tag:blogger.com,1999:blog-6661446482020605582024-02-19T23:17:50.583-08:00Progressive Views on Freedom and CapitalismThere are plenty of sites that stress a libertarian view of freedom. This blog, by contrast, expresses progressive views of liberty, arguing that liberty does not necessarily mean maximum individual rights, free markets, and minimal government.Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.comBlogger27125tag:blogger.com,1999:blog-666144648202060558.post-53287647481963243522012-01-04T09:18:00.000-08:002012-01-04T09:20:30.322-08:00A Progressive View of LibertyAmericans are particularly concerned with our liberties because we see liberty as core to what it means to be American. After all, the United States was founded with a vision of liberty as articulated in the Declaration of Independence and institutionalized in the American Constitution. To embrace liberty is to embrace what it means to be American.But what does liberty mean and from whence does this commitment to liberty come?<br /><br />Over the last several decades we have been given one particular perspective on these questions. Liberty, we have been told, is synonymous with the rigorous protection of our individual or natural rights. Any constraints on those rights are compromises of our cherished liberties, an abandonment of the original American way and vision, and ultimately destructive to our country.Those who promote this view of liberty point in particular to the size and bureaucracy of the American government as the source of the most threatening compromises and dangers to our liberties. In their view, liberty by definition means that government should be small and stay out of our lives. The bigger government becomes the more invasive it is and the less liberty we have.<br /><br />Why is this so?Big government by its very nature oversteps its boundaries in countless ways: it meddles in our lives and tries to make rules, such as laws about gun control and smoking, that curtail our individual liberties and violate our natural rights to be free. Big bureaucratic government also invariably creates programs that require higher taxes and that thereby rob us of our hard earned dollars which are siphoned to programs that we have never endorsed such as abortion clinics. Big government also invariably steps into policy areas where it doesn’t belong, like trying to mandate health care or the type of health care we choose. In addition, big government also inappropriately intervenes in economic markets with laws and taxes that try to shape economic behavior. Over and over again, big government oversteps its bounds and infringes our liberties or takes our property. For those who hold this view of liberty and the corresponding view of government, the crusade to make American government smaller is analogous to the vision of the founders and the original Boston Tea Party that wished to end Great Britain’s control over American trade.<br /><br />In what follows, I insist there is another tradition of viewing liberty that does not understand the role of liberty or the role of government this way. Instead of thinking of liberty as a set of natural or individual rights that must be protected no matter what, this other tradition sees liberty as including a set of obligations, duties, sacrifices and responsibilities that come into being as members of social communities. Liberty on this view means living justly as part of and within a social community.<br /><br />With this understanding of liberty comes a corresponding shift in the understanding of government. Rather than seeing government as a threat to our liberties, government emerges as the mechanisms through which we try to implement and live out our mutual responsibilities to one another. This alternative perspective sees government as a positive force in helping us achieve our liberty, rather than an evil empire stealing our liberty.I will argue that this shift in thinking about liberty is authentic in various ways. It is rooted in the great insights of modernity; it is consistent with the views of the American founders, and is a logical conclusion from both traditional and modern religious understanding of God. This view of liberty can also make sense to atheists, who do not root their understanding of liberty in religious understandings of God.<br /><br />It is also my contention that rehabilitating this alternative tradition allows us to restore America’s heart and soul. Liberty ceases to be a selfish egocentric concept. Instead, we can see our liberties as ways in which we promoting the benefits and well-being of other human beings, not just protecting what is rightfully ours. What we think of as “rightfully ours” changes and emerges out of engagement with other human beings who also share our society and planet that we inhabit.To understand and uncover this other tradition of liberty, we must go on an intellectual journey, teasing out the underlying assumptions that inform the now dominant and distorted myth of liberty. We shall learn that much of what we have come to think about liberty --and by extension what we call “America” and even “modernity”-- is either mistaken, lacking nuance, or simply wrong-headed. And what we uncover is something far more ennobling, enriching and ultimately better for us all on this collective journey we make. For more on my thinking, see <a title="more of my musings. " href="http://www.freedomandcapitalism.com/" target="_blank">www.freedomandcapitalism.com</a>Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.comtag:blogger.com,1999:blog-666144648202060558.post-14890489428691630872011-11-25T10:30:00.000-08:002011-11-25T10:36:55.677-08:00The Perversion of Liberty by the Tea Party and Right WingThe Republicans and Tea Party advocates have perverted the concept of liberty. When they appeal to “individual rights” and “liberty” to critique the American government, they are reframing key American ideas in new ways and in ways that are arguably perverted. But they pretend they are the same ideas with which this country was founded. Any student of religion knows that the same is true of religious faiths. Every religious group finds its own ideas in the ideas of Moses, Jesus and so forth. The founders can always be made to appear like one wants them.<br /><br />It is true that the liberty idea was one of the core ideas in the American founding. But the context and meaning of that idea were different then from now. Then, Americans were breaking away from an imperialist British Empire that was economically and politically suppressing the American colonies. Americans had no representation in the British Parliament that made decisions about their taxes. It was taxation without representation. They did not vote for their elected officials nor did they send members to Parliament.<br /><br />We by contrast live in a government structured the way the founders wanted. It is a republican government elected by the people with a balance of powers built in to protect the minority from the majority. We do have representation in the government that makes laws over and for us. One can argue that the government is no longer working. But that is a different argument. As long as we are represented by a government that we collectively elected, the system is a free one, even if it is a broken one. “Being broken” and being “not-free” are different things, at least theoretically. In fact government always seems broken to someone or some group, by definition. Liberty as the founders envisioned it was living under the rule of a government that was structured to give the people a significant voice but also to balance the risk of majorities suppressing minorities.<br /><br />Republicans and Tea Party advocates talk as if the United States suppresses individuals the way the British Empire suppressed the colonies. The context is different, the problem is different and an appeal to liberty is misleading and in many ways perverted.Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.com2tag:blogger.com,1999:blog-666144648202060558.post-2911139779262761222011-11-12T09:39:00.000-08:002011-11-12T09:46:49.893-08:00Tea Party: Is government taking away my liberty?Many people tell you government is the antithesis of your liberty. But is that so?<br /><br />The current rhetoric of the Republicans and Tea Party is that my liberty is compromised by government which is too big. Government that gets too big compromises my liberty. The key question is, "What is liberty?" And "How does one know that government has compromised it?"<br /><br />The key problem with the Tea Party and with Republican positions on liberty is this: they have no way of distinguishing what is a valid constriction on my liberty from what is not. When government sets rules about how fast we can drive is that a violation of my liberty or is that a protection of my life, which is a protection of my liberty? Or when government says I can’t put my 16 year old daughter in a tank and let her drive down the streets of my town, is that a violation of my or her liberty? Well, yes, of course it is a limitation of our liberty. But we accept and appreciate these kind of rules and restrictions because we are all trying to figure out how to live together without killing each other.<br /><br />A constriction on my liberty is part of my liberty. Rules make possible an enlarged liberty. Tea Party and Republican “liberty” advocates hide this fact. Our liberties become possible precisely because we have government and rules. That is not to say that government can’t overstep the bounds of what it should legitimately limit. That is possible. But that is a different question from how we set the boundaries over the rules government may legitimately produce and enforce and those they may not. That is much more nuanced than the generic claim that government infringes on my liberty. Tea Partiers and Republicans forget that government also makes liberty possible. And it does so by protecting me from you and you from me and all of us from the Tea Party!Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.com0tag:blogger.com,1999:blog-666144648202060558.post-45228892270401433102011-06-18T17:39:00.000-07:002011-06-18T17:46:48.646-07:00Does Natural Law Lead to the Conclusions of the Tea Partiers and Libertarians like Ron Paul?<span style="font-family:georgia;"></span><br /><span style="font-family:georgia;">The Tea Party bases all of its core assumptions on the idea of natural law. “We hold, as did the founders, that there exists an inherent benefit to our country when private property and prosperity are secured by natural law and the rights of the individual.” <a href="https://docs.google.com/View?id=dhsxmzm7_19fcdzskg5&pli=1">See the Tea Party Principles. </a></span><br /><br /><span style="font-family:georgia;">What is natural law in the minds of the Tea Party? They don’t ever spell it out very much. When they do they refer often to the Declaration of Independence. “We hold that that United States is a republic conceived by its architects as a nation whose people were granted "unalienable rights" by our Creator. Chiefly among these are the rights to "life, liberty and the pursuit of happiness." </span><br /><span style="font-family:georgia;"><br />This all sounds good. After all who can question the Declaration of Independence and the language of Thomas Jefferson?<br /><br />I’ve been poking at the Tea Party idea of natural law already and there is much to poke at. Here I want to show that even if you did accept natural law as a foundation for a good society (and I don’t for reasons I’ll blog about later), you still wouldn’t necessarily draw the conclusions that the Tea Party does. In other words, the foundation the Tea Party philosophy in natural law does not necessarily lead to the understanding of “Fiscal Responsibility, Constitutionally Limited Government, and Free Markets” and all the other core principles that motivate them. This means that their founding assumption and philosophical premise does not lead to the conclusions they derive from it.<br /><br />The point is easily proven simply by noting that thinkers such as Thomas Hobbes endorsed a notion of natural law and came to the very opposite conclusion. Starting from ideas of natural law and natural rights he argued that government in the form of a sovereign should be all powerful and have absolute control. The notion of natural law, by itself, therefore does not necessarily lead to the conclusion that government must be small and individual rights must be maximized. Interestingly enough, Thomas Hobbes is often credited with initiating the modern notion of natural rights which ultimately culminates in the writings of John Locke and even the American Founders. </span><br /><span style="font-family:georgia;"><br />Tea Partiers might say that the Hobbesian view of natural law is wrong. The Declaration endorses a different view of natural law, put forward by someone like John Locke in the Second Treatise on Government. Indeed many people say that Thomas Jefferson’s language in the Declaration was dependent on John Locke ideas. (I’ve taken up this discussion in my recent book, Liberty in America’s Founding Moment.)<br /><br />It is true that starting from the idea of natural law, John Locke arrives at different conclusions than Hobbes. Locke argues that government cannot infringe the natural rights that individuals have in the State of Nature. The Lockean view on the face of it looks like the Tea Party and Libertartian understanding of “life, liberty and pursuit of happiness.” But that initial assumption is misleading. In fact, it is not true that Locke ends up where the Tea Partiers or libertarians such as Ron Paul do. To begin with, Locke argues that to enter society you have to give up certain rights that you have in the State of Nature. For Locke, the entrance into society and becoming part of the social contract entails a sacrifice and compromise. You have less liberty than you did outside of society. But the sacrifice is worth it because you benefit from being part of a community. Loss of some liberty is the cost of being a social creature. The notion that sacrifice is required to be part of a community has for the most part disappeared completely in the rhetoric of the Tea Partiers, Republicans and Libertarians.<br /><br />Furthermore, once in society, according to Locke, one has to live by the decisions of the majority. And Locke sees the decisions of the majority as the way in which “taxes” are decided. Locke does not say “government has to be as small as possible.” He says only that government can’t take away the natural rights of people and he clearly thinks that taxes are something that is determined by the majority. This means that what constitutes legitimate taxation is a majority decision. Government can take taxes based on what the community defined as a majority thinks is right. There is no way, without consulting the majority, to say what is by definition constitutes too much spend by government. One may conclude that our government spends too much, but in the natural rights tradition, as formulated by Locke, the way to implement that view is through the election process.<br /><br />When the colonial Boston Tea Party threw the tea into the sea they did so because they had no vote at all on the taxes that were being imposed on them by Great Britain. They wanted representation in a legislature that would determine what taxes would be imposed upon them. Today’s Tea Party has full participation in the legislation and government. To claim that today’s government compromises liberty is a misinterpretation and even perversion of both the founders’ intent and Locke’s views on which they may have been founded.