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
America.

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
policy.

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.

Column on Corruption of American Politics

Why American Politics Has Gone Nuts

Tibor R. Machan

Have you noticed? There doesn?t appear to be any room for civil discourse
in politics these days. There is no issue about which the disputing
parties merely argue?the other side just has to be vicious, lying,
deceiving, cheating, wishing simply to hurt some people, moved by
mendacity while we are, of course, pure of heart. There isn?t a discussion
of the merits, the pros and the cons, only of who is evil, who is not.

Take the social security reform issue. Bush supporters see their
opponents as caring nothing about the upcoming plight of young people,
while his opponents must be uncaring toward old people. That seems to be
the essence of it now. Or the war in Iraq. It isn?t about whether the
policy is sound, but what Bush and Cheney must be gaining from it, or why
opponents must all be Saddamites, lovers of a tyrant.

Well, I have an idea why things have gotten to be so acrimonious in
American politics. It concerns the utter corruption of the nature of
American government.

When America?s founders embarked upon establishing the country, they laid
out a vision about its basic ideals and ideas. They so stated this in the
Declaration of Independence. The country was to be based on certain
fundamental principles about human nature, namely, that everyone has,
simply as a human being, certain unalienable rights?to life, liberty, and
the pursuit of happiness, among others?and that it is government?s
function to secure these rights. The rest is all details?important ones,
admittedly, but details nonetheless. It?s about how to do this basic task,
not about what is to be done. That latter issue had been largely
settled?government was supposed to deal with crime and foreign aggression,
little else. For this it has to have certain powers which were spelled out
in the Constitution but otherwise it was the people?you, I, and everyone
else in the country who was to be free to do what he or she chooses and
all our problems were to be solved by us, not the government, which had
its task set: keeping the peace.

Now, admittedly, this is to look at the matter a bit simply. But still
the picture is basically right. The Founders wanted a free country with a
government of strictly limited powers for the purpose of securing our
rights to be free to do what we needed to do in our highly diverse lives.

Already back then it was clear that America is a country with a highly
diverse citizenry. In 1798 a young man, J. M. Holley, wrote to his brother
that ?the diversity of dress, manners, & customs is greater in America,
than in any other country in the world, the reason of which, is very
obvious. It is considered as a country where people enjoy liberty and
independence; of course, persons from allmost every nation in the world,
come here as to an assylum from oppression; Each brings with him
prejudices in favor of the habits of his own countrymen....? (Quoted in
?Endpaper,? The New York Times Book Review, November 5, 1995, p. 46).

So what is national politics to be about in such a place? It is, to quote
that failed presidential candidate Michael Dukakis, to be ?about
competence,? that?s all. Who are to administer the system best? It wasn?t
to be about whether the country is to go Right or Left or Christian or
Muslim or socialist or capitalist. None of that was to be debated because
that debate was over once the fundamentals were laid out and country had
been founded.

Alas, this is now all gone. The party politics we have is not about
fielding candidates for a specific job but about whether America will have
this or that kind of government?big, small, democratic, welfare statist,
liberal, conservative or whatever.

It wasn?t supposed to be this way at all. But because now the dispute is
about what kind of country we should have, party politics has degenerated
into combat, with hostile camps peddling their respective conceptions of
society and dismissing opponents as enemies instead of treating them as
contestants. And that is not what American politics set out to be, not in
its essence.

Column on A Vision of Harmony

A Vision, Partly Fulfilled

Tibor R. Machan

When a kid I was deliberately taught to denigrate Jews. My father was a
virulent anti-Semite, my mother a milder one but both shared this
widespread bigotry in Hungary and, indeed, much of Europe. It took a while
for me to get enlightened, mainly, first, by noticing how ridiculous his
hostility to Jews made my father. For example, he beat me up for liking a
Jewish jazz pianist and he claimed Jewish bankers made sure Hollywood
movie stars looked Jewish so Jews get a good reputation. And then by
meeting Jewish school mates in my first American high school who turned
out to be pretty much like all other kids, a diverse lot, plain and
simple. So, I quickly turned against my parents on this one.

Later, when I came to the USA, I joined the Air Force in 1958 and roomed
with a black airman named Ivan, who turned out to be a really smart young
man and read even more books than I did. So that pretty much did it for
any temptation I might have had to join some other fellow airmen in their
racism.

Ever since I grew up this way I have had this deep-seated, somewhat
sentimental hope that all this racial antagonism would just disappear. In
grad school I even moderated a dispute between the UC Santa Barbara Black
Student Union and the SDS, during the late sixties, having gotten this
reputation of not sharing anyone?s prejudices too much.

When I lived in Alabama for ten years I had a chance, on and off, to
study local racism up close?once a hospital orderly was wheeling me to an
X-ray room and made a hasty racial slur against a clerk who checked me in
and when I called him on it he turned red faced, saying, ?Oh, I am sorry,
I am a racist.? Wow, that was a revealing confession.

A few days ago I completed a blues cruise, something I had wanted to take
part in for years but only now got to do, at last, and among the many
pleasures of it I had the wonderful experience of spending three days with
an incredibly racially, ethnically and otherwise?for example,
age-wise?mixed crowd. I have never seen black and white and men and women
and kids and grown-ups and the rest have so much peaceful, rollicking fun
together. There were umpteen mixed couples?African American men with
Caucasian women and vice versa, blonds with tall Indians from India,
Native American women with black men, and on and on, you name it and the
group included them. Dancing and jumping and swaying about, just having a
grand time of it, with blues bands that had white bassists and black
keyboarders and black and while male and female singers and so on and so
forth.

Both audience and performers showed not a moment?s notice of this
cultural diversity but I, of course, whose business is to think about such
stuff?maybe a bit obsessively, if you ask me?noticed only too well. And
not only did I notice but I was struck how nicely it flowed, how there was
nothing acrimonious, nothing suspicious, just all good will and the thrill
of the music.

No, I have no grand conclusions I can draw from all this?so I will not
contend that we need more blues venues so we will all get along with one
another or anything of that sort. It may even have been just this
particular group of blues enthusiasts. I wasn?t there to do a study of it
all. But I did experience a mellow joyfulness with how it all felt and
frankly yearned, also, for more of such genuine, unforced harmony among
human beings. It seemed just right and I wished for more of it, elsewhere.

At the various universities where I have taught there has been all this
fuss about diversity and, yet, most often one finds few mixed race
couples, not even too many young men and women of different races or
ethnic groups hanging out with each other. So it is tempting for me to
think, there really is no substitute for spontaneous harmony, for bringing
all these different people together not by corralling them by government
edict or even university policy but, well, because it just turns out that
way sometimes. Maybe if it just turned out that way more often and there
were no threats and fines and rebukes waiting to induce us to get along,
we might actually get along a lot more.

But maybe I am just hoping against hope. In any case, I am sure glad I
took part in an event that exhibited and illustrated that there really is
no inherent basis for a racial divide, none at all, not as people are in
their natural, unconstrained ways.

Column on Creeping Censorship

Creeping Censorship

Tibor R. Machan

In 1927 the US Senate nationalized the electromagnetic spectrum?then
called the ether?which are the airwaves where radio and TV signals travel.
They made this socialist move because of sheer impatience?the Navy asked
the Department of Justice to allocate property rights in the medium but
instead the Senate nationalized it.

Ever since then, the medium has been treated as belonging to us all,
regulated ?for us? by the feds. In fact, of course, the feds pretty much
regulated the medium for the few firms that had gotten a foothold in the
broadcast industry so that for decades thereafter ABC, CBS and NBC formed
an oligopoly and could nearly completely control entry into the field. For
a long while, in fact, if someone wanted to enter broadcasting, one would
be required to go to Washington, DC, and make a case to the FCC that no
other radio or television broadcaster would be ?harmed??lose listeners and
viewers?by this entry into the market. Can you imagine?if you wish to open
a restaurant, you need to demonstrate to a bunch of bureaucrats that other
restaurants will not lose customers? Insane, yet it was the law.

