights to life, liberty and property--is respected and protected is meant to avoid. No one can do away with nosy neighbors, with their gossip and ill thoughts but their attempt to impose their ideas on others will have no legal standing in a society wherein such rights are respected and protected. This false ideal of community is based on a misunderstanding or at least total lack of appreciation of human individuality. It fails to recognize and respect genuine human diversity, so that, for example, my or my neighbor's small shed in our front or back yards may be built even if others frown upon its style or purpose.

Another lesson from this episode in my neck of the woods is that it's not always politicians or bureaucrats who champion arm-twisting--many citizens do, as well, so long as it serves their hostile purposes, so long as it serve to impose on others what they prefer, even if only to express their prejudices and dislikes of whatever kind, including political. This is, after all, one way that one can get back at those in one's community who refuse to bend to one's will!