<br /><br /><br /></span><span style="font-family:georgia;"></span>Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.comtag:blogger.com,1999:blog-666144648202060558.post-17869493255890337602011-06-15T21:50:00.000-07:002011-06-15T21:54:45.818-07:00Is Natural Law the only basis for sound government and just human relations?<p>The Tea Party of Montana lists “The 28 Principles of Liberty” . <a href="http://www.freedomlibertyteaparty.com/Principles-of-Liberty.html">http://www.freedomlibertyteaparty.com/Principles-of-Liberty.html</a></p><br /><p>The first of these is as follows:</p><br /><p>1. The only reliable basis for sound government and just human relations is<br />natural law.</p><br /><p>The Tea Party of Montana says explicitly that “natural law” is the “only reliable basis for sound government and just human relations.” Not all of the Tea Party advocates say that “natural law” is “the only reliable basis for sound government and just human relations.” But enough do that it is worth making explicit why this claim is not only wrong but an attempt to smuggle in a host of other assumptions about God and religion.<br /><br />To begin with, the term natural law is itself complex and books have been written about it. Typically natural law is contrasted with the natural rights tradition that emerged from it in the seventeenth century.The natural law tradition is typically associated with Thomas Acquinas and other Christian and Jewish religious thinkers because it places God at the center of the philosophical system. This tradition is known for reconciling Christian and Jewish views of God with Greek philosophical ideas. In this tradition, God’s Reason, as understood by a reading of Scripture, and the Laws of Nature are one and the same thing. <br /><br />The Natural Rights traditional is typically associated with the emerging modern tradition in the seventeenth century and associated with thinkers such as Grotius, Hobbees, Pufendorf and John Locke who build on but fundamentally transform some of core religious assumptions in the natural law tradition. Typically, when people say that the natural rights tradition is at the heart of the American vision, they are assuming that the American founders were influenced by the natural rights tradition, particularly the work of John Locke among others.<br /><br />The notion of natural rights is itself problematic and arguably not at the heart of the American founders’ vision, as I detail elsewhere. But the Tea Partiers who claim that natural law is at the heart of the American vision are attempting to smuggle in a very traditional Christian and Jewish view of God that clearly was not at the heart of founders’ writings. So when they say “natural law” is the only reliable basis for sound government lets not be mistaken. They are claiming that only a society with a religious conception of God can have a sound government. To this I say, give me liberty or give me death!<br /></p>Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.comtag:blogger.com,1999:blog-666144648202060558.post-274943236128658522011-04-07T06:34:00.000-07:002011-04-07T06:56:00.638-07:00Liberty, the Tea Party, and the Founders' Views of Rights<a href="http://4.bp.blogspot.com/-zvjvFJzvxhM/TZ3CVwO1IlI/AAAAAAAAAp8/Pkc31NAljM4/s1600/41nratzPCwL__SL500_AA300_.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 200px; FLOAT: left; HEIGHT: 200px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5592839991244169810" border="0" alt="" src="http://4.bp.blogspot.com/-zvjvFJzvxhM/TZ3CVwO1IlI/AAAAAAAAAp8/Pkc31NAljM4/s200/41nratzPCwL__SL500_AA300_.jpg" /></a> <br /><div><a href="http://3.bp.blogspot.com/-eeUylHH4ais/TZ3BRrGdBSI/AAAAAAAAAp0/QbhJVtt4UqE/s1600/41nratzPCwL__SL500_AA300_.jpg"></a>The Tea Party has an overly simplistic view of rights and of history (as their very name attests). I haven't blogged on this topic a while because I was finishing a book about this topic and getting it into print. It is now out. It is a book that takes on the simplified view of rights in the founding period. <br /><div><br /><div><strong><a href="http://www.amazon.com/s/ref=nb_sb_noss?url=search-alias%3Dstripbooks&field-keywords=liberty+in+america%27s+founding+moment">Liberty in America's Founding Moment: </a></strong><strong><a href="http://www.amazon.com/s/ref=nb_sb_noss?url=search-alias%3Dstripbooks&field-keywords=liberty+in+america%27s+founding+moment">Doubts About Natural Rights in Jefferson's Declaration of Independence. </a></strong></div><br /><div>If you follow the rhetoric of the Tea Party and the others that share their "liberty-first" philosophy, they often appeal to a concept of natural rights or individual rights that they say is endorsed by the American founders and is evident in the Declaration of Independence. If the founders endorsed natural rights and the Declaration of Independence does the same, then we must do so also. </div><br /><div>The fact is that the notion of natural rights is extremely problematic. Anyone with a philosophy background knows that most modern philosophers since the end of the seventeenth century have had significant doubts about natural rights as a concept, even though it was pretty smart and interesting in its time. That story is worth telling in another context. </div><br /><div>But what is often misunderstood is that the American founders themselves had doubts about the concept of natural rights. They were reading some of the philosophers like Hume who expressed doubt about John Locke's philosophy of natural right for example. Even Jefferson, the author of the Declaration, may have had significant doubts about natural rights when writing the Declaration. </div><br /><div>It is clear, moreover, that there was no single unified view of rights among the founders. Jefferson did not agree with James Wilson or John Adams for example on what the foundation of American rights should be. The Declaration far from declaring a unified view of rights actually is covering up a series of disagreements among the founders on the foundation of American rights. </div><br /><div>What does all this mean? It means that the Tea Party and other libertarians and "liberty-first" advocates oversimplify history in attempts to shore up their own philosophy of rights by appealing to the American founding. It is this part of their argument that I demolish in my book <a href="http://www.amazon.com/s/ref=nb_sb_noss?url=search-alias%3Dstripbooks&field-keywords=liberty+in+america%27s+founding+moment">Liberty in America's Founding Moment.</a></div><br /><div></div><br /><div></div><br /><div></div><br /><div></div><br /><div></div></div></div>Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.comtag:blogger.com,1999:blog-666144648202060558.post-89991795148803384482010-08-15T09:12:00.000-07:002010-08-15T09:24:10.261-07:00On GZ Mosque, Obama and Ghettos: The Challenge of Difference in a Liberal Society<span style="font-size:130%;">I have been engaging in email exchange with Eric Dondero, Publisher, LibertarianRepublican.net. Yesterday, I posted a blog showing our back and forth conversation (<a href="http://libertyandcapitalism.blogspot.com/2010/08/is-engagement-futile-progressive-and.html">http://libertyandcapitalism.blogspot.com/2010/08/is-engagement-futile-progressive-and.html</a> ) </span><br /><span style="font-size:130%;"><br />I’m not sure I’d call it a respectful conversation yet, but it is at least a conversation between people who fundamentally disagree with each other. I for one welcome engaging Eric and other libertarians directly.<br /><br />I wanted to pick up on Eric’s last email to me:<br /><br />From: Eric Dondero <ericdondero@yahoo.com><br />To: Howard Schwartz <hsaccount@yahoo.com><br />Sent: Sat, August 14, 2010 11:46:43 AM<br />Subject: Re: Howard, Liberty is all about Individual Rights<br />Yes, you may quote anything I said, but not as Anonymous. As Eric Dondero, Publisher, LibertarianRepublican.net<br /><br />And most certainly do quote my comments about pro-life and marijuana.<br /><br />I think we are dangerously close to Civil War in this country. Obama's actions yesterday with the GZ Mosque have royally pissed a lot of people off. This guy truly hates America. I mean there's no dancing around it any more for liberals. I'd have a lot more respect for your side if you just admitted that yes, our guy Obama, does really hate America, hates Americans, and wants to see this Nation destroyed.<br /><br />Why is it so hard for your side to come clean on that? Just admit it for gosh darn's sake.<br /><br />Again, the only "compromise" I see is through private property rights. You all set up a bunch of Kibutzes for your collectivist strategies, isolate yourselves, and leave the rest of us real Americans the hell alone.<br /><br />Problem is liberals don't want to do that. They want to jam their communism down the throats of the rest of us.<br /><br /><br /><strong><span style="color:#333399;">My reply:</span></strong><br /><br />Eric,<br />There are several points I would like to respond to in this email. Each of them probably deserve their own blog.<br /><br /><strong><span style="color:#333399;">Your comment:</span></strong><br />Obama “truly hates America”….Why is it so hard for your side to come clean on that? Just admit it for gosh darn's sake.<br /><br /><strong><span style="color:#333399;">My response:</span><br /></strong>I completely disagree. And the issue I think is whether someone you fundamentally disagree with necessary “hates America”. I fundamentally disagree with you but I think you love America. We just have very different visions of what America is. The fact that you have a very different vision than me doesn’t mean you hate America. Nor does it mean I hate America. The same is true of Obama. He loves America just like you do. Only he has a different vision of America than do you. My vision happens to be much closer to his.<br /><br />In fact, I guess, a vision of freedom is ultimately about how we live in the same country with people who make us feel hate and who have fundamentally different views.<br /><br /><strong><span style="color:#333399;">Your comment:</span></strong><br />Obama's actions yesterday with the GZ Mosque have royally pissed a lot of people off.<br /><br /><strong><span style="color:#6600cc;">My response:</span></strong><br />I can understand why many people feel very vulnerable and emotional over a mosque close to ground zero. Many Americans still associate any form of Islam with the attack on America. But I believe there are various forms of Islam. There are militant forms of Islam that are trying to destroy America and that feed the ideology of Bin Laden and Al-Qaeda, among other militant Islamic groups. But I also believe there are more moderate, ethically oriented forms of Islam as well. Religion definitely has the capacity to produce intolerance and hate. But that is true, not just of Islam, but of Christianity and Judaism too. Take the Christian crusades in the middle ages and the number of Jews and witches burned at the stake. Christianity had its violent side as well until the enlightenment in the seventeenth century when thinking about the nature of religion fundamentally changed. The idea of liberty, incidentally, was born in the same period and I would argue was closely tied in to a new understanding of religion that made it more tolerant. I would agree that Islam needs that kind of encounter with enlightenment, but I worry as much about fundamentalist Jews and Christians as about fundamentalist Muslims. In my view, there are only two forms of religion in the world, those who are fundamentalists and those who are not.<br /><br />So back to the GZ Mosque. I can see why the Mosque being built near ground zero is painful to so many people. But I also believe that enlightened and reflective Muslims can be a part of America just like Christians and Jews. Yes, I am a Jew and have special sensitivity to minority people’s and religions because of the history of my own people.<br /><br /><br /><strong><span style="color:#6600cc;"><span style="color:#333399;">Your comment:</span><br /></span></strong>Again, the only "compromise" I see is through private property rights. You all set up a bunch of Kibutzes for your collectivist strategies, isolate yourselves, and leave the rest of us real Americans the hell alone.<br /><br />Problem is liberals don't want to do that. They want to jam their communism down the throats of the rest of us.<br /><br /><strong><span style="color:#333399;">My reply:<br /></span></strong>Hmmmm….I hope the statement about Kibutzes is not intended to be anti-Semitic. I am in fact a Jew and the reference to putting us in kibbutzim (plural for Kibutz) can stir up anti-Semitic fears of ghettos in Europe. I’m going to assume you didn’t want me to feel you were saying that because accusations like that they don’t get us anywhere. I’ll assume you mean that you want to put liberals into their own political communities but not allow them to vote and therefore impose their views on libertarians.<br /><br />But how is that a liberal society, Eric? Are you saying that all non-libertarians should not be able to vote? Isn’t that the opposite of liberty? Isn’t liberty by definition the running of government by the people and isn’t the structure of the legislative branches to enable diverse viewpoints to express themselves and ultimately come to resolution. Isn’t this the vision of the founders? How do you reconcile your with freedom of speech? I get it that you feel that your liberty is being compromised when liberals win the election and get to impose more taxes than you like, or want to support seat-belt rules, or limit guns, or impose non-smoking rules. You feel like the Communists or Socialists have taken over.<br /><br />The real question, Eric, is how should a liberal society define where the boundary between individual rights and government. You assume liberals are embracing Communism because we want to enforce more taxes than you like, we want to support seat belt rules, and non-smoking rules, and have regulations on the oil companies and the financial markets. But there is a huge spectrum, in my view at least, between libertarian views and Communism. There can be many regulations in a society without it being Communist or Socialist. Indeed, I would argue that the notion that government should regulate society was at the heart of the liberal vision defined by John Locke and other early advocates of natural rights. What differentiates regulation from Communism or Socialism is the right of representation. The rules imposed by government grow out of a political process that allows Americans to weigh in through voting. It is through representation that the founders believed ensured that taxes and regulations would be by the people.<br /><br />I am sometimes as frustrated as you by the outcome of the political process. When Republicans are in office I also feel they shove down our throats policies that I find offensive. When George Bush led us into war with Iraq, my money was spent on a war that I could not understand or defend. And when Republicans or Libertarians defend the lack of regulations that can lead to disastrous oil spills such as we recently saw in the Gulf, or lack of regulations that in my view generated the housing market bubble burst and the ultimate economic melt-down, I too feel sickened and angry.<br /><br />But it seems inevitable that in a liberal society some group or groups always feel that the majority are imposing their views on the minority (within the limits set by the Constitution and the court). Is that not what representation is ultimately about. One side winning and another losing.