Worse than even this, the nationalization of the airwaves resulted in
government censorship, the complete circumvention of the First Amendment
of the US Constitution, on the grounds of, ?Well, this is public property,
after all, and thus it must be managed for the public by the government.?
Like the roads or anything else government has laid claim to and is thus
empowered to manage.

Accordingly, the principles of individual rights are voided, just as they
are when it comes to a public park or beach where local governments can
regulate who gets to be able to make use of it, when, and for what
purpose. All of this is directly in contradiction to the principles of a
genuine free society.

But until now the policy of government management of speech had been
confined to public properties, mainly?there are rules about advertising,
about having to place public service messages on the air and so forth, and
there is, famously, the ban on the use of indecent words and images. Now,
however, we learn that Senator Ted Stevens (R-Alaska), Representative Joe
Barton (R-Texas), and the new FCC Chair, Kevin Martin, all want to extend
censorship to cable TV (something one must pay for and does not use the
public airwaves) and even to satellite radio, according to the reports I
have been reading.

This is how it goes: First the principles of individual liberty are
abrogated in the name of having to manage the public sphere. That sphere,
of course, keeps getting bigger and bigger?all the public education
facilities, for example, are included, which means that one of the most
vital sources of intellectual debate and exploration operates under
government management, resulting, for example, in the travesty of official
political correctness policies across the country.

Next, once the idea of individual rights has been gradually eroded this
way, it no longer needs to be a public sphere for it to come under
government supervision. Thus we see the push for the ugly creeping
censorship that now faces us.

Sadly, the one organization that is alert to it, the American Civil
Liberties Union, is mounting a resistance with bad arguments?the ACLU is
talking about how ?indecency? cannot be defined, as if that were the main
reason against the proposed policy. Yet even if ?indecency? were perfectly
definable?just as if ?pornography? were?it would not authorize anyone at
all to ban it. Free men and women must self-regulate these matters.
Parents must deal with such hazards vis-à-vis their children, let alone
themselves, not a bunch of politicians and bureaucrats who have no basic
right to tell us what to watch, what to say, what to read or anything.

Let me tell you, this is really scary. And there isn?t even any allusion
to terrorism here, so the folks pushing for this censorship are evidently
very confident that they have worn us all down in our resistance to the
creeping expansion of government power. I wish we could prove them wrong.

Column on Why Liberty Doesn't Fare Well Enough

Why Freedom Doesn?t Sell Well

Tibor R. Machan

At a conference I attended with many friends of the free society hours on
end were spent on discussing why freedom doesn?t manage to catch on
better?why so many people refuse to embrace the idea of a fully free
society. Several famous luminaries, including the Nobel Laureate Milton
Friedman, lamented this fact. Dr. Friedman even suggested that his famous
book, Capitalism and Freedom, published back in 1962, was something of a
failure because it didn?t manage to move the country more rapidly toward
scaling down government and increasing individual liberty or expanding the
scope of the private sector. That is what winning the fight for liberty
would come to, in practical terms, even if in the intellectual realm the
fight has been largely successful (especially since the collapse of the
Soviet Union and the embarrassing records of such countries as North Korea
and Cuba, or even Germany and France, as far as enabling people to
flourish in their lives).

In one session there was a lot of consternation about making the case for
freedom more solid by showing more clearly how efficient freedom is, how
much more one can achieve of what one wants when one is free, compared to
when one is partially?and especially completely?regimented by governments.
And here is where the problem seems to lie, as far as I understand the
situation.

First of all, even if one were to deploy the most outstanding arguments
and demonstrations to show that freedom is superior to its more or less
Draconian alternatives, this will never guarantee victory. Even the famous
eternal vigilance, paid as its price, will not make freedom triumph if
people do not want it. And they may not want it for many reasons, even
when upon considering the case for it they cannot come up with sound
objections. Human beings do not always choose what is best for them?no one
can reasonably deny this when we look around and see so many making a mess
of their lives when they certainly do not have to do so. Given the
likelihood that many folks are not at their best, including when it comes
to thinking and acting with regard to their political situations, this
should not be terribly surprising. So, it is clear that even when the case
for liberty is a very solid one, that doesn?t mean everyone will make the
effort to help establish a regime of freedom instead of one of more or
less tyranny. There simply are too many people who want to take shortcuts,
refuse to take responsibility for their own conduct and believe they can
get away with this?and sadly often do?by calling upon the government to
force others to shoulder burdens they ought to assume.

Second, is the most widely circulated case for liberty as good as we can
get? That case is mostly put in terms of how effective a free society is,
how efficient its institutions are to get people what they want out of
life, especially prosperity. The problem is, however, that while this
point is well supported, it doesn?t manage to clinch it for liberty.

Liberty is, after all, a condition that people can use for good or for
ill. And even when they use it for good, if they cannot show that it is
for good they are using it, they will often he defenseless against critics
who chide them. Just consider how many people and organizations chide us
all for being prosperous, for striving to do well in life. Unless wanting
to do well in life is itself defended, shown to be a superior objective,
the fact the liberty enhances this goal just will not make it evident
enough that liberty is of great merit.

In the end, liberty needs a moral defense. It needs to be shown not only
that individual freedom makes it possible to attain what we want,
including our economic prosperity. First, it needs to be stressed that
individual human beings require a decisive role in their own lives,
whatever the results. Second, it is vital to demonstrate that the goal of
flourishing, the pursuit of one?s own happiness?including economic
success?is a good, worthy cause.

Yes, it is, but many, many people deny this and the mere efficiency of
liberty doesn?t counter their objections and doubts.

Column on Criticizing America

America Bashing Continues

Tibor R. Machan

No one is more prone to criticize the various levels and branches of the
US government than I am. My complaints, however, tend to focus on how our
political institutions have departed from the best ideas on which the
country was founded.

When you read most prominent mainstream newspapers and magazines?The New
York Times, The Washington Post, The New Republic, The New York Review of
Books, for example?these too often and sadly aim their criticism exactly
at those principles. It is when America is most American, one might say,
that they pick on her.

Take as an example James Traub?s February 13, 2005, column in The New
York Times Magazine, ?Freedom From Want.? It is a nasty little piece that
calls into question America?s generosity toward those around the globe who
are in dire straits. As the tag line quotes Traub?which pretty much
summarizes the piece??Our closest allies have put world poverty at the top
of their agenda. Why can't Americans do the same??

Well, for starters, our closest allies haven?t put world poverty at the
top of their agenda?it is their governments that have made the decision to
send some of the money they take from their citizens in taxes to help some
of the poor around the globe. This is a totally neglected distinction by
Traub and others: confusing what governments do in the way of forcibly
transferring wealth from their citizens to whoever government officials
think should get the wealth, and what the citizens of a country support
out of their own pockets voluntarily, without being threatened with jail
time if they refuse.

And here in fact Americans as a whole come off as the most generous
people on the face of the earth. I am not talking about the considerable
foreign aid the government of the US is sending abroad, secured through
the extortionist means of taxation (yes, Virginia, taxation is
extortion?you pay or you go to jail). I am talking about the fact, noted
poignantly in a letter to The New York Times Magazine by Carol Adelman,
Senior Fellow at the Hudson Institute, that while the US government sends
$16 billion?still the highest absolute amount?as aid, ?This number,
however, excludes American private giving of more than $43 billion, more
than double the government aid in 2003.?

What was Traub thinking? Why was he ignoring the facts that Adelman
brought to light? What kind of journalist is it who considers only what
the government coercively redistributes as ?giving,? while treating
genuine, voluntary contributions as non-existent?

