Wednesday, December 09, 2009

Equality is Irrelevant

Tibor R. Machan

Equality is a deceptive political concept. In the hands of the American Founders it had great merit since it was based on those aspects of human nature that everyone not crucially impeded does in fact share, namely, everyone's basic rights.You and I and all the billions of people in the world and throughout human history are and have, of course, been quite different from one another while we also possess our basic rights to life, liberty and property.

In certain respects the difference among people stems from the plain fact that human individuals are at a certain level utterly unique, irreplaceable. This is why no substitution can be made for a deceased friend, a spouse, a member of one's family. Once you grow close to someone and know him or her intimately, there is just no one like that person. Which is one reason the deceased are mourned so much--they will be missed because no substitution for them is possible.

Human beings are in some limited respects the same but in most respects different. And this is further complicated by the fact that some of their differences as well as some of their similarities are innate, just a matter of what they were born to be, so to speak, or accidental, due to circumstances over which they have no control at all; other differences and similarities are the result of their choices, be these good or bad ones, by they trivial or morally significant.

So both equality and uniqueness are part of normal human life. The results of this can be extremely wide-ranging and the last thing that would be sensible to expect is that some pattern of equality, be it economic, social, religious, ethical, medical or anything of this sort can be implemented or should be attempted. The Procrustean temptation is an incredibly hazardous one. Its sources are many, some benign and some mendacious but all to be guarded against.

For example, often people find a way to carry on in their lives, including how they drive, bring up kids, cook dinner, arrange the furniture, choose a career, invest in the market, etc., and so forth, and this often suggests to them that others need to follow suit. Wouldn't the world be just swell if everyone followed one's example, seeing how it has been so fruitful for oneself? But, of course, different folks, different strokes, more often than not. Different people will enjoy different sports, entertainment, tourist attractions, cuisine and all. And even more importantly, they will actually be better off pursuing different objectives, ones that really suit them well but not their fellows, certainly not most of the time. Indeed, this is well borne out by the fact that when people recommend things, they can usually do a creditable job only when they do so to someone they know very well, at least within the sphere of the recommendation. "You just have to see this movie or go to this store or eat at this restaurant or take your vacation here, etc., etc.," said to a total stranger tends to be quite risky, even reckless.

On the continuum from what is universal, applicable to us all as human beings, to what is only right for a given individual human being, there is a vast array of options suited all the way from what suits millions to what only some here and there and, finally, to just a solitary single one individual. This is what the American Founders, guided by their study of political history and thought, especially the ideas of John Locke, suggested, which is why their claim that we are all created equal had to do with "equal with respect to having certain basic rights" and not with equal opportunities, equal conditions, equal consequences and the like. Equality under the law, of course, is what their idea clearly implies but not other kinds of equality promoted to much these days.

Yes, Virginia, there are those very influential, even powerful ones, who want us all to be engineered into one type, all to be serviced by the same public policies ("options" is a really insulting term since they are not optional for citizens to, say, pay for!). Yet, what a just society is characterized by is that its principles are suited to an incredible variety of citizens, all carrying on as they choose, provided they do this in peace, without invading others or their realms. Egalitarians would toss all this out to institute their one-size-fits-all policies, except of course for one element, namely, that they alone should run the show, no one else. Sharing power isn't on their agenda, especially sharing it with everyone by letting everyone enjoy sovereignty.

Finally, in answer to the claim that equality is necessary to stop envy, I wish to quote Nobel Laureate Edmund S. Phelps:

"The idea that ordinary people are anguished by the thought that other people have extraordinary wealth is also cultivated in fashionable circles without the presentation of any evidence. Most people are practical enough to see that when, say, they have to go to the hospital for tests, what matters is whether the right kind of diagnostic machine is there for them, not whether there is a better machine for others somewhere else."

Monday, December 07, 2009

Is Health Care Reform Constitutional?

Tibor R. Machan

On this occasion I wish to address some of Dean Erwin Chemerinsky's points made in an article he wrote for the December 2009 edition of Saturday Night magazine, in a guest column title "The Constitution and Health Care Reform," one that defends the constitutionality of health care "reforms" currently under way.

Before I begin I wish to enter a protest about calling the health care policies being advocated by President Obama and the Democratic leadership in Congress reforms. In my view they are not any kind of reforms, bits of adjustment here and there, of the approach Americans take to to securing health care and health insurance for themselves. It is rather a major, even revolutionary, change because while in the past some of health care (Medicare and local county hospital policies) has had government involvement, this time the objective is to establish what is called "a public option," meaning a form of health care that is provided by the federal government, just as, say, the Interstate Highway system is provided by the federal government.