<br /><br />I don’t yet want to go as far as you and imagine putting Republicans or Libertarians into Kibbutzim or Ghettos. Ultimately, of course, if both sides feel passionate enough, the political process could simply break down. We could end up in Civil War (I hope not!). Perhaps we will have to divide America into Liberal and Libertarian States. I live in California so I’m safe I guess. But then it is going back to the days before the Constitution of 1787 when each state was its own autonomous political unit. And if we do that, then America as a country will not be able to act as a unit and will lose the dominance in the world and be more like Europe a bunch of countries that have an alliance. Perhaps that is the inevitable outcome, and perhaps the consequences will be good for the world. Otherwise, we have to learn to live together.<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /></span><span style="font-size:130%;"></span>Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.comtag:blogger.com,1999:blog-666144648202060558.post-64317277485654986302010-08-14T16:07:00.000-07:002010-08-14T16:20:09.125-07:00Is Engagement Futile?: A Progressive and Libertarian Exchange On the Meaning of LibertyI recently had an interesting and sad exchange with Eric Dondero, Publisher, www.libertarianrepublican.net after I published an earlier version of my critique of the Tea Party Principles (<a href="http://libertyandcapitalism.blogspot.com/2010/08/tea-party-manifesto-why-tea-party-has.html">http://libertyandcapitalism.blogspot.com/2010/08/tea-party-manifesto-why-tea-party-has.html</a>).<br /><br />The exchange saddened me because I was hoping to engage in serious conversation across the divide that separates the progressives and libertarians on the question of liberty. I thought since I had studied and thought deeply about the question of liberty we could have a real conversation that might be of interest to a larger audience. The exchange illustrates the seriousness of the divide that separates us. The question is ultimately whether conversation is futile or whether the only way of addressing the deep disagreement is via civil war.<br /><br />The exchange began when I posted an earlier version of my blog critiquing the Tea Party principles. Eric has kindly given me permission to reproduce our exchange on my blog.<br /><br />The discussion began when I received the following email from Eric:<br />________________________________________<br />________________________________________<br />From: Eric Dondero <ericdondero@yahoo.com><br />To: "hsaccount@yahoo.com" <hsaccount@yahoo.com><br />Sent: Tue, August 10, 2010 10:15:31 AM<br />Subject: Howard, Liberty is all about Individual Rights<br /><br /><br />Liberty has nothing to do with Collectivism in its various forms - Naziism, Communism, Fascism, Socialism, Welfare Statism. It is the exact opposite of these authoritarian ideologies. My gosh, you don't know the first thing about Liberty or Libertarianism. You are completely clueless.<br /><br />Your article was almost a parody. It was so awful, I almost thought you were some conservative or libertarian posing as a liberal to help us to prove our point on the ignorance of the Left.<br /><br />Please confirm for me that was a sincere piece, and not parody?<br /><br />Thanks<br /><br />Eric Dondero, Publisher<br />www.libertarianrepublican.net<br /><br />If it was a true piece, would you mind if I reprinted it at LR to show how idiotic the beliefs of the Communist Left really are, for my readers? Thanks<br /><br /><br /><strong><span style="font-size:130%;color:#3366ff;">My Reply:<br /></span></strong><br />From: Howard Schwartz <hsaccount@yahoo.com><br />Subject: Re: Howard, Liberty is all about Individual Rights<br />To: "Eric Dondero" <ericdondero@yahoo.com><br />Date: Wednesday, August 11, 2010, 10:32 PM<br />Hi Eric,<br />Thanks for your email. I disagree with you profoundly as you can see. There is something between "individuals-only" and "communism". This was a sincere piece. I'd be fine if you want to publish it. I might want to review it and beef it up/clean it up a bit before you do. What is the length you can accept? I'll work on giving you a cleaned up version if you like. Happy to engage. I've done a lot of reading and thinking on the topic. Having a different opinion than you doesn't make me clueless.<br /><br />I'd be happy to engage with you on the topic.<br /><br /><span style="font-size:130%;color:#3366ff;"><strong>Eric’s Reply:</strong></span><br />From: Eric Dondero <ericdondero@yahoo.com><br />To: Howard Schwartz <hsaccount@yahoo.com><br />Sent: Wed, August 11, 2010 2:40:02 PM<br />Subject: Re: Howard, Liberty is all about Individual Rights<br /><br />Re-format it and edit to fit the format of my blog www.libertarianrepublican.net and send it along. I'd be glad to run it, without edits from me, so as to portray the cluelessness on libertarianism of the Left.<br /><br /><span style="color:#3366ff;"><strong><span style="font-size:130%;">My reply</span></strong><br /></span><br />From: Howard Schwartz <hsaccount@yahoo.com><br />Subject: Re: Howard, Liberty is all about Individual Rights<br />To: "Eric Dondero" <ericdondero@yahoo.com><br />Date: Friday, August 13, 2010, 3:53 PM<br />Hi Eric,<br /><br />Here is a version I cleaned up. Will this work or is it too long?<br />I want to do one final read but its pretty much ready to go<br /><br />Howard Schwartz<br /><br /><strong><span style="font-size:130%;color:#3366ff;">Eric’s reply:<br /></span></strong>From: Eric Dondero <ericdondero@yahoo.com><br />To: Howard Schwartz <hsaccount@yahoo.com><br />Sent: Fri, August 13, 2010 8:22:31 AM<br />Subject: Re: Howard, Liberty is all about Individual Rights<br /><br />Yes, this will work. I'll run it tomorrow. Would be helpful, and add to the piece if you could send me a jpg. or youself?<br /><br /><br /><span style="color:#3366ff;"><strong>After I sent Eric a rather nice picture of myself I got this reply:</strong></span><br /><br />From: Eric Dondero <ericdondero@yahoo.com><br />To: Howard Schwartz <hsaccount@yahoo.com><br />Sent: Sat, August 14, 2010 5:46:52 AM<br />Subject: Re: Howard, Liberty is all about Individual Rights<br />Howard, this is going to suck. You're not going to be happy.<br /><br />I woke up this morning and learned that our "President" (sic - the fucker wasn't even born here in the United States), has sided with Muslim Terrorists, and has come out in favor of allowing these Terrorists to build an Al Qaeda/Hamas linked Terrorist Training Center in southern Manhattan, two blocks away from Ground Zero.<br /><br />You see like a nice guy. But I have decided not to publish your piece.<br /><br />You Liberals/Leftsts are America's enemy. There's no mincing words, no soft-peddaling about it. You all Hate America, and want to see our Great Nation destroyed.<br /><br />I could not live with myself, if I gave even one millimeter of space on my Pro-Liberty/Pro-America blog, to my enemy and an enemy of our Great Nation.<br /><br />Sorry. I know you put some time in editing the piece for my site. And what I'm doing really sucks. And if you ever see me in person, I wouldn't blame you if you wanted to just punch me in the face, and kick me in the shins. You'd have that right.<br /><br />But I've made my decision.<br /><br /><span style="font-size:130%;color:#3366ff;"><strong>My reply</strong></span><br />From: Howard Schwartz <hsaccount@yahoo.com><br />Subject: Re: Howard, Liberty is all about Individual Rights<br />To: "Eric Dondero" <ericdondero@yahoo.com><br />Date: Saturday, August 14, 2010, 6:08 PM<br />Hey Eric,<br /><br />It’s your blog so of course you have to make the final judgment. I'm perfectly okay with your decision, a bit disappointed mainly because I would like to find a venue to have a real dialogue.<br /><br />You and I both have strong feelings about our positions and commitments. That is really a good thing. Liberty (for better and worse) allows people to end up in positions that the other sides hate. That is what freedom of ideas is about. When I read the founding period such as 1787 Constitutional Convention and the debates between the Jeffersonians and the Federalists it seems this tension and emotion was there from the very beginning (maybe it is endemic to democracy?).<br /><br />I'm disappointed only because I was hoping to find a way to talk meaningfully across the divide and you seem like someone who thinks deeply on the other side. May I blog about your email to me on my site as a way to talk about that dilemma?<br /><br /><em>Regarding your comments that<br /></em>"You Liberals/Leftsts are America's enemy. There's no mincing words, no soft-peddaling about it. You all Hate America, and want to see our Great Nation destroyed. "<br /><br />Me (Howard): That isn't true. At least I don't feel like an enemy of America. I love America but you and I have different visions of America. The question in my view is whether we can both have an America that we can live in, though we disagree. That is the interesting issue in democracy I think. I hope we can and that is the hope I have. Isn't there a way you can see me as a passionate person you can respect who has a different view and ultimately cares about America too?<br /><br /><em>Your comment: </em><br />I could not live with myself, if I gave even one millimeter of space on my Pro-Liberty/Pro-America blog, to my enemy and an enemy of our Great Nation.<br /><br />Me (Howard): I understand if you don't want to publish my views in your blog. But how do we try to talk across our differences and come to understanding?<br /><br />Your comment:<br />Sorry. I know you put some time in editing the piece for my site. And what I'm doing really sucks. And if you ever see me in person, I wouldn't blame you if you wanted to just punch me in the face, and kick me in the shins. You'd have that right.<br /><br />Me (Howard) I am not angry at you for this. You at least reached out to me to "converse". I have no desire to punch or kick you...I would even shake your hand and ask if you'd like to have coffee and talk..... maybe someday?<br /><br />Howard Schwartz<br />hsaccount@yahoo.com<br /><br /><strong><span style="font-size:130%;"><span style="color:#3366ff;">Eric’s reply:</span><br /></span></strong>From: Eric Dondero <ericdondero@yahoo.com><br />To: Howard Schwartz <hsaccount@yahoo.com><br />Sent: Sat, August 14, 2010 11:22:47 AM<br />Subject: Re: Howard, Liberty is all about Individual Rights<br />Sure, you have my permission to say what you wish about this incident or my comments on your blog.<br /><br />You seem like a decent guy, so it pains me to say this, I honestly believe there's absolutely no room at all for dialogue between liberals and libertarians/conservatives. You all are the enemy. There is very, very, very little that we can agree on.<br /><br />Hell, I once thought liberals were good on marijuana, and abortion. But alas, you all want to tax marijuana once it's legalized, and even though you're pro-choice on abortion, you want government funding, plus to add insult to injury, you want by pro-life conservative friends to be forced to cover those abortions with their tax dollars.<br /><br />So, even on the two issues that there might have been agreement between liberals and libertarians, there really isn't any.<br /><br />No truce, no cease fire, no nice intellectual dialogues, not for me. You may find other libertarian/conservatives willing to do this, but not me. I have dedicated my entire life to the destruction of liberalism/socialism. And I will go to my death bed cursing you all to eternity.<br /><br /><strong><span style="font-size:130%;color:#3366ff;">Then Eric wrote me again:<br /></span></strong>Subject: Re: Howard, Liberty is all about Individual Rights<br />Yes, you may quote anything I said, but not as Anonymous. As Eric Dondero, Publisher, LibertarianRepublican.net<br /><br />And most certainly do quote my comments about pro-life and marijuana.<br /><br />I think we are dangerously close to Civil War in this country. Obama's actions yesterday with the GZ Mosque have royally pissed a lot of people off. This guy truly hates America. I mean there's no dancing around it any more for liberals. I'd have a lot more respect for your side if you just admitted that yes, our guy Obama, does really hate America, hates Americans, and wants to see this Nation destroyed.<br /><br />Why is it so hard for your side to come clean on that? Just admit it for gosh darn's sake.<br /><br />Again, the only "compromise" I see is through private property rights. You all set up a bunch of Kibutzes for your collectivist strategies, isolate yourselves, and leave the rest of us real Americans the hell alone.<br /><br />Problem is liberals don't want to do that. They want to jam their communism down the throats of the rest of us.<br /><br /><span style="color:#3366ff;"><strong><span style="font-size:130%;">My comment:</span></strong><br /></span>I plan to send Eric a response to this last comment. But let me post this exchange so far and pick up my response in my next blog after he gets an opportunity to see my response.Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.comtag:blogger.com,1999:blog-666144648202060558.post-61378331923090132642010-08-14T10:14:00.000-07:002010-08-14T10:26:26.503-07:00The Tea Party Manifesto: Why The Tea Party Has It All Wrong.I recently received in an email a document called “Call To Action Principles of the Southwest Metro Tea Party Patriots” (August 4, 2010). There are so many mistaken assumptions in the Tea Party platform that it is hard to know where to begin a critique. Basically the Tea Party is wrong about most of its core assumptions about what freedom and liberty mean.<br /><br />The Tea Party’s core values, as defined in this call to action, are defined as:<br />• Constitutionally Limited Government<br />• Free Markets<br />• Balanced Budget and Minimal Taxation<br /><br />To summarize their convictions, Tea Partiers have written the following illustrating many of their major problematic assumptions. This is a quote from a much larger document but illustrates some of the fundamental assumptions of the party.<br /><br /><em>First God made the people. Then the people came to America and made the colonies. Then the colonies made the states. Then the states separated from the tyrannical British government and established a constitutional republic that guaranteed sovereignty of the people, which meant that government was the servant of the citizens.<br /><br />But the Founders sternly warned us about the consequences of losing a natural rights worldview should we begin to see the government <strong>as the source instead of the protector of liberty. They knew that to violate the morally absolute natural rights enshrined in the Declaration of Independence would be the death of freedom</strong>. [emphasis in original]<br /><br /></em>This short introduction to the Tea Party position illustrates a number of problematic assumptions.<br /><br /><strong><span style="color:#3366ff;">Principle: Liberty means only individual rights</span></strong><br />Not so. In fact, liberty was often tied into notions of social responsibility and public good. That part of liberty is generally absent or downplayed in Tea Party and Libertarian discourse. Notions of social responsibility and public good were central to the development of the idea of liberty in the seventeenth century, when the influential notions of natural rights were developed, and in the writing of the American founders. Liberty was never only about individual rights. Public good and social responsibility were themselves part of the liberty concept and understood to involve a sacrifice of individual rights for the larger good of society.