I think I have a clue here: Someone who is eager to denigrate America and
Americans; someone who is eager to discredit a society in which freedom is
still more important than coercion; someone who would rather have us all
forced to behave as statists like us to behave rather than leave us govern
ourselves. For such a person the virtue of generosity is meaningless
unless it is extracted at the point of a gun, just the opposite of how
generosity ought to work among human beings.

Yes, while I am a fierce critic of US government policies, I confine my
criticism mainly to when that government undermines the principles of
individual rights on which it was founded?the unalienable rights to life,
liberty, and the pursuit of happiness, among others. But in continuing to
sustain a legal and cultural atmosphere of voluntarism, many Americans are
still doing what distinguishes them from the rest of the world, acting
freely to do the right thing.

Whenever you encounter critics of the American system, please look out:
If it is being put down for upholding the principles of individual rights,
the critics are actually being anti-American in the important sense of
that term, namely, turning against America?s central ideal. When the
critic employs the standard of liberty, then he or she is urging America
to be more like what it should be in the first place.

Column on Dissing Liberating Technologies

Machan is R. C. Hoiles Professor of business ethics at Chapman University,
Orange, CA. He is research fellow at the Hoover Institution and advises
Freedom Communications, Inc., on libertarian issues.

----- Original Message -----

Tuesday, March 29, 2005 8:32:23 AM
Tibor's Forum
From: Tibor R. Machan
Subject: Column on Dissing Liberating Technologies
To: Columns

Dissing Liberating Technology

Tibor R. Machan

The phenomenon is recurring, so you might think why bother with it again.
But as with many other matters, when they recur, it is good to pay them
renewed heed.

I noticed in a recent issue of Newsweek Magazine that some editor decided
to report on a bunch of people who had recently met at a conference and
demonstrated much trepidation about bloggers. In fact it was a group of
mainstream journalists showing their concern that they may be losing their
audience, now that blogging has become big throughout the world wide web.
But instead of saying outright, ?We are worried about our jobs,? the
journalists whose concerns were reported couched their beef in terms of
politics and social justice. The problem you see is, some of them cried:
most bloggers are white and male. So, clearly, the forum is biased in the
most horrible way: it discriminates against minorities. Or perhaps not.

I don?t know if this complaint has any merit to it?the piece in Newsweek
gave no solid evidence. Moreover it didn?t mention at all what
significance there could be to the absence of minorities from the blog
world. Maybe members of these minorities do not want to be on the Internet
much, just as I do not want to mess with digital cameras, even though it
is the rage (Circuit City people tell me they sell 90 digital to one old
fashioned camera).

More importantly, nothing in the Newsweek piece mentioned the incredibly
wide range of viewpoints in the blogging community (to which I, by the
way, do not belong other than to check some out when I am asked to). From
what I am aware of, there appears to be great diversity among bloggers of
just the kind that should matter to people, namely, diverse ethical,
religious, political, economic and related perspectives. Why care about
the rest? Why is it so important to track whether women, blacks, those of
Italian or Hungarian background choose to blog? What should matter, if
anything, is whether people with different things to say take advantage of
the medium.

All the fuss about blogging isn?t everything that?s being done to diss
liberating technology. The March 20th issue of The New York Times Magazine
published a missive, ?Bad Connections,? by Christine Rosen?a fellow at the
Ethics and Public Policy Center in Washington?complaining that cell phones
and such ?have put us out of touch with the manners and mores of public
life.? All in all, this lament, coming it as it must from someone who
finds individualism naughty and collectivism nice, is in line with the
know-nothing tradition of anti-technology. Ms. Rosen in fact begins her
belly-aching by recalling the invention of the mirror in the 16th Century
and noting how it has spawned egotism and vanity (forgetting that it also
helps dentistry, as an example, as well as safe driving).

And that is just the point: most inventions can be used well or badly.
There is no guarantee that no one will abuse something that was invented
to be helpful. In the case of cell phones and computers there are
innumerable ways they can be made to serve perfectly good ends as well as
lousy ones?just consider how emailing and instant messaging can keep
families in far better touch than having to write letters and wait for the
mail to deliver them and how smut has spread by it all, as well. I noticed
some of this with my own children who were quite adapt, early in their
lives, at typing and even spelling, not to mention the right use of words,
because they began using email and IM when quite young.

Ms. Rosen, of course?coming as she does from a mainstream ethics center
that is guided by the altruism and self-denial ethics that academic ethics
has been promulgating for centuries?doesn?t like that being called on
one?s mobile phone in public may make a person feel a bit self-important.
My-my, that is just intolerable. (Never mind that much of the
psychological and pedagogical profession is concerned with instilling
greater self-esteem in young people, encouraging them all to be feeling
better about themselves.)

I say to technological innovation, bring it all on! We will do fine
sorting out the good and bad uses of it without the churlishness of the
likes of the people Newsweek chose to report on or Christine Rosen?s nay
saying. Just because the manners and mores of olden times may become
somewhat moot, it doesn?t follow that new manners and mores of merit will
not be forthcoming.

Column on being robbed

So I was Robbed

Tibor R. Machan

The other week I went to San Francisco for a conference, parked in a
?Public Parking? place, on a busy corner (2nd and Howard), and my car was
broken into and a bunch of stuff stolen. And I am partly to blame.

Yes, I wasn?t thinking clearly. Living as I do in a neighborhood where
homes and cars can be left unlocked, I got spoiled. And all I had to do is
stop to think a minute. Once before, in the 70s, the same thing happened
to me in the same beautiful City by the Bay?then someone broke into my old
Volvo and stole a nice leather coat I bought a few months before in
Berlin. And when I lived in Palo Alto for a year to work at Stanford, I
experienced my first home burglary.

Although this is no evidence of any trend?other than perhaps of my
mistreatment by Bay Area thugs?it should have been on my mind as I locked
up my car and walked away from it. So the rest of my Easter weekend was
spent on damage control since my lap top, which was part of the loot,
contained information that could be used to some hacker to get into my
various accounts and maybe purchase things (although these are mostly
online book shops, so I doubt they will be of great interest to someone
breaking into cars).

It goes to show you that while, of course, it is the perpetrator who did
the worst thing here, the victim, too, could have acted more wisely,
prudently, and therefore is guilty of misconduct. That lesson isn?t often
heeded. I didn?t heed it much on this occasion but I promise to be better
henceforth. In many instances those who should know better and act
accordingly miss out by not realizing there are hazards all around us,
some posed by nature, some by others. The natural hazards are, of course,
more easily anticipated?California often shakes, so one can do better by
preparing for a quake here and there; Florida is hit by hurricanes often
enough so one should probably make sure one?s home is sturdy; and the
Midwest has its floods, the north its deep freezes and so forth.

But there are also too many other people who are hell bent on making life
miserable for the rest. From simple vandalism to brutal murders and
terrorism, these folks are vicious, mean people who will not be
discouraged by finely fashioned welfare programs or by the sentiments of
social workers or anti-globalists. No, they have gone corrupt. And they
will lash out and anyone can become their victim.

Yet, the victims, too, are doing something less than exemplary by not
paying attention to such people, by downplaying the reality of their
existence, by forgetting that they are out there, especially in certain
regions of the neighborhood or globe, praying on whoever is distracted,
whoever forgets about them, whoever thinks they will just go away some day
because of all the good will some people waste on them.

I am writing all of this in part so as to fix the matter in my own mind,
good and hard, not to continue with my own complacency. Sure, I had an
alarm, sure it was broad daylight, and sure in was in the middle of a
mostly civilized city on a sunny weekend day. But not only is it common
sense to take extra measures in any big city but I had personally been put
on alert. Yet I chose to be out to lunch, something I detest when I let
myself do it.

As I say, I promise. In the meantime I will continue with my damage
control, get things fixed, replace the losses, see if my insurance covers
any of it, and become better about coping with the vile ones of the world.

