Wednesday, June 13, 2012
Constitutional Anomalies Tibor R. Machan As a lay student of the law, it has always struck me odd that in the U. S. system the First Amendment to the constitution exempts the ministry and journalism from government regulation while it appears to accept the regulation by all levels of government of numerous professions and enterprises. In very general terms, this clearly amounts to a kind of unjust discrimination. Why should people doing work at churches, ministries, newspapers, publishing houses, think tanks, universities and the like have their full--unalienable--right to liberty protected, including from governments across the board--federal, state, municipal, etc.--while other citizens who work in hospitals, factories, shops, corporate offices, etc., and so forth are subjected to onerous government regulations by some fellow citizens who have not gained the consent of these to be treated by them this way? What justifies this unequal protection of the law for millions of citizens who have done nothing illegal, who aren’t being punished or penalized for any malpractice? Think of the widely accepted prohibition of prior restraint where journalists or authors are concerned. Why is this upheld while no such prohibition is in place when it comes to auto mechanics, engineers, farmers and hundreds of other professionals in our supposedly free country? This is clearly colossal injustice. When I mention this concern to some of my mainstream colleagues in the law, their eyes tend to glaze over or roll, as if I were suggesting something truly absurd, even vicious. Yet all I am suggesting is that some citizens in this allegedly free country are treated without regard to what seems to be an elementary tenet of justice which is that without having done violence to anyone, none must be imposed upon, subjected to various burdens and expenses, ones that if they were to resist would land them in prison. Consider, also, the practice of professional licensing, something a few others, too, have found to be anomalous in a free society. The late Milton Friedman was one of those who made no secret of his opposition to it. Such licensing is surely reminiscent of certain aspects of the doctrine of feudalism, where some members of a royal court impose their judgment on perfectly innocent citizens--well, in that system they would have been subjects--simply because they believe their judgment is superior to that of the citizens or God gave them the authority to do so. Indeed, the entire institution of government regulation of anything is party to this anomaly. I want to cry out, “Who are these people anyway that they have the audacity to coerce others to be obeyed?” Aren’t we past the age of such rule of some by others in at least most Western societies? From the moral point of view, only if one has consented to be ruled, governed, manhandled, etc.--as one consents to one’s dentist, doctor, personal trainer, coach, or dance instructor--is it permissible for these others to order one about. And, of course, children may be ordered by their parents in light of their dependent status, their legal immaturity. But once one has grown up, reached the age of maturity, such authority by others is supposed to have vanished and only if they have given their permission to be regulated, regimented by someone else, does such treatment of them become acceptable. (Some exceptions exist with incapacitated persons.) Why is there no widespread outrage about these matters? Citizens are not supposed to be subjects and handled like serfs or involuntary servants? One would think in the supposed leader of the free world, the United States of America, more citizens would show their dismay about such matters.