<br /><br /><span style="color:#3366ff;"><strong>Principle: “First God made the people. Then the people came to America”</strong></span><br />Many Tea Partiers, though not all, assume that “liberty comes from God.” This is often another way of saying we have natural rights. Not all Tea Partiers or libertarians base their view of freedom on this religious basis. But many do and thereby smuggle in religion to their discussion of rights. The Tea Party Platform I have in front of me makes the clear link between religious conceptions and liberty conceptions.<br /><br />In fact, if Tea Partiers were really concerned about liberty they wouldn’t base everything on God. Not everyone believes in God and even those who do believe in God have very different notions of what that God is like. If Tea Partiers were really interested in individual rights they would not tie everything back to a Judeo-Christian view of God and instead find a worldview that was more inclusive, not only of other religions but the non-religious as well.<br /><br />Indeed, some religious Tea Partiers want to base their views on God because they want to link a libertarian set of views to their religious convictions. While there are other, economic and “consequentialist” ways of arguing for individual rights (e.g., Friedman and Hayek and others), many Tea Partiers want to tie their arguments back to God (not unlike John Locke, and some but not all of the founders). Ultimately they end up using the notion of liberty to help justify protecting a Judeo-Christian view of the world.<br /><br />Furthermore, the history of the liberty idea, which they generally ignore, shows that notions of individual liberty grew out of an attempt in part to make society more tolerant of religious diversity. The idea of natural rights, articulated by John Locke one prominent champion of natural rights in the seventeenth century, was a reaction in part to the disastrous Christian religious wars of the sixteenth and seventeenth century. The idea of natural rights was in part an attempt to explain how people who fundamentally disagreed with each other about God and salvation could manage to live together without killing each other. That was no small issue for Christians after the religious wars spawned by the Reformation.<br /><br />Yet the language of Tea Partiers, at least in this Southwest manifesto, ultimately abandons that view of tolerance and explicitly endorses a “Judeo-Christian” world view. “The principles in the Declaration of Independence and the symbols engraved on government buildings throughout Washington DC [sic] reflect a Judeo-Christian worldview. We pledge allegiance to divine providence and to our divinely inherited rights which government is legally required to protect, not usurp. We vehemently oppose secular humanism, nihilism, post-modernism…” A true endorsement of liberty could make room for atheists and people who don’t embrace a Judeo-Christian worldview. And it would also realize that our core notions of liberty developed in part under the influence of the modern enlightenment which was breaking out of the traditional Judeo-Christian worldview.<br /><br /><strong><span style="color:#3366ff;">Principle: The Founders Embraced Natural Rights (and only that view of rights)</span></strong><br /><br />Many Tea Partiers want us to believe that “the founders” had a single uncomplicated notion of natural rights. They often assume those natural rights came from God (hence the emphasis on God). There are a number of problems with this position.<br /><br />First, the founders themselves were not all of one mind on the matter of natural rights. I have written extensively about this in a series of essays on my Website (www.freedomandcapitalism.com) and a forthcoming book, <em>Jefferson, Natural Rights, and The Declaration of Independence</em> (Other Publications Press, forthcoming). The founders in fact had doubts about natural rights and they disagreed with each other on the foundation of America rights. In fact, Thomas Jefferson and his colleagues disagreed with each other about the foundation of American rights.<br /><br />Second, even if the founders did endorse natural rights, the very notion of natural rights itself is problematic. There are not a clear set of rights that everyone can or does agree upon. The original idea of natural rights, as articulated by Locke and others, assumes that natural rights are self-evident to Reason, and came from God. But both of those assumptions are problematic, as the history of Western Philosophy realized under the influence of many thinkers such as Hume, Kant and others just to name a few. Not all reasoning people come to the same conclusions about the origin or nature of rights and not everyone believes in God or, even if they do, embraces the same view of God’s nature.<br /><br />Third, it does not really matter what the founders thought anyway. The notion that the we should embrace the founders’ views simply because they were the founders is problematic. Not only was there a diversity of views among the founders, but ultimately many of the founders envisioned that the very notion of what the boundaries of rights would be would be subject to an evolving discussion. The ability to amend the constitution built into the founding framework the notion that our thinking about rights may change over time. One could in fact argue that the founders understood that the very boundary between government and individual rights was a constantly negotiated boundary.<br /><br />The upshot is that we cannot appeal to some generic view of natural rights that was embraced by the founders (there was no single view) and the notion of natural rights is problematic anyway and not a good foundation on which to discuss notions of rights. There is worthy of a much longer exposition than is possible here in this context.<br /><br /><strong><span style="color:#3366ff;">Principle: The Declaration Endorses Natural Rights<br /></span></strong><br />The Tea Party Call To Action writes as if God created humans and then Jefferson wrote the Declaration with nothing in between! There are three problematic assumptions in the Tea Party’s appeal to the Declaration to prove the founders endorsed natural rights.<br /><br />First, the Declaration actually papers over differences in the founders’ view of rights. There is clear evidence that many of the founders had doubts about natural rights theory and the idea of a social contract. Even Jefferson had an alternative view of rights that differed from and was rejected by his colleagues. There were in fact at least three or more fundamentally different views about the foundation of American rights. Jefferson’s view of rights, for example, was rejected by the First Continental Congress. Jefferson tried to get his view of rights back into the Declaration but it was rejected during the editing process. The result was that the Declaration actually hid complex disagreements among the founders on the nature of American rights. I’ve outlined these in my forthcoming book, <em>Jefferson, Natural Rights, and the Declaration</em> (Other Publications Press, forthcoming).<br /><br />Second, it is not at all self-evident that the Declaration should be the basis of the view of rights in the United States. The Declaration declared that the colonies should become independent political states. The Declaration did not envision that there would be a United States under Federal powers.<br /><br />The notion of a “United States”, which would have Federal powers beyond the states, was not fully defined until the Constitutional Convention of 1787. The views in that Convention, much more than the Declaration, should define the notion of rights by which we understand the Constitution. In those debates, there was clearly a winning view that the Articles of Confederacy were too weak and that stronger Federal powers were needed. That was the primary drive to adopt a United States Constitution and that view was ratified by the states. The Constitution therefore marked a transition to a view that the Federal government had to be stronger than it had previously been under the Articles of Confederation. Not all agreed with this view as is evident in Madison’s <em>Notes on the Convention</em>. But the Constitution was ratified and therefore the views prior to the Constitution, such as the Declaration, are arguably irrelevant to the United States definition of rights.<br /><br />Third, it is arguable that the very notion of what rights to be protected was always something that was understood to be evolving and that the Constitution itself protects a process that allows the very definition of rights to evolve. There is after all a process in the Constitution for changing it. And the very boundaries between what government can do is always defined in part by a process between the legislative and judicial branches. If that is so, then a specific notion of rights, such as “natural rights”, is itself up for grabs in the political process. There is no single founders’ view of rights that we have to adapt and instead we are thrown back to the values by which people want to live in social life. Those values evolve and change. But the Tea Partiers are claiming, not unlike religious fundamentalists, that the founders’ intent has to somehow define the way we define liberty. Ultimately in a free society the very notion of where to draw the boundary between government intervention and individual freedom is itself part of the liberty that is granted to people in society.<br /><br /><strong><span style="color:#3366ff;">Principle: Liberty means limited government</span></strong><br /><br />The matter is much more complex than this. The Tea Partiers assume that liberty implies limited government. But that is not what liberty always has or necessarily should mean.<br /><br />If one reads the classic sources on liberty, such as John Locke, one realizes that a very different notion of liberty is operative. Locke, by the way, is important because he is often cited as having articulated the classic view of natural rights and the Tea Partiers assume that our country was founded on a vision of natural rights.<br /><br />So if that is so, it is surely interesting that Locke has a more complex different notion of liberty. For Locke, people not only are protected by government but they have to give up some of their liberty to enter into political societies. This was a key part of Locke’s social contract that most Tea Partiers seem to overlook or ignore. According to Locke, one relinquishes some of one’s original liberty when one chooses to live in a society or join the social contract. In entering into a social contract with others, one agrees to abide by the decisions of the majority in exchange for the benefits of society including the protection of one’s life, liberty and property. In Locke’s view, the social contract involves a trade. One gives up something (some of one’s freedom) for the benefits one gains by living in society. In this view, liberty comes with shared responsibility for others.<br /><br />Locke argues that natural rights mean that “no one ought to harm another in his life, health, liberty, or possessions.” (Second Treatise 2, 6). It is clear that Locke has a more expansive notion of natural rights than we typically hear from Tea Partiers or Libertarians. He includes “health” in his list of natural rights. Where was that in the discussions of the health care bill?<br /><br />Furthermore, Locke acknowledges that one has to pay taxes. If one took a strict view that government should not infringe on our rights at all, then there should be no taxes whatsoever. But if that were so there could be no government either. Government cannot exist without taxes. For Locke, taxes are set by the will of the majority. Therefore, in Locke’s view, there is no difference in the amount of liberty one has if one is taxed a dollar or 10,000 dollars as long as the majority set the taxes and the decision was based on a form of representation.<br /><br />This is because Locke realized that ultimately one cannot define in advance what a given society will define as liberty. Whether the government should build missiles, pave roads, provide healthcare, support a judicial system, regulate commerce, manage a “standing army” are all notions that change over time and based on values. The founders’ complaint against the British Parliament was similar in the period before Independence. They complained because they were taxed without representation. They did not complain about being taxed in general.<br /><br /><strong><span style="color:#3366ff;">Principle: Liberty is the same thing as free markets</span></strong><br /><br />Not so. This is the second frequent justification of liberty. The view that liberty necessarily implies free markets is a view that has been articulated by Milton Friedman and Frederick Hayek, among others. According to Friedman, economic liberty is part and parcel of liberty. It is part of liberty by definition.<br /><br />But this view is wrong in a number of respects. First, it mixes up the question of individual liberty with the question of institutional regulation. Regulating an institution and the economy is not the same thing as imposing rules on individuals. The founders were fighting for economic liberty from the British government and from a Parliament in which they did not have representation. They never said that their own governments in which they had representation couldn’t set limits on trade. And one of the drivers from the Articles of Confederation to a United States Constitution was the problem of regulating trade among the colonies.<br /><br />Second, the view that “liberty = free markets” prescribes a particular view of what liberty means. But liberty itself protects our very right to debate the very question of where the line between government and individuals should be drawn. That question is ultimately a value judgment as to what is good for the maximum number of people. Some economists believe that free markets generate the most benefit for the most people. But not even all economists agree with that view.<br /><br />In any case, that question – “what does liberty mean”- should ultimately be decided by democracies, not imposed by government itself. Therefore the amount of government control in an economy is not an infringement of individual liberty but a decision that is and should be made within a liberal society. To prescribe a predefined answer to that question, as Tea Partiers do, is ultimately to take away the very liberty they claim they want to defend. The question is always what values should define that boundary between the public good and individual rights.Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.com12tag:blogger.com,1999:blog-666144648202060558.post-21255163817586186352009-12-25T11:59:00.000-08:002009-12-25T14:24:51.207-08:00More Second Amendment background: Debate on the Power over the militia in the Federal Convention of 1787<em>“As the greatest danger is that of disunion of the States, it is necessary to guard agst it by sufficient powers to the Common Govt and as the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia.” (James Madison, Notes of Debates in the Federal Convention, 561).