Oh, yes, I also went to the police to report this and the cooperation was
fantastic?well, not really. The officers?half a dozen of them sitting
there, chatting and joking and barely paying heed when I made my
report?pretty much regarded this event as something that?s solely my
problem, not theirs. I don?t know for sure, but I suspect they were more
interested in victimless crimes?drug offenses, prostitution, whatever?than
in cruising about the avenues of San Francisco, being alert so as to stand
ready to secure our rights.

All the more reason to be more alert oneself.

Column on Terri Schiavo's Sad Saga

Terri Schiavo?s Sad Saga

Tibor R. Machan

By the time this is being read, Terri Schiavo may have died. But she is
virtually dead now, or so it has been reported by several doctors who
should know. The situation isn?t so unfamiliar to many of us who have had
relatives who have become nearly dead or brain dead and whose life amounts
to little more than a forcibly induced condition.

I am now old enough to have made my will instructing that if I ever reach
such a state, I do not want anyone to prolong my mere survival. Why?

Well, to begin with, I do not believe in imposing the cost of any such
procedure on my relatives, let alone on total strangers. There is
certainly no moral--and there should be no legal?duty for the latter to
provide me with life supports, period, however much the ?laws? of my
community disagrees with me on this. The law is just wrong when it coerces
others to serve someone with such?or indeed any other?support. How dare
impose such burdens on people who didn?t sign up for the task of their own
free will? That is grossly unjust.

In the Terri Schiavo case the matter is clearly complicated by the fact
that hardly anyone dares bring up the issue of who is supposed to pay for
all this support. But it is plain that if the parents want to do so, let
them?her husband should relinquish his role as next of kin since no one is
taking it seriously anyway. His report of Terri?s own choice to let her
die if the current situation is to arise is apparently treated as
irrelevant for many who are chiming in on the case, even though by all
rights it is he, for better or for worse, who should have that authority.
Well, if he is not allowed to exercise this authority, he should just let
the parents take over the care of poor Terri. (I am not privy to all the
legal complications but that is what seems to me the decent way to handle
it. Certainly if I were in Terri?s position and someone, say a devoted
student of my philosophical works, wanted to keep me going, I would not
expect my children to refuse, although they should not be held responsible
for an
y of the burdens this would create.)

I believe much of the trepidation about Terri?s fate has to do with this
misguided notion that society?that is to say, other persons?must finance
anyone?s life support system. Unless she got sufficient medical insurance
to pay for her continued support, it isn?t justified that she be gaining
the support from people who do not want to provide it. It may appear to be
heartless?which, by the way, it isn?t?but no one owes another to serve
them unless there is an explicit or at least clearly implicit agreement to
that effect in force.

No doubt there are people all around who disagree, who believe that other
people?s need counts as a justification for conscripting unwilling
strangers to provide help. Well, that is to endorse slavery, or at least
involuntary servitude. Slaves, too, were thought to owe their lives and
labors to their masters, not to themselves. Conscripts, too, are robbed of
their will to live as they choose usually because the people who control
the government believe they are entitled to make them serve a goal they
believe is very important.

Free men and women, however, are not owned by anyone other than
themselves. Nor is their labor, nor their resources, available, morally
speaking, to be seized by others, even those who are in dire straits. That
is the price of liberty?not being able to take from others what others
refuse to give of their own free will.

Alas, neither conservatives nor liberals in the USA care much about these
elementary matters today. Never mind that the fundamental political
document of this country, the Declaration of Independence, spelled out the
idea clearly and unambiguously?namely, that each and every human being has
an unalienable right to his or her life and liberty and pursuit of
happiness (among other rights). This means that others may not take their
lives, infringe on their liberties unless permission from them has been
obtained.

However much even millions may desire that Terri Schiavo be provided with
more time, so that some miracle might make her recover, it should not
occur at the expense of the lives and liberties of people who haven?t
volunteered for this task.

Correction

Please change Anthony Scalia to
Antonin Scalia in my column on The Forgotten Ninth Amendment

Column on Scalia and the Ninth Amendment

The Forgotten Ninth Amendment

Tibor R. Machan

In a recent talk US Supreme Court Justice Anthony Scalia criticized his
fellow justices for making law, a role he believes belongs to the
legislature or the people themselves. Justices, he argued, are there to
interpret the US Constitution and this they must do by reading it as it
was intended back when it was framed and when it was later amended. In his
dissent Scalia wrote,

The court says in so many words that what our people's laws say about the
issue does not, in the last analysis, matter: 'In the end our own judgment
will be brought to bear on the question of the acceptability of the death
penalty....? The court thus proclaims itself sole arbiter of our nation's
moral standards.

The charge Scalia has leveled at his colleagues?five of them, the
majority who ruled for abolition of the death penalty for juveniles and
the mentally impaired?is the substance of the general criticism usually
labeled ?judicial activism.? This view decries it whenever the court rules
as if there existed rights which are not explicitly mentioned or
enumerated within the US Constitution. One of the most famous of these
unenumerated rights is the right to privacy and the majority of the court
has ruled in several recent cases that various state laws violate this
right and are, therefore, unconstitutional, invalid laws.

In his recent public talk Justice Scalia argued that the idea of a living
constitution is essentially wrongheaded because it leaves the country
without a firm basis of law by which it can be governed. Instead of a
stable set of constitutional principles, justices have come to make laws
based on their ?personal policy preferences,? thus undermining the classic
doctrine of the rule of law (as opposed to that of arbitrary governors).

The case Scalia makes has a good deal going for it because it is indeed
part of the theory of politics in the USA that the role justices play does
not include making laws, only interpreting the Constitution when some
legislation is challenged through the courts (and reaches the US Supreme
Court). The living constitution idea is, indeed, destructive of the rule
of law and of democracy itself because it encourages arbitrariness, the
departure from governance by law toward governance according to the
justices? own convictions.

Yet, there is a problem here because Justice Scalia ignores the Ninth
Amendment to the US Constitution, the one that states unequivocally that
aside from rights enumerated in that document, the people have others, as
well. The Ninth states that ?The enumeration in this Constitution, of
certain rights, shall not be construed to deny or disparage others
retained by the people.? So, while this does not sanction any kind of
loose, ?living,? constitutional doctrine, it does make clear reference to
rights that aren?t explicitly listed in the US Constitution, rights that
we nonetheless possess.

What would be those rights? Pretty much to do everything and anything the
government isn?t authorized to prohibit. Indeed, the point of the US
Constitution does not appear to be to spell out our rights in particular,
other than to spell out for emphasis of some of the most crucial ones. It
is, rather, to state what the strictly limited powers of government are.

As to whether this authorizes the US Supreme Court to strike down state
and federal legislation that permits the execution of juveniles or the
mentally ill, the situation is complicated. It is arguable, however, that
one role of the court is to spell out the logical meanings of terms within
the constitution for our own times, meanings that have clearly undergone
some rational evolution.

Just as in physics the term ?atom? no longer logically means exactly what
it meant 300 years ago, so in political theory and jurisprudence the term
?human being? could reasonably require some updating. If it is found, for
example, that children and the mentally disabled lack the full capacity of
adult humans, this could reasonably require interpreting provisions of the
US Constitution and other laws accordingly.

And that is just what seems to lie behind recent rulings: for example,
the young, who in our day aren?t permitted to enter into contracts, to
marry on their own, or to vote, would probably not warrant being judged
guilty of crimes exactly as they were when certain nuances in
understanding what human beings are had been overlooked or were not
clearly understood.

Against Scalia it can be argued that although the idea of a living
constitution is dangerous, so is the idea of a frozen one. Reasonable
development in the meaning of the terms in the fundamental laws of the
society is to be expected and should not be thwarted in the US Supreme
Court?s deliberations and rulings. Those who protest that this is
anti-democratic need to consider that the Founders were not pure democrats
by a long shot?just consider the electoral college, which is blatantly
anti-democratic.

