Third Response to Olson on Rights

Mark Olson has written a third response in our exchange over the issue of the limits of individual rights. I think this response makes significant progress in defining where exactly we disagree. He has better defined his position and it's true that he is not taking the extreme anti-rights position that the government should pass any law it views as helping maintain personal morality. In fact, he admits that the government has gone too far in that direction and that some of the examples of such laws that I cite are valid examples fo what I oppose and should be repealed. Unfortunately, he doesn't say which ones, or where the line is drawn, and that gets us to the real crux of the matter. He writes:

Before I continue, I'd like to make one other point clear. I in fact, am in agreement with Mr Brayton, that in many areas society today has too many "Green" (Ethics) laws on the books. So many of his "examples", he uses to posit against my position are those with which I agree. However, I also think that some such laws are necessary, unlike the rest of the libertarian chorus commenting on that post.

So this is, it seems, a more reasonable position than perhaps one might have expected. But there's still one crucial item missing here: some objective criteria by which to determine when such laws are necessary and when they are not. I have argued that the only objective place to draw the line between legitimate and illegitimate law is the place that Jefferson, Madison, John Locke, Mill and others have boldly drawn it: between those actions which harm another against their will or deprive them of their equal right to self-determination, and those actions which do not. The former actions, all of these men argued, are rightly the subject of government coercion to prevent and punish; the latter actions, they argued, are within the boundaries of rightful liberty and may not be justly violated by any government. Indeed, as the Declaration argues, governments are instituted among men for the sole purpose of securing such rightful liberty and when it fails to do so the people may rightly throw off the shackles of such a government.

Olson agrees that the government has gone too far in punishing actions that fall into the second category here, but what he doesn't do is present an alternative standard by which to judge the validity of such laws. Once the principle is established that the government can justly regulate behavior that does not harm or violate the self-determination of another person, how does one decide when such laws are just and when they are not? By what criteria might one decide that a law that forbids consensual sodomy between adults warrants time imprisonment, but a law that forbids the distribution of films portraying the same does not? One could offer examples all day long. The closest that Olson gets to answering this question is that we should trust our leaders to decide:

The very fact, that he continues quoting Jefferson demonstrates nicely that he has found a political leader to follow. It seems to be impolitic to deny that right of others. In fact, following the lead of great men is exactly what has been done throughout history, this does not seem to me to be historical naivete. Unfortunately, our government is made up of living men, requiring us to find our leaders anew in each generation. Sometimes this is not easy, and we have failed as often as not. However, that doesn't mean it is impossible or not worth doing. Actually, I intentionally included Lycurgus, who is not seen as part of the path that wound its way to good Liberal (old sense) government for a reason. For he did in fact pen laws which formed a state that aggressively set in motion a societies customs and practices. Which is I claim what we look for in our leaders.

I'm afraid I can't be anything but baffled by the suggestion that because I quote Jefferson and therefore look to a political leader for guidance on such questions that therefore we should trust today's political leaders to draw lines in ways that the founding principle of this nation forbids. First, I'll state the fact that should be stunningly obvious to everyone: comparing today's political leaders to Jefferson is like comparing Kenny G to John Coltrane. They aren't even close. Hell, they're hardly in the same species. They may occupy the same position, just as the latter play the same instrument, but that is hardly the relevant comparison.

If history tells us anything, it is that political leaders may not be trusted to respect our rights. Even among the founders themselves, there were factions that sought to gut the bill of rights of any real meaning almost before the ink was dry with the Sedition Act, declaring that no one may print anything that might bring the government into ill repute. Even the great John Adams, who helped edit the Declaration of Independence, was able to rationalize this assault on the rights of Americans. Even great men, when given power and the need to protect it, will endorse the most oppressive policies imaginable.

The founders recognized this, of course, and designed a government that was strictly limited in its powers in order to prevent the expansion of such authority. They have only partially succeeded. Yes, American society remains far more free than most societies today, but our government has grown vastly more powerful and more intrusive. And the notion that we can trust our elected leaders today to protect our rights is, it seems to me, utter folly. The solution is not to blindly trust our leaders, but to insist that the principles of liberty upon which the nation was founded guide the formation of every law.

I want to point to one more aspect of Olson's response that I find interesting because it actually feeds into my argument above in perhaps an unexpected way. He makes the argument that there are two kinds of people, those who can run their lives (naturally, he puts himself and me in that category) and those who cannot, arguing that we need intrusive laws to prevent those who cannot from....well, he doesn't say exactly what we're protecting them against. Their own poor decisions, one must assume. He writes:

Mr Brayton seems to think that laws concerning marriage, drug use, prostitution, and so forth can safely be removed. But what might be "safely" removed for the highly educated and affluent (like himself) is not always "safe" for the marginal members of our society. Chesterton once said that those who can't see the reason for having a thing in the first place shouldn't be the ones to remove it. It was pointed out recently in the wake of looting in New Orleans, that for Mr Brayton, myself, and our gentle readers what prevents us from stealing from our neighbor's house (when unattended) is "because it is wrong" and not "we might get caught". But it appears evident that this is in fact a primary reason why some members of our society direct their actions on a day to day basis with something (distantly) approaching a civil manner. It might be useful to consider what glue holds together some communities together when order breaks down while others fail. It seems to me that customs, laws, and habits form this glue better than insisting that each citizen get a higher education, and all seek to live an examined life. Setting out laws, which support customs and habits which align to form a civil society is precisely the laws I insist we have in addition to the laws to prevent us from harming each other.