</em><br /><br />I have argued in <a href="http://libertyandcapitalism.blogspot.com/2009/12/right-to-bear-arms-virginia-jefferson.html">earlier blogs</a> that in the State Constitutions in the period leading up to the United States Constitution there was very little concern with an individual right to bear arms. The States were instead worried about articulating their right and duty to have a militia with the implied ability to be able to press individuals into military service. Because the State as a political entity was understood by to have been formed to give safety to individuals, among other things, the founders understood that State had an obligation to provide security and defense of its citizens. But the State could only do so if it had a right to press people into military service, in what was called “a militia”, to distinguish it from a permanent “standing army” which was thought dangerous to liberty. If the State didn’t have that right, it could not execute its obligation to defend people. <br /><br />In trying to decide whether the Second Amendment as formulated in the Bill of Rights had a focus on the right of individuals or the State’s right to have a militia (a topic on which <a href="http://libertyandcapitalism.blogspot.com/2009/10/it-is-time-to-take-away-guns.html">I blogged earlier</a>:, it is important to consider the discussion of the militia in the Convention that drafted the Federal Constitution in 1787, which took place between May and September of that year. It was in that context that the Constitution was developed and against which the Bill of Rights which followed a year after the Constitution’s ratification was framed. <br /><br />One would think that if the founders were concerned about an individual’s right to bear arms that it would have surfaced during the Convention’s discussion of those powers that were being contemplated for the new national government. In fact, that topic never surfaced. However, there was discussion about how the newly envisioned national government would defend itself and what role the State militias would play. <br /><br />But that discussion principally concerned the tension between the States’ powers over the militia and the powers of the new national government that was being envisaged. This focus suggests that what was really at stake was the boundary between National and State powers, not between national and individual rights. And it is reasonable to conclude that the Bill of Rights was meant to address that fear, rather than the worry over individual rights. Let’s take a look at the details of the debate during the Convention.<br /><br /><strong>The Right to Bear Arms at the Federation Convention </strong><br /><br />The issue of armed forces was a critical issue for the drafters of the Constitution. Indeed, the earlier Confederation had serious weaknesses in providing for security and was one reason why a new constitution was considered critical to many. The Confederation was in essence a treaty or alliance of independent States that agreed they had shared interests that was expressed in the Articles of Confederation. But the Confederation had no power to enforce compliance from the States. The result was that during the revolutionary war with Great Britain, General Washington was repeatedly complaining because the army could not muster enough supplies, arms or even troops. <br /><br />As Edmund Randolph explained at the start of the Federal Convention, “The Character of such a government ought to secure I. against foreign invasion…” And one of the defects of the Confederation was that the “confederation produced no security against invasion, congress not being permitted to prevent a war nor to support it by their own authority…” Another defect was “that neither militia nor draughts [i.e. military drafts] being fit for defense on such occasions, inlistments only could be successful, and these could not be executed without money. (“that neither militia nor draughts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money.” See 29 <br /><br />Because of these defects, one of the critical goals of the Convention was to draft a revision or replacement for Articles of Confederation that would give the United States power to defend itself against its enemies. It is important to understand what the Articles of Confederation had to say about defense and the militia to understand the context of discussion in the Federal Convention. <br /><br /><br /><strong>Militias and Defense Under the Articles of Confederation</strong><br />According to Article III of the Articles of Confederation, “The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.”<br /><br />The Articles thus made security and defense a central goal of the Confederation. The act of War was dependent on the Congress of the United States. Essentially, the Articles of Confederation rested on the following principles:<br />• The States could not engage in war without the consent of the United States as expressed in the Congress<br />• The militias of the States brought together for common defence would provide the basis for armed defense. <br />• The responsibility for training, arming and disciplining the militias was left in the hands of the States <br />• The States also appointed the officers of the militias. <br />• The United States would defray the cost of common defense which it would raise by levying taxes on the States. <br /><br />In language familiar from the second amendment and State Constitutions, the Articles of Confederation explicitly state that <br /><br /><em>every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed [i.e., “field”] pieces and tents, and a proper quantity of arms, ammunition and camp equipage</em>.<br /><br />The relevant articles of Confederation are included at the bottom of this blog for those who are interested in reading the original. It is against this background that the discussion of defense and the militia in the Federal Convention has to be understood. <br /><br /><strong><br />The Discussion of Militia in the Federal Convention</strong><br /><br />In the Virginia Plan for the Constitution that Edmund Randolph proposed at the start of the Convention, the first Resolution states that the “Articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely, ‘common defence, security of liberty and general welfare.’” But the Virginia Plan did not specify explicit powers that the general legislature would have and gave only vague powers that would later be enumerated during the Convention. The 6th resolution of the Virginia Plan said the National Legislature “ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompent or in which the harmony of the United States may be interrupted by the exercise of individual Legislation;...” (30-31) <br /><br />The Virginia plan therefore did not explicitly change the way in which the national government would organize the military or armed forces. But as the convention continued, those powers would be enumerated and discussion would take up the issue of armed forces and common defense. <br /><br />Influential on that discussion, was a second plan submitted at the start of the convention, by General Charles Cotesworth Pinckney (spelled “Pinkney” in Madison’s notes) from South Carolina. The Pinckney plan enumerated the powers of the general legislature. In language that would be picked up later in the Convention, the Pinckney plan stated that: “The Legislature of the United States shall have the power …<br /> <br />• To raise armies <br />• To build & equip Fleets<br />• To pass laws for arming organizing & disciplining the Militia of the United States” <br />• To call forth the aid of the Militia to execute the laws of the Union enforce treaties suppress insurrections and repel invasions…<br />• And to make all laws for carrying the foregoing powers into execution. “<br /><br /><br />We shall see that the powers defined by the Pinckney plan become the beginning of a framework which is further detailed later in the Convention. The Pickney plan gave the national government power to raise an army and to call forth the aid of the militias. But it did not yet give any power to the national entity for controlling, disciplining or arming the militia. <br /><br />As the Convention proceeded, discussion would focus on how to balance the powers between the national legislature and the States. On June 15th William Peterson introduced the New Jersey plan as an alternative to the Virginia plan submitted at the beginning of the Convention. New Jersey plan left the arming and disciplining of the militia pretty much as it was in the Articles of Confederation and added on this change: “the federal Executive shall be authorized to call forth ye power of the Confederated States, or so much thereof as may be necessary to enforce and compel an obedience to such Acts, or an observance of such Treaties.” (121)<br /><br />If the New Jersey plan represented one end of the sprectrum on the question of the militia and security, Alexander Hamilton voiced the view at the other end of the spectrum when he gave his speech criticizing the plan. Hamilton had stayed relatively quiet until this point of the Convention. Laying out a more “national” approach, Hamilton proposed that all power to control the militias be shifted to the national government entirely for control of the militia: <br /><br />XI. No State to have any forces land or Naval; and the militia of all the States to be under the sole and exclusive direction of the United States, the officers of which to be appointed and commissioned by them. (131)<br /><br />Hamilton’s lengthy speech was ignored in the discussion that followed the introduction of the New Jersey plan. But as is evident later in the Convention there were other delegates like him who thought that the power over the militia should be shifted to the national government and away from the States. <br /><br />As work during the Convention proceeded, the precise balance of powers between the national government and the States on the issue of armed forces would arise again and a kind of compromise would be worked out between those who favored control at the national level and those who felt the States much retain control. <br /><br />On August 6th a Committee of Detail submitted an updated draft of the Constitution based on discussions over the previous two months and included an article enumerating the powers of the national legislature. The language indicates the influence of the Pinckney Plan: <br /><br />Article VII, Section 1: The Legislature of the United States shall have the power….<br />To make war: <br />To raise armies; <br />to build and equip fleets; <br />To call forth the aid of the Militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections and repel invasions. (389)<br /><br />At this point in the convention, the national Legislature could raise armies and could call forth the aid of the State militias, but had no power to regulate or discipline them. <br /><br /><br /><strong>Mason’s resolution and the debate over state and national power over the militia</strong><br /><br />On August 18th nearly three months into the convention, the military powers of the national legislature became the focus of discussion. On that day, Madison was listing additional powers that the Committee of detail should consider for the National Legislature. In his list, Madison gives the Executive the right “to procure and hold for use of the U.S. landed property for the erection of Forts, Magazines, and other necessary buildings.” (477) <br /><br />At this point, Virginia’s George Mason introduced the question of the militia and suggested that the General Legislature be given “the power to regulate a militia.” In the August 6th draft from the Committee of Detail, the legislature had been authorized only to “To call forth the aid of the Militia” not “to regulate” it, as Mason was proposing. (478). It is interesting that it was George Mason who made the proposal to add regulation of the militia to the national powers, for throughout the Convention Mason was a proponent of the importance of States’ retaining their identities and powers. For several reasons, however, Mason thought this power should reside with the National Government and not the states. Like most other attendees at the Convention, Mason felt strongly that there should be no “standing army” in times of peace, a <a href="http://libertyandcapitalism.blogspot.com/2009/12/right-to-bear-arms-virginia-jefferson.html ">worry expressed frequently </a>in the State Constitutions in the period between the Declaration and the Constitution’s ratification and in the discussion at the Convention, as we shall see. <br /><br />But Mason also thought leaving the militias entirely in the hands of the States would not ensure that the United States would be ready to defend itself. “The militia ought therefore to be the more effectually prepared for the public defense.” But Mason realized that the “ Thirteen States will never concur in any one system, if the displining [sic] of the Militia be left in their hands.” Mason therefore argued that the power should reside with the legislature of the general government. At the same time, Mason acknowledged that the States wouldn’t give up the power over the whole militia, but “they probably will over a part as a select militia.” <br /><br />The key challenges then was to securely defend the common interests of the United States while, on the one hand, not creating a permanent standing army and yet, on the other hand, ensuring that the militias of the States would be disciplined, armed and ready for war. <br /><br />Mason was essentially proposing a kind of compromise between State and National power over the militia. He recognized that the National government needed the power to muster troops and ensure they were disciplined and armed for common defense. But he did not want to take away all of the control over the militia from the States. <br />A couple days later while discussing the same topic, James Madison expressed the issue perhaps most succinctly of anyone: “As the greatest danger is that of disunion of the States, it is necessary to guard agst it by sufficient powers to the Common Govt and as the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia.” (516)<br /><br />As the discussion unfolded on that first day of discussion, it became clear that the precise balance of power between the national government and the State governments was of deep concern to many with no easy agreement on exactly how to balance those powers. For example, there was a fear expressed by Elbridge Gerry from Massachusetts (481) that the proposed Constitution had no check against a permanent standing army. Gerry would later be one of three representatives who didn’t sign the Constitution because it lacked a bill of rights. If there were no check, he argued, “The people were jealous on this head, and great opposition to the plan would spring from such an omission.” (482) Along with Alexander Martin from North Carolina, Gerry proposed that there should be a clause added to the resolution setting a maximum limitation of a few thousand troops that could be maintained in times of peace. <br /><br />A lively discussion then ensued in which General Pinckney from South Carolina questioned whether there might not be a need to ready troops in times of peace. If they weren’t prepared in times of peace, they wouldn’t be ready in times of war. But Gerry worried that if that were the case a few States might “establish a military Govt.” <br /><br />Hugh Williamson from North Carolina reminded Gerry that an earlier resolution from Mason had guarded against such a possibility of a military government by limiting the appropriation of revenue to two years at any given time for the provision of the army (see 479). But Jonathan Dayton from New Jersey reiterated Pinckney’s view that “preparations for war are generally made in times of peace” and argued that a standing army may be unavoidable. After discussion there was unanimous rejection of Gerry’s and Martin’s proposal to limit the size of troops in times of peace (482). The Convention sided with giving the national government power to decide the size of troops in times of peace. <br /><br />Mason then suggested adding additional language to his original resolution enabling the general legislature: “to make laws for the regulation and disciplining the militia of the several States reserving to the States the appointment of the officers.” Mason’s concern was that “he considered uniformity as necessary in the regulation of the Militia throughout the Union.” In his original resolution, the national legislature had the power “to regulate a militia”. Now Mason was adding an additional power “to make laws for regulating and disciplining” the militia. Mason was suggesting that the national government would not only “regulate” but also discipline. General Pinckney from South Carolina concurred and mentioned a case in which lack of uniformity during the revolutionary war has producted problems. “Uniformity was essential.” <br /><br />Yet others such as Oliver Ellsworth from Connecticut thought Mason was going too far in giving the general legislature too much power. Ellsworth would be on the Committee of Detail that would produce a draft of the final language describing the balance of federal and state power on the issue of the militia. He worried that “the whole authority over the Militia ought by no means to be taken away from the States whose consequence would pine away to nothing after such a sacrifice of power.” “It must be vain to ask the States to give the Milita out of their hands.” 