Column on thanking a bad man

Appreciation for A Bad Man?s Words

Tibor R. Machan

This is something I would never have thought I?d write?words of
appreciation for the last words of a vicious murderer. Yet I believe they
are due, even though the man who spoke those words is now dead, executed
in Texas for murdering a nurse in the 1980s for a payment of $1500.00.

It is reported that George Anderson Hopper, who received a lethal
injection for the murder of Rozanne Gailiunas in 1983, was asked by the
warden if he had anything to say before he was to die and here is what
this man said:

I have made a lot of mistakes in my life. The things I did changed so many
lives. I can?t take it back. It was an atrocity. I am sorry. I beg your
forgiveness. I know I am not worthy of it.? And he is reported to have
uttered this ?with his voice breaking with emotion.?

Now this is today a rather remarkable event, with someone who has done
something morally terrible accepting his guilt and making an effort to
seek forgiveness for it. It shows, for once rather clearly, that some
people accept responsibility for their evil deeds instead of merely
putting up all kinds of excuses and ?explanations? for how they behaved,
as if it had nothing to do with them at all.

In our era it is fashionable to look upon human behavior as but the same
kind of event as the rain fall, an earthquake, a mosquito bite, or a
tsunami?an impersonal bit of motion in the course of the unfolding of the
multitude of impersonal motions throughout the universe. This idea, that
people are just bits and pieces of matter moving about without any hand in
their own activities, is unfortunately encouraged by a pretty dubious
report of what scientists, especially physicists, and by some evolutionary
biologists, have discovered. By this account of how the world is,
everything is fully determined to go the way it must. That doesn?t mean we
know how it will all turn out, although if we knew all the laws of nature
and had a full list of the stuff populating the world, that, too, could be
done. We don?t so, the story goes, there are going to be surprises?that is
how Stephen Hawking, the famous Cambridge astrophysicist, accounts for our
alleged illusion of free will.

But this story is more metaphysics?and a bad kind to boot?than science.
It simply assumes that the universe has no room for free will. It doesn?t
show this at all. And the evidence is clear that people cause much of what
they do, including the scientific work that supposedly gives them this
story, not to mention all the artistic, technological and ordinary, day to
day, production and creativity we witness from them, for good or ill. The
story so many people in the academy tell?that we just are moved objects
and cannot ourselves move anything of our own, that we lack the capacity
to initiate any of our behavior so cannot reasonably be held responsible
for it?is an extrapolation and a hasty one at that.
Instead, a much more credible, though a bit more complicated, story is
that in the universe there are many kinds of beings, and what they can and
cannot do depends on their nature. In the case of people, then, it is the
fact that we have minds that we can activate or leave dormant that
determines how much of what happens with us will turn out. If we make good
use of our minds, if we think things through, if we pay attention and
follow through with what we learn, including in the area of human
relations, things will go well, but if we are sloppy, lazy, thoughtless
and then try to act accordingly, things will go wrong and sometimes we
will end up perpetrating atrocious things, like Mr. Hopper did when he
took money to fill Ms. Gailliunas.

It is about time that some of us fess up to our complicit in the bad
things we produce, whether they be Draconian misdeeds or minor ones, like
failing to keep an appointment or turning in a class assignment on time.
All this explaining away how people act can only spell self-delusion. And
it perpetuates the myth that just fixing a gene here, or a social
circumstance there, or simply throwing a bit of money at a problem, will
make a huge difference and the world will function smoothly in a jiffy
thereafter. That, in turn, promotes the idea of the meddling government as
the God that will fix it all?with the paradoxical idea that people in
government do have the power of free will but no one else does.

Column on not coercing generosity

Coerced Altruism?s Ruinous Popularity

Tibor R. Machan

You might say I wrote the book on generosity?one of mine had this as its
topic and its title, as well, back in 1998. So when in response to a
recent column, in which I reaffirmed the propriety of freely chosen as
against coerced generosity, I received dozens of really nasty letters,
claiming that I was advocating cruelty and meanness, I had to shake my
head in dismay. Will they never get it?

A bill like the Americans with Disabilities Act, long with many others
that make it a crime not to help those who are in more or less serious
need, is clearly in violation of an elementary principle of morality, one
that is captured in a slogan from the famous German philosopher, Immanuel
Kant. ?Ought? implies ?can,? said Kant?who is otherwise not my favorite
(because he continued to support a very destructive idea, namely, dualism,
the notion that reality is divided into two incompatible, the factual and
the mental, realms). In this, however, he pointed his finger at something
we all can easily accept, if we but think about it a little: If one is to
do the right thing, it must be done freely, un-coerced, voluntarily.
Otherwise we are simply behaving as we are forced to by others, something
for which no moral credit could accrue to us, something that does not make
us decent people and does not make the action morally worthwhile.

In a truly free human community, what measure of generosity, charity,
philanthropy is to be forthcoming from people may not be forced upon them
and the beneficiaries may not use the force of laws and regulations to
elicit what they need and want from others. This is true in the case of
all so called civil rights laws, too, be it for the benefit of members of
any type of minorities, be they of some race, gender or disabled group.

For instance, when immigrants come to a free society, they, unlike those
who come to certain states of the United States of America, are not
entitled to be provided by laws and regulation with special language
assistance in their schools or places of work. They need to do the
catch-up work with freely given support, not support gotten at the point
of the gun. And that goes, also, for all disabled persons, however much
this may seem to them unfair or even unjust. It is far more unjust to
initiate force against people so as to help one?a point that should be
easy to appreciate in simple personal relations in which it is plain
common sense that morally no one may coerce another to be helpful, even in
cases of dire straits.

In the community in which I live a disaster struck a merciless blow upon
a family, killing a teen and destroying their home recently in a wild yet
well populated canyon during heavy rains. In at least partial response,
thousands from the neighborhood, including about 75 business
establishments from near and far, gathered for a commemorative feast and
raised quite a bit of support for the survivors of the disaster,
voluntarily, with no one rounding them up to provide the support. This is
the way help is secured in a civilized, decent, and free society, not via
threats to put people in jail or of fining them if they are not willing to
give of their own free will. That is a central difference between how free
men and women live in one another?s company and how barbarians do, who
extract what they need and want by actual or threatened brute force.

Yet, in response to my recalling what would seem an obvious
point?especially in a country that put on record (and the government of
which makes a big deal of advocating for all) the conditions by which free
people live together, as wall is in the spirit of George Orwell?s
admonition that "Sometimes the first duty of intelligent men is the
restatement of the obvious" (http://oaks.nvg.org/wm4ra8.html)?I got an
inordinate amount of flack. No, I am not complaining?I merely lament this
fact and make note of it as a disturbing sign of how fragile the idea of
liberty is in the very country in which the Founders considered each
citizen as having the unalienable right to acting freely and one that had
a tragic Civil War fought in large measure so as to abolish slavery,
involuntary servitude.

Column on Evil and The Welfare State

Welfare Statism and Evil

Tibor R. Machan

For a long time I have been reading works in political and social theory
and most of the well published ones?by major commercial and university
presses?agree with this passage that is quoted in The Status Syndrome
(2005), a recent book advocating various government measures to save us
from anything and everything that ails us:

The success of an economy and of a society cannot be separated from the
lives that members of the society are able to lead?. We not only value
living well and satisfactorily, but also appreciate having control over
our own lives.

The author of the passage is Amartya Sen, and the statement comes from
his own very prominent book, Development as Freedom (1999). Both he and
the author of the book to which the passage serves as the epigram believe
that the problems of most societies need more vigorous government
involvement and that those who champion the unfettered and admittedly
non-utopian free society are very mistaken.

Given that for innumerable decades the major Western powers have been
vigorous welfare states and that the claim that free markets have
reigned?say under Margaret Thatcher in England and Ronald Reagan in the
USA?is an out and out lie, it is a valid question to pose why all this
transfer of wealth to the people organized by governments simply hasn?t
done the job of fixing things for those at the lower rungs of the economic
system. There are probably several reasons but a few stand out.