Unfortunately, he gets no more specific. He says that laws which "support customs and habits which align to form a civil society" are "precisely" the laws he is arguing in favor of, but he doesn't tell us which laws those are (and his example fo traffic lights is trivial and irrelevant; we have traffic lights precisely to protect the safety of citizens against other citizens. They fall well within the boundaries of legitimate law that I have here drawn out). Without something more specific, I am without a target to aim at. But even on this abstract level, I think he has it exactly backwards.

I agree with him that there is a distinction between the well educated and the poorly educated (a very general distinction, I am well aware that some of the well educated will advocate the same bad ideas as the poorly educated, so please don't bother to give me exceptions to this rule) in society. But I think this distinction actually cuts the other way. Surely those who are truly able to govern themselves rationally are a small percentage of society and the majority fall into the other category. But it is that large and primarily uneducated mob that insists on the intrusive laws that I object to.

Laws which violate our rights, on the whole, are not aimed at controlling this mob, they are aimed at placating them and their zeal to control others. They are exactly the audience to whom our political leaders pander and to whom they turn for support of a wide range of oppressive laws, laws which the mob, so easily whipped into a frenzy by demagogues, clamors for. Flag burning laws, anti-sodomy laws, anti-pornography laws and the like are not put in place because our well educated political leaders don't think that the uneducated masses can be trusted to rule their own lives. They are put in place because our political leaders spend a great deal of time convincing the uneducated masses that such laws are necessary to protect good and decent people like them from horrible and sinful people. This is how demagoguery operates, not in order to protect the uneducated masses from themselves but to exploit their simplistic fears of Them in order to justify a more intrusive government.

There are two other issues that Olson raises that I want to address. The first is his challenge to me to name a nation that has ever tried what I suggest:

"Rights based" government (one which only has laws which "prevent people from harming each other") is an ivory tower dream. What basis might I have for that? For one, no government like that has ever existed. That is, in the 5500 years of recorded governmental experimentation on record, it seems, insofar as I know, no such government has ever existed. Mr Brayton seems to think if we remove all laws from our society which do more than "prevent people from harming each other" that our society would trip along basically unchanged and more importantly unharmed. It seems to me in the light of the historical record, the burden of proof lies with Mr Brayton.

In this, I would urge Olson to read the Declaration itself and note that, until 1776, no nation ever attempted to establish a free society such as that suggested. The founding of this nation was a radical break with millennia of history that included the divine right of kings and no respect at all for individual rights. Olson's argument was made then, but by the defenders of oppression. I maintain that if we actually followed those founding principles, we would be better off. I certainly do not think that our society would "trip along basically unchanged". Our society would change dramatically, and for the better. Does that mean there would be no ill effects? Of course not.

More importantly, Olson is still not saying what laws he is defending here or how one determines when such laws are justified and when they are not. I have named most of the laws that I would get rid of on the basis of the principles I've stated. Olson says that society will collapse and "perish from the earth" if we apply that principle consistently, but he still hasn't said exactly what laws which violate the principle I've stated are necessary for the survival of this nation, or why he thinks they are. Until he gets more specific, I'm stuck trying to hit a moving target.

Lastly, he makes an argument about federalism that he appears to tie in with the larger argument. He seems to be arguing that the Federal government should abide by the principle I've stated, while the state governments should have full authority to do whatever they please:

The Federal government might best leave itself largely in the role Mr Brayton thinks should be left to all government. For it seems to me the 9th Amendment leaves the unenumerated rights to the States. Mr Brayton commented that the 14th "undoes that" and leaves the unenumerated rights with the people. Alas, while I've heard that claim, I can't tease that interpretation from the text. I understand his claim is "mainstream", but I am an amateur and just don't see how they read it that way.

This gets us to the 9th and 14th amendments, which I've written about in considerable detail. When the 14th amendment refers to the "privileges and immunities" of citizens of the United States, which it declares no state could violate, to what does it refer? The words of the men who wrote and advocated the 14th amendment make very clear that "privileges and immunities" refers not only to the Bill of Rights proper but to the whole body of natural rights that they are designed to protect. The combined effect of the 9th and 14th amendments should be obvious.

The 9th declares that the prior 8 amendments are not an exhaustive list of all of the rights an individual has; indeed, it was necessary because, as the founders said so clearly, no such exhaustive list was possible. Thus, there are unenumerated rights which the government is still bound not to violate. The 14th amendment applies all such rights, enumerated and unenumerated, to state governments as well as the Federal government. After the 14th amendment, if the Federal government could not take action X, neither could the state governments because both were to be judged by the same constitutional standard. For deeper analysis of the meaning of the privileges and immunities clause, see here.