483 Sherman from Connecticut seconded Mason’s revised motion. <br /><br />John Dickenson from Pennsylvania agreed that “the States never would nor ought to give up all authority over the militia.” Picking up on an earlier suggestion of Mason, he proposed to “restrain the general power to one fourth part at a time, which by rotation would discipline the whole Militia.” (483) But Pierce Butler from South Carolina disagreed that the power should be subdivided between the national and State governments and “urged the necessity of submitting the whole Militia to the general Authority, which had the care of the general defence.” This was a position that Hamilton had suggested earlier and that had been voiced by Pinckney already. <br /><br />Mason then reminded his colleagues that he had been the one to originally suggest the idea that the States would give up control “over a part as a select militia.” He reiterated his view the General Government could, however, manage only a part of the militia. And he was also “afraid of creating insuperable objections to the plan” if the power was shifted entirely to the national government. Therefore Mason withdrew his original proposal to give the national government “power to regulate a militia” and modified it this way: “to make laws for regulating and disciplining the militia, not exceeding one tenth part in any one year, and reserving the appointment of officers to the States.” (483-4). <br /><br />But General Pinckney from South Carolina, who preferred more power with the national government, renewed Mason’s original proposal which assumed that General government would regulate the whole militia. John Langdon from New Hampshire seconded Pinckney’s motion. He “saw no more reason to be afraid of the Genl Govt than of the State Govt. He was more apprehensive of the confusion of the different authorities on this subject, than of either.” (484)<br /><br />Discussion now turned to the two resolutions on the table. At this point Madison chimed in that he thought the “regulation of the Militia naturally appertaining to the authority charged with the public defence. It did not seem in its nature to be divisible between two distinct authorities” thus supporting the idea of moving more power to the national body.<br /><br />Given that Madison is the one who drafts the second amendment it is interesting to see him favoring the power of regulation to reside with the general government and not the States. Ellsworth thought the idea of select militia responsible to the general government impractical. He also thought the states would refuse to submit to the same militia laws. <br /><br />General Pickney thought the states would see the “necessity of surrendering” the power. But he didn’t think control over the militia would solve the problem. He had “a scanty faith in the Militia” and thought “there must be also a real military force.” In Pickney’s view, there would need to be something more than a disciplined militia. “The United States had been making an experiment without it, and we see the consequence in their rapid approaches towards anarchy.” (484)<br /><br />But Sherman from Connecticut reminded his colleagues that the states would want their own Militia for defence against invasions and insurrections as well as enforcement of laws. “He had no such confidence in the Genl Govt. as some gentlemen professed, and believed it would be found that the States have not.” <br /><br />Mason thought Sherman made a good point and suggested an additional exemption be added to his resolution “of such part of the Militias as might be required by the States, for their own use.” George Read, from Delaware, doubted the propriety of leaving the appointment of the Militia officers in the states since the States have different methods of appointing the officers. <br /><br />The day ended without a decision. There was a definite sense that “standing armies should be avoided” as threat to liberty. And many thought that leaving the States with control over the militia would leave the country vulnerable without a well-furnished armed force. But the precise distribution of power between States and National government was not resolved. A majority of eight States voted to submit the two resolutions to the Committee of Eleven (also called “the grand Committee”) to come back with a revised proposal. (485) The Committee of Eleven consisted of King, Sherman, Yates, Brearly, Govenor Morris, Read, Carroll, Madison, Williamson, Rutledge and Houston <br /><br />On Monday August 20th, while the Committee of Eleven was out working on the language of two resolutions, General Pinckney submitted to the Committee of the whole a number of propositions he wished the Committee of Detail to consider. The list is interesting because it is in part a “bill of rights.” It includes:<br />• The liberty of the Press shall be inviolably preserved<br />• No troops shall be kept up in time of peace, but by consent of the Legislature. <br />• The military shall always be subordinate to the Civil power, and no grants of money shall be made by the Legislature for supporting military Land forces, for more than one year at a time<br />• No solider shall be quartered in any House in time of peace without the consent of the owner.<br /><br />No mention was made of an individual right to bear arms in this list. But it did touch on limitations to the standing armies and the subordination of the military to civil powers, language familiar from the State Constitution. The discussion of the military was tabled as the House as a whole waited for the report of the Grand Committee of eleven. <br /><br /><strong>The Committee of Eleven Reports</strong><br /><br />The Committee of eleven reported on Tuesday August 21st (494) on two resolutions that it had worked on. The second resolution involved the militia. It came up with the following language that picks up Mason’s language. <em>The Legislature shall have power…</em><br /><em>To make laws for organizing arming and disciplining the militia, and for governing such part of them as may be employed in the service of the U.S. reserving to the States respectively, the appointment of officers, and the authority of training the Militia according to the discipline prescribed by the U. States.</em><br />The discussion of this resolution took place on Thursday August 23. Initially, the discussion focused on the resolution’s language. Mason had already introduced the language of “regulating and disciplining” and the committee had added the language of “organizing” and “arming” and “training.” It also picked up Mason’s idea that the national government should regulate only a part of the militia, but didn’t try to say what percentage should be under national control. <br /><br />Sherman thought the inclusion of “training” redundant since the States had this authority already. (Sherman was on the committee?)Why give them something they have already? But Ellsworth noted that the same was true of the appointment of officers. He thought the word “disciplining” might be too vague and include almost any power. King, who had been on the committee of eleven, clarified the intent of the committee explaining that “by organizing the committee meant, proportionizing the officers & men-by arming, specifiying the kind size & caliber of arms-& by disciplining prescribing the manual exercise evolutions &c.” (513) <br /><br />The initial discussion of the resolution’s language provoked a discussion on whether too much power was being allocated to the general government. Gerry thought the States were being treated merely like “drill sergeants” meaning that they were just the vehicle of implementation but lacked the real power. “It would be regarded as a system of Depotism.” <br /><br />But Madison noted that “arming” did not seem to include “furnishing arms” and “disciplining” did not seem to include court marshall. But King, who spoke for the committee, said that “arming” meant, not only uniformity of arms, but authority to regulate the modes of furnishing the arms. <br /><br />Two alternative versions of the resolution were proposed. The first by Dayton was voted down and not discussed. The second, by Ellsworth and Sherman, proposed substitute language that reduced the power of the National government <br /><br /><em>To establish an uniformity of arms exercise & organization for the Militia, and to provide for the Government of them when called into the service of the U. States.</em> <br /><br />As they explained, this version would “refer the plan for the Militia to the General Govt but leave the execution of it to the State Govt.” This version would make the general government have power when the Militia were called into service but not during times of peace. The general government would only set uniformity but “not make laws” nor “govern”. <br /><br />Langdon couldn’t understand his colleagues were debating the power of the general government. “The General & State Govt were not enemies to each other, but different institutions for the good of the people of America. As one of the people he could say the National Govt is mine, the State Govt is mine. In transferring power from one to the other, I only take out of my left hand what it can not so well use, and put it into my right hand where it can be better used.” 514. <br /><br />But Gerry who favored States rights thought “it was more like taking out of the right hand and putting it into the left,” the left hand representing the national government and being less coordinated in a right-handed person. Dayton even objected to uniformity. “In some States there ought to be a greater proposition of cavalry than in others.”<br /><br />But General Pinckney preferred the language of the Committee. Madison also argued that if the militia was left in the hands of the States it would be ineffective. <br /><br />The primary object is to secure an effectual disciple of the Militia. This will no more be done if left to the Sates separately than the requisitions have been hitherto paid by them. The States neglect their militias now…The Discipline of the Militia is evidently a National concern, and ought to be provided for in a National Constitution. (514-15).<br /><br />Luther Martin from Maryland reiterated the confidence of some that “the States would never give up power over the Militia; and that, if they were to do so the militia would be less attended to by the Genl than by the State Governments.<br /><br />Randolph, who had first proposed the Virginia plan, countered Martin saying there was no worry that the militia would be brought out by a national power and “made to commit suicide on themselves.” In other words, the militia could not be turned against their own constituents. The very nature of the militia being drawn from the people prevented this. While in general he was for “trammeling the Genl Govt wherever there was danger, but here there could be none. Furthermore, “the Militia were every where neglected by the State Legislatures, the member of which courted opularity too much to enforce a proper discipline.” <br /><br />At this point the States voted down the alternative wording of Ellsworth’s resolution. But theStates did agree in a vote of 9-2 to the first part of the resolution. “ To make laws for organizing arming & disciplining the Militia, and for governing such part of them as may be employed in the services of the U.S.” <br /><strong><br />On the appointment of officers</strong><br />With the first clause of the Committee approved, attention turned to the second “reserving to the States respectively, the appointment of officers, and the authority of training the Militia according to the discipline presecribed by the U. States.” <br /><br />Madison tried to limit the States power to appoint officers to those “under the rank of General officers.” 515 trying to enlarge the power of the national government over the discipline of the militia. But Shermand and Gerry countered. Sherman said every man of discernment would raise the alarm over this power. Gerry for his part said such powers would only make sense where the State Governments were being abolished. “He warned the Convention agst pushing the experiment too far. Some people will support a plan of vigorous Government at every risk. Others of a more democratic cast will oppose it with equal determination, and a Civil war may be produced by the conflict.” 516. <br /><br />Madison responded to these criticisms by reminding his colleagues that <br /><br /><em>As the greatest danger is that of disunion of the States, it is necessary to guard agst it by sufficient powers to the Common Govt and as the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia.” (James Madison, Notes of Debates in the Federal Convention, 561).</em><br /><br />But Madison’s proposal was voted down, 8-3 showing the inclination to protect State power over the militias through the appointment of officers. With that the Convention approved the second clause giving the state power to appoint all the officers. <br /><br />This concluded the discussion of the miltia and the balance of powers between the state and national government. Essentially, the resolution would remain the same in the final version of the Constitution presented by the committee of style on September 12th. That draft read as follows: <br /><br />Article I, Section 8: The Congress …shall have the power<br />• To lay and collect taxes, duties, imposts, and excises; to pay the debts and provide for the common defence and general welfare of the United States….<br />• To declare war, grants letters of margue and reprisal, and make rules concerning captures on land and water.<br />• To raise and support armies: but no appropriation of money to that use shall be for a longer term than two years.<br />• To provide and maintain a navy.<br />• To make rules for the government and regulation of the land and naval forces.<br />• To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions. <br />• To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress. <br />….