Most generally, the ?lives that members of the society are able to lead?
just isn?t available for even the most energetic welfare statist to
guarantee. There is always something that undermines the grand project of
remedying everything via coercive means, including (a) bureaucratic
rip-offs, (b) lack of the requisite knowledge of what would actually help
people most, and, yes, (c) the bad choices of the very people who are to
be helped out.

There has enough been said about (a) and (b) by well known social
theorists to fill a library but (c) is something else. In our era it is
simply too surly to suggest that many, many people are personally
responsible for much of what happens to them in life. No, it?s got to be
something else, always. (This is also why many intellectuals cannot let
go of the idea that terrorists may really be vicious people, not victims
of, say, globalization or American imperialism.)

But there is a bit of good news now, which may finally enlighten our
decently motivated statists and their academic defenders, people who think
every problem has a solution if only you throw enough money at it and use
sufficient force to get it fixed. Professor Michael Stone of Columbia
University, a psychiatrists to boot, has chimed in with a surprising
(though largely old fashioned) piece of news. As reported in the English
magazine THE WEEK, ?He found that while some [of 500 serial killers in
both the US and Britain he studied] suffered from mental illness or had
been damaged by some event in their history, others were perfectly sane.
They simply enjoyed killing.? As the professor put it, ?Such people make a
rational choice to commit terrible crimes over and over again. They are
evil and we should be able to say that formally.?

Which pretty much opens the door that other people may not be quite so
evil as serial killers but could perpetrate bits and pieces of evil
themselves, including refusing to do much good for their own lives. So
when Sen states that ?we [i.e., all of us] appreciate having control over
our own lives,? he is wrong?some people simply do not appreciate this and
choose, instead, of float about, aimlessly, no matter how much effort is
put into helping them out of their misery.

Of course, most of us who pay any attention to the world, beginning with
our family and neighbors and friends, know this well enough and have
always. There are ne?er-do-wells about everywhere, people who are lazy,
irresponsible, and hopelessly incorrigible on that score, apart from the
really vile ones the professor was studying. And in large societies there
are very many of them and they will always be there. With the welfare
statists? refusal to acknowledge their existence, however, the fruitless
effort to fix these people?s lives by sacrificing the lives and labors of
others for their sake continues, despite the evidence that they will not
be helped.

Perhaps these people need to learn a thing or two from professor Stone
and start admitting that some people ask for their own misery and public
policy and political theory need to take this into account.

Column on thanking a bad man (sans typo)

Appreciation for A Bad Man?s Words

Tibor R. Machan

This is something I would never have thought I?d write?words of
appreciation for the last words of a vicious murderer. Yet I believe they
are due, even though the man who spoke those words is now dead, executed
in Texas for murdering a nurse in the 1980s for a payment of $1500.00.

It is reported that George Anderson Hopper, who received a lethal
injection for the murder of Rozanne Gailiunas in 1983, was asked by the
warden if he had anything to say before he was to die and here is what
this man said:

I have made a lot of mistakes in my life. The things I did changed so many
lives. I can?t take it back. It was an atrocity. I am sorry. I beg your
forgiveness. I know I am not worthy of it.? And he is reported to have
uttered this ?with his voice breaking with emotion.?

Now this is today a rather remarkable event, with someone who has done
something morally terrible accepting his guilt and making an effort to
seek forgiveness for it. It shows, for once rather clearly, that some
people accept responsibility for their evil deeds instead of merely
putting up all kinds of excuses and ?explanations? for how they behaved,
as if it had nothing to do with them at all.

In our era it is fashionable to look upon human behavior as but the same
kind of event as the rain fall, an earthquake, a mosquito bite, or a
tsunami?an impersonal bit of motion in the course of the unfolding of the
multitude of impersonal motions throughout the universe. This idea, that
people are just bits and pieces of matter moving about without any hand in
their own activities, is unfortunately encouraged by a pretty dubious
report of what scientists, especially physicists, and by some evolutionary
biologists, have discovered. By this account of how the world is,
everything is fully determined to go the way it must. That doesn?t mean we
know how it will all turn out, although if we knew all the laws of nature
and had a full list of the stuff populating the world, that, too, could be
done. We don?t so, the story goes, there are going to be surprises?that is
how Stephen Hawking, the famous Cambridge astrophysicist, accounts for our
alleged illusion of free will.

But this story is more metaphysics?and a bad kind to boot?than science.
It simply assumes that the universe has no room for free will. It doesn?t
show this at all. And the evidence is clear that people cause much of what
they do, including the scientific work that supposedly gives them this
story, not to mention all the artistic, technological and ordinary, day to
day, production and creativity we witness from them, for good or ill. The
story so many people in the academy tell?that we just are moved objects
and cannot ourselves move anything of our own, that we lack the capacity
to initiate any of our behavior so cannot reasonably be held responsible
for it?is an extrapolation and a hasty one at that.
Instead, a much more credible, though a bit more complicated, story is
that in the universe there are many kinds of beings, and what they can and
cannot do depends on their nature. In the case of people, then, it is the
fact that we have minds that we can activate or leave dormant that
determines how much of what happens with us will turn out. If we make good
use of our minds, if we think things through, if we pay attention and
follow through with what we learn, including in the area of human
relations, things will go well, but if we are sloppy, lazy, thoughtless
and then try to act accordingly, things will go wrong and sometimes we
will end up perpetrating atrocious things, like Mr. Hopper did when he
took money to kill Ms. Gailliunas.

It is about time that some of us fess up to our complicit in the bad
things we produce, whether they be Draconian misdeeds or minor ones, like
failing to keep an appointment or to turn in a class assignment on time.
All this explaining away how people act can only spell self-delusion. And
it perpetuates the myth that just fixing a gene here, or a social
circumstance there, or simply throwing a bit of money at a problem, will
make a huge difference and the world will function smoothly in a jiffy
thereafter. That, in turn, promotes the idea of the meddling government as
the God that will fix it all?with the paradoxical idea that people in
government do have the power of free will but no one else does.

Column on Ad Hominem attacks on freedom

When Elites Use Ad Hominems

Tibor R. Machan

A book came to my attention with a promising title, so I bought and began
to read it. The author is William M. Sullivan, a senior scholar at the
Carnegie Foundation for the Advancement of Teaching and the book is Work
and Integrity, The Crisis and Promise of Professionalism in America (2005).

With such a title I was hoping for, though admittedly not quite
expecting, a non-politicized discussion of the ethics of work and
professionalism. Alas, there is some of this in the book, but much of it
is also devoted to putting down anyone who thinks these matters can be
handled without involving a massive government?especially, licensing and
regulatory?bureaucracy.

OK, but this would not be so bad if our distinguished author went about
arguing for his support of these measures, ones that have been on the
books for ages and yet have spawned a situation that has prompted the
author himself to lament endlessly the unprofessional conduct of
professionals. Instead, when it comes to the issue of whether the private
sector could deal with professional credentialing, we get no argument at
all, only name calling. Mr. Sullivan does not hesitate at all to deploy
one of the least civil of rhetorical devices in discussing issues, namely,
ad hominems.

It may be recalled by some that the Nobel Laureate economist Milton
Friedman wrote a book, Capitalism and Freedom (1962) in which he
argues?yes, he actually argues?against professional licensing, making the
case that a free society does not deserve to be burdened by such demeaning
public measures, ones that treat professionals as requiring the
supervision of a bunch of force-wielding bureaucrats. A free society can
have its own watchdog agencies, ones, however, that do not have the status
of the monarch but simply one among many service agencies like the Good
Housekeeping Seal of Approval folks.