But what about Dean Erwin Chemerinsky's major points in this piece? First, though, it should be noted that while the dean comes with impeccable credentials, this should not mislead readers to think that equally well credentialed American constitutional law professors do not disagree with him. For example, the University of Chicago Law School's Professor Richard Epstein takes a diametrically opposed view on the topic. He has published articles and books critical of government regulations of all parts of American society and makes a powerful case that such regulations are indeed unconstitutional. He has even defended the highly controversial idea that anti-discrimination laws violate individual rights (to, for example, freedom of association).

Second, Dean Chemerisnky's argument assumes that the interstate commerce clause authorized the federal congress to regulate--that is to say, aggressively interfere with--commerce (among the several states). Yet, arguably what that clause did is to authorize Congress to regularize such commerce, meaning, to abolish tariffs and duties that had been imposed by the colonies prior to the creation of the union. What Congress was authorized to do, then, is to establish a free market in the United States of America not to obstruct it. Not that this is a popular view among constitutional scholars but we aren't discussing what is popular or not but what makes the best sense, objectively, including in the light of American political and legal history. After all, for a long time the constitutional treatment of African Americans followed precedents that eventually were overturned because they were deemed to be grossly unjust. Well, the kind of welfare statism advocated by Dean Chemerinsky may well be similarly unjust, given how aggressively it promotes violating the private property rights of American citizens. I am not complaining of the dean's embrace of such views, though I object to them, but I protest his assertion that welfare statism is sanctioned by the U. S. Constitution and the political philosophy of the American Founders.

Third, contrary to what the dean implies, the Ninth Amendment to the U. S. Constitution makes clear that there are unenumerated rights--ones not listed in that document--which citizens also have. Recent rulings concerning the use of contraception and engaging in sodomy have relied on this reading. And that is, of course, as it must be in light of the political tradition that underlies the Constitution, one in which one's rights, basic and derivative, are pre-legal, with the law resting on them not the other way around. Since we have many rights by virtue of our human nature, the Ninth Amendment makes eminently good sense.

Fourth, and more generally, in a free country citizens may never be placed into involuntary servitude to their fellows as this health care reform movement intends to do. It makes no difference about the precedence--again, many precedents do not deserve to be followed and those that support a confiscatory, intrusive welfare state could well be among them.
The Cell Phone Hazard

Tibor R. Machan

For a while now I have been observing all the alarm about the use of cell phones while driving a car, truck, bus, etc. And there is hardly any doubt that doing so is hazardous. In his essay for The New York Times, Monday, December 7, 2009, Matt Richtel chronicles some of this and reports, among other matters, that "Bob Lucky, an executive director at Bell Labs from 1982-92, said he knew that drivers talking on cellphones were not focused fully on the road. But he did not think much about it or discuss it and supposed others did not, either, given the industry’s booming fortunes. “'If you’re an engineer, you don’t want to outlaw the great technology you’ve been working on,' said Mr. Lucky, now 73. 'If you’re a marketing person, you don’t want to outlaw the thing you’ve been trying to sell. If you’re a C.E.O., you don’t want to outlaw the thing that’s been making a lot of money'." Mr. Richtel goes back even further and reports how worries about the safety of using cell phones while driving goes back to the 1960s!

Mr. Lucky's line of reasoning is, of course, the favorite one to produce about those who defend some private industry--what they do is mainly to recklessly promote their own economic interests, never mind safety, never mind the interest of customers, never mind good sense--just pursue profit and be done with it.

But this is a caricature, born of cynical theory not of real life. While of course most people first think of how something will help them with their own projects and the pursuit of their own goals, there is nothing in this that shows their indifference to and neglect of other concerns, some of them indeed having to do with how other people are affected.

In the ongoing concern with the use of hand-held and hands free cell phone use while driving a car, the focus seems to be all on what such use does to one's driving and the comparison is nearly always between such use and no distractions at all. But what about the possibility that cell phone use in cars may not be any more hazardous than, say, changing CDs or cassette tapes, tucking in the baby in the back, checking the map, looking for something in the glove compartment, or having a heated discussion with one's passenger, while driving one's vehicle. Indeed, this is probably true but not easily tested and confirmed (or dis-confirmed).

Imposing restrictions on drivers concerning these other possible distractions would, no doubt, be somewhat problematic since all those are mainly personal distractions and no big industry can be held complicit. Deep pockets are missing there, too. Instead these other distractions seem quite normal, just part of life on the road and have been with us since automobile and similar vehicle use itself has been.