<br /><br />Article I, Section 10:<br />No state shall, without the consent of Congress, lay imposes or duties on imports or exports, nor with such consent, but to the use of the reasury of the United State. Nor keep troops nor ships in war in time of peace nor enter into any agreement or compact with another state, nor with any foreign power. <br /><br />Conclusion<br />We see in the debates in the Convention no worry at all about the right of individuals to bear arms. From the debate in the Federal convention, it appears that the critical issue regarding the militia was the balance of national and state control. Most everyone agreed that a standing army was a threat to liberty of individuals. And while the national government had a power to raise armies, it could not maintain them continuously. It would have to get the legislature to appropriate funds for an army every two years. That restriction effectively gave members of the Convention confidence that the army would not be a permanent standing army. But to provide for common defense, something better than the ad hoc training of militias was needed. Here there was substantial debate on how much control to place in the national government. Effectively a compromise was worked out, with the national government having the power to discipline, arm and set rules for training the militia. But national government would only have power over a part of the militia (the exact percentage left undefined) and the States would retain the power to appoint the officers of the militia. <br /><br /><br />References:<br /><br />James Madison, Notes on the Debates in the Federal Convention of 1787. New York: Norton. 1966.<br /><br />Bowen, Catherine Drinker. Miracle at Philadelphia. 1986.Boston: Little Brown and Company. <br /><br />(For the Pickney plan, see James Madison, the Writings, vol. 3 (1787 [ 1902] The Online Library of Liberty. A Project of the Liberty Fund, 23.<br /><br />Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937. See online: http://memory.loc.gov/ammem/amlaw/lwfr.html<br /><br /><br /><strong>Appendix</strong><br />Articles of Confederation related to armed forces, defense and the militia:<br /><br />Appendix<br /><br /><br /><br />Article VI put it, “No state shall engage in any war without the consent of the United States in Congress assembled, unless such state be actually invaded by enemies…” <br /><br />Article VI…..<br /><br />No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed [i.e., “field”] pieces and tents, and a proper quantity of arms, ammunition and camp equipage.:<br /><br />VII.<br />When land forces are raised by any State for the common defense, all officers of or under the rank of colonel, shall be appointed by the legislature of each State respectively, by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment.<br /><br />VIII.<br />All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.<br /><br />The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time<br />agreed upon by the United States in Congress assembled.<br /><br />IX.<br />The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article ….Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.comtag:blogger.com,1999:blog-666144648202060558.post-71590527548727438922009-12-04T09:32:00.000-08:002009-12-04T16:16:03.303-08:00The Right to Bear Arms: Virginia, Jefferson and the State ConstitutionsWe have seen in earlier blogs that the right to bear arms is connected to the State’s right to marshal a militia for the security of the state:
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<br /><em>"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."</em>
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<br /><span style="font-family:verdana;font-size:85%;">This is the amendment that was approved after the Constitution was ratified. But what was the thinking in the States about the militia and this right before the Constitution was ratified? Were state governments worried about this right to bear arms? This is a good question to ask because the States were believed by many to be closer to “the people” and therefore to be better at protecting their rights. For example, during the debates in the Convention that created the Constitution, Oliver Elseworth, the representative from Connecticut said, “The states are the best Judges of the circumstances & temper of their own people.” (<em>Notes on the Federal Constitution</em>, 401).” This view that States were closer to the people is why anti-Federalists argued that the States should preserve their sovereignty and that the Federal government should not have too strong a set of powers. It is thus interesting to find that the State constitutions that were written between the Declaration of Independence and the ratification of the Constitution, and should have been “closer to the rights of the people”, are conspicuously silent or ambiguous on the individual right to bear arms. None of them seem concerned about it. What that means for the debate about the second amendment, is a matter we will come back to. </span>
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<br /><strong>Militias, State Constitutions and the Right To Bear Arms</strong>
<br />It is interesting to find that the State constitutions do not mention a right to bear arms. Indeed, many of the State constitutions don’t talk about individual rights at all and focus instead on the structure of the legislature, executive and judiciary only. Of those that mention arms, most do so in the context of talking about the need for a militia. None mention the individual right to bear arms.
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<br />Let’s look at some examples. Perhaps the most relevant is the Virginia State Constitution from Madison’s home state.
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<br />Constitution of Virginia (June 29, 1776):
<br /><em>That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.</em>
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<br />Virginia, Madison's home state, approved its Constitution shortly before the Declaration of Independence by the colonies. The Virginia Bill of Rights was written by George Mason and approved on June 12, 1776 and became the preamble of the Virginia Constitution which was approved on June 29, 1776. The Virginia Bill of Rights latter influenced many of the subsequent State constitutions and seems to have directly influenced Madison’s version of the Bill of Rights he submitted to Congress over a decade later.
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<br />The language and assumptions of the Virginia Constitution anticipate both the Federal Constitution and the Bill of Rights. And since Madison was from Virginia, and was a drafter or the Bill of Rights, we may assume that the Virginia language did influence him. But there are also some very interesting differences between these various versions.
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<br />Let’s start with the ideas that are consistent from the Virginia Constitution to the Federal Constitution and Bill of Rights….
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<br />First is the idea that a non-professional military (“a militia”) is critical for the security of the state. We also see here the familiar assumption then that a "standing army" (or full-time professional army) was considered dangerous to liberty. The idea was that regular people, who were engaged in everyday life (not “professional military” ) should be trained for military service. Since they were not professional military, they were not going to be coopted by the political powers and turned against the liberty of the local populations. While the Virginia constitution does not say the state may press persons into military service, that would seem to be an implicit implication. For if the State must have a non-professional, non-permanent militia, how else shall it ensure one? We shall see that other states make explicit the fact that the state can conscript people into militia duty.
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<br />The Virginia State Constitution therefore is focused, not on individual rights, but on the right of the State to defend itself and may have a well-regulated militia to do so. The logic of the Virginia Constitution seems to be this: People come together into a state for security and protection as a significant motivator. The State therefore needs to provide protection since that is one of its purposes. A professional army is a danger to liberty, because it comprised of people who may not be local residents and can be used by the political state to take away liberty. A military force therefore must come from the local people, themselves, or a “militia.” The State therefore has the right to enlist people into military service. The Virginia Constitution therefore focuses on protecting the right of the state to enlist and train a body of people for military service. In Madison's home state, therefore, and in the Bill of Rights he likely was influenced by, we see no mention of an individual right to bear arms. On the contrary, we see what looks like a protection of the State’s obligation to have a militia and the right to force individuals into military service.
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<br />One could, I suppose, argue that there was no reason to mention the right to bear arms in the Virginia Constitution since it was taken for granted that Virginians were gun owners at the time. But the Virginia Bill of Rights goes out of its way to protect and call out individual rights in general, such the right to a free press, religious conscience, the right to jury and so forth. Thus the fact that neither the Virginia Bill of Rights nor the Virginia Constitution make mention of the individual right to bear arms is arguably significant. This absence suggests that the Virginia legislatures did not conceive of gun possession as a right on the same level as free press and religious conscience.
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<br />The language of the Virginia Constitution anticipates both the language and the assumptions of the current second amendment with some significant differences.
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<br />(Virginia State Constitution):
<br /><em>That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State…</em>
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<br />(Madison’s version of the amendment as proposed to Congress):
<br /><em>the right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country;</em>
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<br />(Approved Second Amendment):
<br /><em>A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."</em>
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<br />Note how the current Second Amendment and the Virginia constitution both start with the need for a well-regulated militia being critical for the security of the state. But the Virginia Constitution says nothing about the right of the people to bear arms, whereas the approved second amendment does. That could be because the approved second amendment is conferring a right to individuals. But it could be, as I’ve discussed elsewhere, because “the right of the people” is a way of talking about the States right to conscript people into the military.
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<br />While the Virginia Constitution and Virginia Bill of Rights made no explicit provision for an individual right to bear arms, it is interesting to see that Thomas Jefferson, another Virginian who was distinguishing himself at the time, did think there were was an individual right to bear arms. Jefferson, of course, would go on to be a very close colleague of James Madison and we know that Madison and Jefferson corresponded later about the Bill of Rights.
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<br />At the time the above Virginia Constitution was drafted, Jefferson was in Philadelphia at the Second Continental Congress starting to draft his Declaration of Independence. Ironically enough, Jefferson at the time actually wanted to be back in Virginia so he could participate in the drafting of the Virginia State Constitution. But he had to take his turn in Philadelphia at the Congress to cover his more senior colleagues who returned to Virginia to draft the State Constitution. As luck would have it, this is when Jefferson was assigned to write the Declaration of Independence (for a discussion see my Jefferson, Natural Rights, and the Declaration of Independence, forthcoming).
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<br />In any case, while in Philadelphia, Jefferson wrote out what he considered a draft constitution for Virginia. But his draft arrived late in Virginia and while it did influence the condemnation of Great Britain and King George, his version of the State laws did not significantly impact the Virginia Constitution. But Jefferson did have something to say about the right to bear arms in his drafts of the Virginia Constitution. Let’s see how Jefferson thought about the matter in 1776. The brackets indicate language that Jefferson first wrote and then deleted as he reworded the language.
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<br />First Jefferson draft for the Virginia Constitution:
<br /><em>No freeman shall ever be debarred the use of arms.<no> there shall be no standing army but in the time of <peace>actual war</em> (see Boyd, The Papers of Thomas Jefferson, I:344).
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<br />In this first draft of the law, Jefferson states unequivocally that free individuals have a right to use of arms. There are actually two versions showing how he had revised it. He had written that “No soldier shall be capable of continuing in peace” and then changed it to “there shall be no standing army but in the time of actual war.” Although Jefferson does not mention the militia explicitly, he appears to link the right to bear arms to the fact that there cannot be a standing army and thus may implicitly connect the idea of bearing arms to the need for a militia.
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<br />But what is really interesting is Jefferson’s revision in his next version of the Constitution. The brackets represent words he added to the earlier draft.
<br />Jefferson’s Second and Third draft of the Virginia Constitution:
<br /><em>No freeman shall be debarred the use of arms [within his own lands or tenements]. There shall be no standing army but in the time of actual war.</em> (see Boyd, <em>The Papers of Thomas Jefferson</em>, I. 353) and Online: </span><a href="http://avalon.law.yale.edu/18th_century/jeffcons.asp"><span style="font-family:verdana;font-size:85%;">http://avalon.law.yale.edu/18th_century/jeffcons.asp</span></a>
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<br /><span style="font-family:verdana;font-size:85%;">In his second and third drafts, possibly after receiving a draft of the Virginia Constitution, Jefferson significantly restricts the right to arms to a person’s private estate or lands. This is a dramatic limitation. It suggests Jefferson envisions that the right to bear arms as linked to and an extension of the rights of defending one’s property. But Jefferson explicitly forbids the right to bear arms off one’s property. </span>
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<br />Thus even Jefferson, who goes further than the Virginia Constitution, and envisions an individual right to bear arms, and who is often cited as the ultimate defender of liberty, limits that right to a person’s own property.