So what does Mr. Sullivan offer in rebuttal to this line of argument
Friedman goes to great pains to develop? Nothing, not unless you consider
calling Milton Friedman a ?market fundamentalist,? someone among ?those
who allow their enthusiasm for the ideals of markets performance to
develop into fanaticism,? an argument. Sullivan says that Friedman is
wrong because he fails to make any room for non-market institutions doing
something to enhance professionalism, whereas, of course, Friedman does
nothing of the sort. He simply wants to exclude coercive measures, which
in Sullivan?s view makes him a fanatic.

Now being a fanatic about liberty hasn?t ever seemed to me such a
dangerous thing. As when Barry Goldwater said, ?extremism in the defense
of liberty is no vice,? so neither is fanaticism in defense of it so
awful. Abolitionist were fanatics, as were anti-Vietnam War demonstrators,
and civil rights activists?meaning they were really, seriously opposed to
what they deemed to be unjust. Calling them ?civil rights fundamentalists?
wouldn?t suffice to take issue with their position. Arguments, however,
might?as we have seen when prominent law professors have taken issue with
those activists.

But cheer up. When prominent scholars from very prestigious organizations
lash out at various ideas with venom, you know those ideas are making an
impact. And they should. Free market fundamentalism, like Criminal justice
fundamentalism (a la the ACLU) or human rights fundamentalism (as per
Amnesty International) can indeed be a wonderful thing and attacking it in
such uncivil ways may give it something of a boost.

Licensing of professionals is, in fact, a form of prior restraint and is
not tolerable where human beings are supposed to be left free until they
have been proven guilty of a crime. People doing work in the various
professions need to be credentialed without violating this ideal and a
little fanaticism in support of that will do us a lot of good.

Maybe we ought to thank the likes of Mr. Sullivan for showing how
impoverished have become defenders of all the myriad government measures
that treat people as if they were beholden to the state, not to their own
conscience and the expectations of their free customers and clients.

Column on ADA "abuse"

ADA is Easily Abused

Tibor R. Machan

Some 18 years ago the Feds made a law that compels all kinds of business
establishments to accommodate disabled people. This law is often abused,
of course, as, for example, when people want jobs despite lacking
elementary skills to do them or when they demand that restaurants make
accommodation for their disability even if they are able to cope with just
a little extra effort.

But it is not abuse that?s the problem. It is the idea that businesses
are to be made the involuntary servants of people whose disabilities they
do not consider profitable or otherwise worthy to accommodate. Yes, this
may sound harsh but it is far harsher to coerce these establishments to
make accommodations. They are not there for the sake of these customers
but for making a living for their owners and investors. And there is no
moral justification in the slightest for being made legally beholden to
anyone, however unfortunate the person may be.

To some extent nearly everyone has special needs?which is why eye
glasses, canes, hearing aids, and the like are wonderful inventions. Yet,
despite their great value to those who need them, no one has the moral?and
should have the legal?authority to order anyone to produce these
implements. It is up to the inventors to come forth with their
contributions, which then can be used to great benefit by millions of
people.

But the US federal government, with the typical will to power attitude
when it comes to the bulk of the things they now embark upon, believe they
may coerce restaurants, amusement parks and other establishment to render
it simple for disabled people to make use of their facilities. How come?
If no one may force us to invent helpful implements for the disabled, why
may anyone force us to provide them with extra help?

Mind you, it is often decent to make provisions for those who need some
extra assistance. Generosity will often motivate vendors to do just that,
and this is praiseworthy. It is, however, something they themselves must
choose to provide, and to be coerced into doing it is far worse, morally,
than not extending the generous gesture. Not only that?there can be other
perfectly legitimate goals that could well be more important to the
vendors than to help the disabled.

Disability has a devastating impact on many people but, as already noted,
it is part of life. We all have a bit of it. None of us, however, is
morally entitled or authorized to compel others to help us because of our
disability. Indeed, if this were a right thing to do, there certainly are
millions of people around the globe who could just enslave us to serve
them, to provide involuntary servitude for their benefit.

A particularly egregious case of someone with disability harassing
various businesses has finally come under legal scrutiny in California. As
reported at ABAJournal.com, on February 18, 2005, ?A federal judge last
week accused a San Francisco law firm of ?plainly unethical? conduct in
its representation of a wheelchair-bound man who has filed some 400
lawsuits against California businesses since 1998 for alleged violations
of the Americans With Disabilities Act.? The man is 34 year old Jarek
Molski who in 1988 had a motorcycle ?accident??of which I would like to
know more, since that doesn?t tell us who was at fault?and has been going
about the state harassing various establishments if they do not
accommodate him. He has been especially vigilant in suing various small
wineries in the San Louis Obispo area.

The judge who finally put a stop to this called Moski ?a vexatious
litigant,? one who perpetrates a "scheme of systematic extortion designed
to harass and intimidate business owners into agreeing to cash
settlements." The law group going to bat for this man, The Frankovich
Group of San Francisco, is protesting the judge?s ruling, as is to be
expected, and who knows how the case will end up.

But here is the lesson: Once a bad law gets on the books, there is
probably no way to nail anyone for abusing it since one can only abuse
what is generally good. The ADA law is generally bad, not because disabled
people do not often deserve a break?although, again, this may not include
people who go out of their way to engage in risky conduct or, especially,
those who act recklessly. It is bad because it is coercive, conscripting
vendors to benefit the disabled, something no one deserves, not even for
the sake of providing such help.

Column on Million Dollar Baby

Ethics vs. Politics in Million Dollar Baby

Tibor R. Machan

Who has a right to one?s life? The individual whose life it is, that?s
who. And what does that entail? That it is up to that individual whether
to strive to continue to be alive, to thrive, or to discontinue living, to
stop thriving and discontinue living.

But having a natural (and justly protected legal) right to end one?s life
doesn?t make the act itself morally right. One has rights to do what is
wrong?just think of the right to freedom of speech, how often when it is
legitimately exercised what comes out is wrong! The right to be wrong is,
however, a right, nonetheless.

And it is also true that sometimes ending one?s life can be the right
thing to do, although there is probably no general account of when that
would be. Living in constant, unrelenting extreme pain could qualify?no
one is obligated to carry on in such a state unless there is a decent
prospect of recovery. One may also risk one?s life for various purposes
that merit such a risk, such as protecting the freedom of one?s country or
the safety of one?s loved ones or, for some folks, even going mountain
climbing.

In the Clint Eastwood directed movie, Million Dollar Baby, this issue
comes up quietly, as it did in Whose Life is it Anyway, which starred
Richard Dreyfuss some years ago and explored the topic head on. Whether
the answer reached is the right one is, of course, one of the vital
questions in morality and also of medical ethics. But there is first the
question of whether anyone has the right to end his or her own life, with
or without assistance from someone else.

The answer to this last question is a clear cut ?Yes.? It is one?s own
life and however wrong it may be, or right, it is up to one to decided
whether to end it. Of course, there are some complications?if one has
obligations to others, say one?s children or creditors, the answer is
different since one has made commitments one must first fulfill. But all
rights can face such complications?I have a right to my property but if I
have used it as collateral for a loan, that changes things. I have a
right to my liberty but if I chose to be married, some of my liberties
have been freely restricted by me.

Still, the fundamental issue is the same: It is the individual who has
the right to decided whether to live or die since it is he or she who has
an unalienable right to life. To defend this idea is itself not so simple,
especially since there are many views contrary to it. Some hold that the
individual belongs to humanity?communists thinks so. Or to
society?socialists believe that. Or the community?communitarians hold that
view. Or to God?which is the view of various religions. Some even believe
that there is no individual at all?some eastern philosophies subscribe to
this idea.

This isn?t the place to work out the issue in full but it is possible to
remind ourselves that at least in the American political tradition,
derived from the philosophical works of classical liberals?most
importantly John Locke?one has an unalienable right to ones? life. One is
sovereign, self-ruling. And that implies that no one else may interfere
with one?s authority to guide one?s life as one will, be this for good or
for ill, so long as no one else?s rights are being violated in the process.