Not that I have had the chance to make a thorough comparison except in my own case where I have found that using a cell is, yes, hazardous but then so is checking out one's driving directions, looking for a house number (especially at night), examining a map, going through a personal address or phone book, etc., etc., and so forth. All such activities, while driving, require attention and concentrating on driving at the same time can be challenging; since doing so is not on everyone's agenda as a general rule, why expect something different from people when they have the option to use their cell phones while they are driving?

Forgive me my suspicious nature, but am I seeing here, once again, the eagerness of some political and bureaucratic types to rush in an micromanage us all? Given how silent they appear to be about how cell phone use in cars compares with all those other, more customary distractions, I think my suspicion isn't ill founded. A word to the wise should suffice--it may not be about safety as much as it is about control, about the age old government habit.

Sunday, December 06, 2009

Misusing Emergencies

Tibor R. Machan

There are fewer fallacies as widely used as those captured by the saying, "Hard cases make bad law." This includes all the types mentioned by those who would sanction the systematic violation of individual rights just because they can imagine and maybe even find some instance in which strict respect for these rights is pretty much impossible. Even John Locke, the greatest theorist of natural individual human rights in the history of modern political philosophy acknowledged that one may need to disregard rights when "politics is impossible." Such as in the middle of an earthquake or on a raft in the ocean.

The most frequently deployed emergency case involves people who are in dire straits through no fault of their own and only if they gain provisions from others who have them can they survive and flourish, at least for a time. In my career as an academic philosopher these kinds of cases have dominated the political discussions I've had, both in the journals and at conferences, with those who reject the principles of the free society in favor of the welfare state or even more draconian regimes that violate individual rights galore. It is always some nearly unthinkable cases, since the actual ones people face or know about are mainly explainable by the very violation of individual rights that are meant to be undermined by them.

Why are so many people in dire straits? Mostly because other people have oppressed or subjugated them, made them into slaves, subjected them to involuntary servitude or serfdom or otherwise refused to respect their rights to their lives, liberty and property. In the modern welfare states which are mainly given philosophical support by reference to such extreme, emergency cases, the major culprit in producing poverty is, you guessed it, government's immense appetite for people's resources, taken from them by way of taxation and by the expenses they need to incur from having to deal with government regulations and other interferences in their lives they have no earned at all. And, of course, no matter how long the welfare states have existed (because, supposedly, they are necessary to give support to those in dire straits), the homeless and indigent and unemployed and all others who cannot fend for themselves keep not disappearing, not escaping their bad circumstances.

One reason, of course, is that the administrators of the welfare state are not at all shy about taking their cut from the taxes they collect before they let any of it go to those in whose name the taxes are levied. And as the economists who conceived of public choice theory have demonstrated, these administrators are more likely to devote the resources they take from citizens to advance some agenda of their own than they are to support those who need help. (Needless to say, one reason is that they probably haven't a clue as to what really would help, what program might actually eliminate poverty and indigence and such! So they just do what they know, which amounts to pursuing projects of their own.)

Now rules, principles and such are discovered to help understand the way things behave normally, or how we ought to carry on in normal circumstances. This is true in medicine, fitness, nutrition, driving, raising children, gardening and anywhere where people need some stable, dependable means for pursuing worthy goals. And obviously, for all rules there are some exceptions--extreme, yet unheard of or similar cases the rules do not cover. But this does not mean the rules are unsound, only that reality is not some geometrical system where no borderline cases, anomalies, or emergencies can be found. Yet, one does not act wisely by abandoning the rules so as to accommodate the rare exceptions, especially when these exceptions can best be understood as the regrettable consequences of violating the rules or principles in the first place.

This is why I am not very responsive when I am told that in some cases may someone's right to private property may need to be disregarded, even violated, so as to remedy matters. So what? It doesn't follow from this that well established, tried and true principles should be tossed into the dustbin of bad ideas, that s system governed by them should be abandoned. And since much of the time advocating tossing generally sound principles of liberty goes hand in hand with entrusting certain people with special powers over other people, I am naturally skeptical about what is being advocated. But, yes, now and then these principles may not hold--as when once in a rare while initiating a bit of physical assault against an innocent party can solve a problem (say, of someone who is being hysterical). We aren't dealing with principles of pure, formal logic, more likely with those of biology and psychology.

So I suggest not to get bent out of shape if someone finds some obscure counterexample to a swell principle of ethics, politics or law. As Aristotle is supposed to have put the point, one swallow does not a springtime make.