Accordingly, Million Dollar Baby depicts what must be understood as a
sound political or legal doctrine, even if one can take issue with its
morality. Sadly, few make this distinction. Few are now taught in school
that what the Founders meant by all of us having equal unalienable rights
to life, liberty, and the pursuit of happiness, among other things, means
that everyone must accept everyone?s ultimate authority about matters as
controversial as whether one will live or die and whether one will seek
assistance in either task.

Column on Political Rights

What Happened to Political Rights?

Tibor R. Machan

Political rights are the rights of citizens to take part in political
affairs. But that doesn?t tell us much?it depends on what count as
political affairs. Today, unfortunately, nearly anything can become
political. The US Constitution and the constitutions of many nations
around the globe no longer limit the scope of the political. One can
practically vote on anything, lobby for anything, legislate anything, so
long as there are enough or loud enough voices agitating about the matter.

This is why democracy today has become an illiberal device, one by which
liberty itself is imperiled. The result is that democracy is imperiled,
too, since majorities will at times vote to eliminate all opposition, so
the minorities will become disenfranchised.

A movement spreading political rights is afoot, supported by the very
prestigious Nobel Laureate Amartya Sen of Harvard University?s Department
of Economics. It is called the capability movement. Sen advocates the
spread of political rights, which at first sounds the right thing to do.
Surely everyone in a country needs to have his or her right to take part
in the political process protected. This is simply the extension of one?s
right to liberty, the liberty to weigh in on political matters.

Trouble is that by ?politics? Sen and his followers around the globe,
including the United Nations, have in mind any issue that concerns people.
Sen?s comments about democracy make the point clear: ?Democracy can make,
I think, three major contributions to a country. First, since political
freedom is an important freedom, the freedom to participate, to speak and
to vote is part and parcel of human freedom that we have reason to value.
Democratic freedoms have intrinsic importance, no matter what else they
achieve.? He goes on: ?Second, a democratic political system is
instrumentally important, both (1) because it gives the rulers the
incentive to respond to problems and predicaments of the public (the
government has to take note of opposition criticism as well as the
possibility of electoral defeat), and (2) because information becomes more
easily available and shared with democratic practice.? Finally, he adds,
?Third, through allowing and encouraging public discussion, democratic
political systems can help the formation of values. For example, the
importance of gender equality or of protecting minority rights or of
taking note of inequalities in the distribution of economic fortunes or
social benefits can become more fully understood through forceful
democratic dialogue and discussion - but all this can be suppressed if
political freedoms and electoral politics are suspended.?

Now notice, first of all, the slip of tongue where Sen says that
democratic systems ?allow? public discussion. In fact, such discussion is
a matter of one?s right, not someone?s permission. More important,
however, is the view that ?through forceful democratic dialogue and
discussion? such issues as ?taking note of inequalities in the
distribution of economic fortunes or social benefits can become more fully
understood.? Just what does this come to?

Simply that democracy in Sen?s mind?which I need to stress is a very
influential mind these days?really has to do with a sort of Hobbesian war
of all factions against all factions for whatever goodies there are to be
distributed and equalized. What this does to democracy is make it into a
war zone where, in the end, some faction can win at the expense of the
others.

Mind you, the intention behind this, especially in the case of Professor
Sen?who has been deeply concerned with poverty, especially famines, all
his career?is decent enough: by making it possible for all to take part in
politics, the least well off will have a chance to obtain what they need.
The problem is, however, that in a limitless democratic polity there will
indeed be ?forceful democratic dialogue? and a lot more, which tends to
favor not the poor but those with savvy, with the expertise to get what
they want from the government.

This is what the theorists of public choice have demonstrated over many
years. Led by another Nobel Laureate, Professor James M. Buchanan of
George Mason University?who, sadly, is not as influential as Sen?they have
show that politicians and bureaucrats know all too well which side of
their bread is well buttered. That is the side that favors the wealthy and
powerful factions of society. In short, a bloated democracy is not only
unstable, unjust, but also bad for those who lack clout.

Instead of such a system, a constitutional democracy, which limits the
scope of politics so that people cannot deploy the system to rob or
conscript Peter for the sake of Paul, is far more desirable. And it is,
most of all, more just. It rests on the idea of basic rights to one?s
life, liberty and property, of which political rights are but a limited
albeit important part.

Column on Further Paradoxes of Full Equality

Further Paradoxes of Full Equality

Tibor R. Machan

The folks who would rob us of our liberty in a pinch never give up. All
you need to witness this is to read a bit?look at the magazines I check
out regularly, The New Republic and The New York Review of Books, or the
Op Ed pages of The New York Times. They keep coming up with different
versions of roughly the same warmed over arguments against the free
society, even though no such society is anywhere in view. But they know
its argumentative force, so they keep recycling every piece of
intellectual ammunition they can think of.

Most recently The Times ran a piece by a professor from London?yes, they
are importing them these days, as do many of our premier academic
institutions (just think of Peter Singer at Princeton, who hails from
Australia, or Alasdair MacIntyre at Notre Dame, who came to these shores
from the UK)?arguing that when a society doesn?t equalize people?s
circumstances, this is a very bad thing indeed. Overall health suffers,
among other things, as does nearly everything else.

Professor Michael Marmot?s example?or journalistic hook?is the Academy
Awards; he claims the winners live longer than the losers and he then
segues into his main point: It would be so fine a thing if everyone could
be made equal everywhere. This would help, of course, those who now end up
at the low end of the totem pole. Never mind that there would be no totem
pole, in this dream.

After a lot of razzmatazz?some of which is rather convoluted but aims to
show that income and related inequality is responsible for all the bad
things in America and indeed the world?Professor Marmot announces that he
will not be looking at the Awards. As he puts it his ?thoughts will be
elsewhere.? We may assume they will be devoted to worrying about why there
aren?t more public policy efforts afoot trying to equalize everything in
society.

I have a suggestion, though, for Professor Marmot?he might consider
reading two classic literary works that address his dream world head one,
George Orwell?s Animal Farm and Kurt Vonnegut's short story, "Harrison
Bergeron." What these wonderful tales teach is something our visiting
professor?visiting, that is, the pages of The New York Times?fails to
consider. This is that the attempt to equalize everything in the world
ushers in the worst of all inequalities, namely, inequality of political
power.

What would be needed to make everyone equally well/badly off? A police
state, that?s what. The late Harvard political philosopher Robert Nozick
made this point a crucial element of his classic Anarchy, State, and
Utopia (Basic Books, 1974). He postulated the aggressive public policy of
equalization, combined with the measure of liberty no one can reasonably
consider giving up, namely, people spending their left over income?after
the Draconian taxation such equalization would require?as they choose. So,
millions of them would spend a bit on seeing Kobe Bryan play basketball?or
Clint Eastwood direct a movie or Britney Spears perform on stage?which
would immediately create enormous inequalities. To remedy this, what is
needed? Nothing less than a massive police operation that removes the
unequal wealth from these favorites and redistributes it all on a daily
basis.

But this is no mere bad dream. Already progressive taxation is rampant in
America and elsewhere but, of course, the editors at The Times want more.
Yet?and here is the hypocrisy involved in all this?The Times wouldn?t
think for a moment allowing someone to weigh in against Professor Marmot
despite his clearly unequal advantage of appearing in its prominent pages,
no. Their unequal advantage in the market place of ideas isn?t going to be
given up for the sake of their very own proclaimed egalitarian treatment
of, for example, those who proselytize for ideas The Times folks do not
like. No dice on that score.

Which is simply to point out that this notion of full equality is
nonsense from the word go. It isn?t only the Academy Awards that puts the
lie to it but the editorial policies of The New York Time, a most vigilant
champion of equality except where it?s editors could actually do something
about it, namely, give a fair representation of competing political ideas.
Just think what they would do if they ever got the power to foist equality
upon us everywhere!