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<br />We have seen, then, that Virginia, Madison’s and Jefferson’s home state does not acknowledge a right to bear arms and instead focuses on the State’s need for a militia and implied need to press people into military service. A similar disregard for an individual right to bear arms is visible in other State constitutions. Let’s look at other State constitutions that were approved before the Constitution was ratified.
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<br />Constitution of Georgia (Feb. 5, 1777):
<br /><em>ART. XXXV. Every county in this State that has, or hereafter may have, two hundred and fifty men, and upwards, liable to bear arms, shall be formed into a battalion; and when they become too numerous for one battalion, they shall be formed into more, by bill of the legislature; and those counties that have a less number than two hundred and fifty shall be formed into independent companies. </em>
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<br /></em>The constitution of Georgia uses the language of "bear arms" without declaring it a right. Instead, it discusses how the militia of the State shall be created and organized. If a country has at least 250 men "liable to bear arms", meaning old enough to bear arms, then it shall constitute a battalion. The implication is that the State can force the counties to create battalions and that the counties can conscript people into military service.
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<br />Similarly the New York and Philadelphia State Constitution focuses on the need for the militia and says nothing about the individual right to bear arms.
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<br />Pennsylvania (September 28, 1776) and New York (April 20, 1777) </span>
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<br /><em>And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State. </em>
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<br /></em>Instead of emphasizing a right to bear arms, the States of Pennsylvania and New York are explicit that “it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it.” These states are explicit that military service is an obligation of living under the protection of the State. Instead of a right to bear arms, the focus is on the duty to serve. The right to be protected by the State goes with a duty of military service. Because New York and Pennsylvania conceive of military service as an civil obligation, these State constitutions explicitly take up the case of Quakers, who are pacifists, and indicate that Quakers can be excused from personal military service by paying a tax instead.
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<br />We saw something similar in Madison’s version of the amendment for the Bill of Rights which gave exemption to people of conscience, suggesting that Madison may have had the New York and Philadelphia Constitution in mind on this point.
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<br />Here again is Madison’s language when he proposed the amendment to Congress in 1787:
<br /><em>the right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military services in person.</em>
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<br /></em>In Madison’s proposed wording of the second amendment, religious pacifists are exempt from military duty. This allusion back to the New York and Pennsylvanian Constitutions’ gives further support to the idea that Madison was conceptualizing his amendment as mandating an obligation to serve in the militia. Because he conceptualized “the people” as having a right to create a militia, they therefore had the right to press members of the State into service. This is why Madison had to deal with the case of religious pacifists.
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<br />Not all State Constitutions mention the need for a militia or the right to bear arms. New Jersey (July 2, 1776) published its Constitution but mentioned no right to bear arms and no need for a militia. New Hampshire’s Constitution (January 5, 1776) mentions a militia but says nothing about the right to bear arms. </span><a href="http://avalon.law.yale.edu/18th_century/nh09.asp"><span style="font-family:verdana;font-size:85%;">http://avalon.law.yale.edu/18th_century/nh09.asp</span></a><span style="font-family:verdana;font-size:85%;"> Similarly, South Carolina’s Constitution (March 26, 1776) says nothing about a militia or the right to bear arms. </span><a href="http://avalon.law.yale.edu/18th_century/sc01.asp"><span style="font-family:verdana;font-size:85%;">http://avalon.law.yale.edu/18th_century/sc01.asp</span></a><span style="font-family:verdana;font-size:85%;">. The same is true of Delaware’s constitution (Sept. 10, 1776) (</span><a href="http://avalon.law.yale.edu/18th_century/de02.asp"><span style="font-family:verdana;font-size:85%;">http://avalon.law.yale.edu/18th_century/de02.asp</span></a>.
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<br />But in November 1776, Maryland (Nov. 11, 1776) offers a series of protections for individuals and does speak about the militia. </span><a href="http://www.nhumanities.org/ccs/docs/md-1776.htm"><span style="font-family:verdana;font-size:85%;">http://www.nhumanities.org/ccs/docs/md-1776.htm</span></a><span style="font-family:verdana;font-size:85%;"> In language that seems close to Virginia’s Constitution, Maryland’s Constitution states:</span>
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<br /><span style="font-family:verdana;font-size:85%;"><em>XXV. That a well-regulated militia is the proper and natural defence of a free government.
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<br /><span style="font-family:verdana;font-size:85%;"><em>XXVI. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature.
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<br /><span style="font-family:verdana;font-size:85%;"><em>XXVII. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.</em> </span>
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<br /><span style="font-family:verdana;font-size:85%;">We see again that the concern is with protecting the people from “standing armies” by guarding the need for a militia. No mention again is made of an individual right to bear arms. It does say however that are subject to common law of Great BritainIn December of that year, 1776, North Carolina does mention that the people have a right to bear arms. But as we shall see, it is interprets that right “for the defence of the State.”</span>
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<br /><span style="font-family:verdana;font-size:85%;">Constitution of North Carolina (Dec 18, 1776)</span>
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<br /><span style="font-family:verdana;font-size:85%;"><em>XVII. That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.</em> </span>
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<br /><span style="font-family:verdana;font-size:85%;">North Carolina is the first State to make explicit that the people have a right to bear arms. But it is explicit that that right is “for the defence of the State.” Like the constitutions of Virginia, New York, Pennsylvania and Maryland, the focus is on protecting the people from a permanent army by giving them the right to have a militia, or to “bear arms”. Bearing arms therefore appears, in the State Constitutions at least, to be a kind of synonym for the militia. </span>
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<br /><span style="font-family:verdana;font-size:85%;">We see a similar inclination in the Vermont Constitution (July 8, 1777)</span>
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<br /><span style="font-family:verdana;font-size:85%;"><em>IX. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore, is bound to contribute his proportion towards the expense of that protection, and yield his personal service, when necessary, or an equivalent thereto; but no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal representatives; nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent; nor are the people bound by any law' but such as they have, in like manner, assented to, for their common good. </em></span>
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<br /><span style="font-family:verdana;font-size:85%;"><em>XVIII. That the people have a right to bear arms, for the defence of themselves and the State: and as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by the civil power.
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<br /><span style="font-family:verdana;font-size:85%;">Vermont makes explicit what was implicit elsewhere. The benefits of society come with a responsibility to yield personal service. The clear implication is that this means military service. This is why the constitution mentions the right of any man who is a pacifist to be exempt. In language very close to that of North Carolina, Vermont’s constitution goes on to say that the people have a right to bear arms “for the defence of themselves and the State.” The words “for defence of themselves and the State” suggest that the right is not only for protecting the State with a militia but for “defending themselves” in some additional way. This could be the first State allusion to a right to bear arms to defend their property or even guard themselves against the power of the State. It is not clear. In any case, this is as close to a right to bear arms as we find in the State Constitutions, considered so far. </span>
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<br /><span style="font-family:verdana;font-size:85%;">We see, then, that, apart from Vermont, none of the states actually articulate an individual right to bear arms. Some of them focus on the need for a State militia and some make clear there is a state right to conscript individuals into the militia. None of the other State Constitutions suggest that there is any right of individuals to bear arms apart from the need for militia defense.
<br />The State constitutions, as I indicated, were thought to be closer to the right of the people than the Federal constitution. Yet the States for the most part express no concern around protecting an individual right to bear arms. They are concerned about protecting the people from the risks of a standing professional army which they view as a core threat to liberty. The militia, therefore, was the alternative to the standing army, because the militia was drawn from the people themselves. It was not permanent. The people had local ties to the population and returned to the populace after their service. To ensure therefore that the State could execute its role to defend itself, it had a right and mandate to create a militia. Military service was thus an obligation of men living in the state and benefiting from the security of the State. The discussion of arms in the State Constitutions, therefore, focus on the State’s right to have, raise money for, and train a militia. As several States recognize, this means the State has a right to press people into militia service.
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<br /><span style="font-family:verdana;font-size:85%;">This foregoing interpretation of the state constitutions, incidentally, is consistent with some of the constitutions of the colonies in the century before the States achieved independence from Great Britain. The Fundamental Constitutions of Carolina from In March 1, 1669 includes the following
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<br /><span style="font-family:verdana;font-size:85%;"><em>One hundred and sixteen. All inhabitants and freemen of ()arolina above seventeen years of age, and under sixty, shall be bound to bear arms and serve as soldiers, whenever the grand council shall find it necessary. </em></span><a href="http://avalon.law.yale.edu/17th_century/nc05.asp"><span style="font-family:verdana;font-size:85%;">http://avalon.law.yale.edu/17th_century/nc05.asp</span></a>
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<br />Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.comtag:blogger.com,1999:blog-666144648202060558.post-13386333649746255072009-10-17T14:37:00.000-07:002009-12-04T09:31:46.730-08:00The Right To Bear Arms: On James Madison’s Original Wording of the Second AmendmentThere is a bit of an ambiguity in the language of the second amendment, as I suggested in my last blog <a href="http://libertyandcapitalism.blogspot.com/2009/10/it-is-time-to-take-away-guns.html">entry.</a> Does the second amendment protect the individual’s right to bear arms or is that right tied to a State’s right to have a well-regulated militia? Or does the second amendment protect both? The language of the second amendment by itself is ambiguous. Can history help? Do historical sources shed light on what the second amendment was intended to mean?<br /><br />When we turn to the larger historical context, we can find many sources that are relevant to the discussion. Of particular interest is the wording used by Madison when he proposed what was to become the second amendment. Let’s see whether Madison’s original wording sheds light on the ambiguity of the second amendment.<br /><br /><em><strong>Madison and the Proposal of the Bill of Rights</strong><br /></em>We know that the Bill of Rights was intended to allay the fears of the anti-Federalists who had been against the ratification of the Constitution and afraid of a large powerful Federal government. James Madison, who was a supporter of the Constitution's ratification, and a co-author of The Federalist Papers, proposed the amendments to Congress on October 18, 1788 explicitly indicated that the goal was to reduce the fear of opponents to the Constitution that the federal government would encroach on their liberties.<br /><br /><em>I know some characters who opposed this Government on these grounds; but I believe that the great mass of the people who oppsed it, disliked it because it did not contain effectual provisions against the encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power; nor ought we to consider them safe, while a great number of our fellow citizens think these securityes necessary. </em><a href="http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=226"><em>View online</em></a><em>.<br /><br /></em>Madison says the purpose of the Bill of Rights was intended to reassure the people who opposed the Constitution’s ratification because they did not think it offered the protections that they were accustomed to having against government interference in their lives. Given Madison’s view of the amendments’ purposes, it would seem reasonable to conclude that the amendments were designed to protect an individual's right to bear arms. But there are some interesting twists and turns of meaning that emerge when we look at Madison's own formulation of what became the current second amendment. Madison’s original language differed from the language of the final version that was approved by Congress.<br /><br /><em><strong>Madison's Original Version of the Amendment</strong><br /></em>Here is how Madison formulated what was originally the fourth amendment in his original proposal:<br /><br /><em>the right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military services in person. </em><a href="http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=227"><em>View online</em></a><em>.<br /><br /></em>Contrast this with the way the second amendment is now worded in the approved Bill of Rights.<br /><br /><em>"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."<br /><br /></em>How interesting! In Madison's original proposal, the language is the reverse of the current second amendment. In Madison’s version, the amendment begins with the people's right and then talks about the need for a well regulated militia. In the approved version that we now have, by contrast, the amendment begins with the need for a militia and then the right to bear arms. Second, in Madison’s version, the militia is required for “the best security of a free country.” By contrast, the current amendment speaks about the “security of a free State.” Third, in Madison’s version an exemption from military service is offered for people of religious conscience. That clause is dropped from the approved amendment altogether. What are we to make of these differences, if anything?<br /><br />Let’s take up the order of the phrases first. Based on the order, Madison’s language seems to emphasize the people's right to bear arms as an independent self-contained statement much more than the present second amendment. His original language would seem to be a cleaner way to emphasize the individual nature of the right. By reversing the order of Madison’s original, the language of the now approved amendment seems to make the need for the well-regulated militia more primary and the individual right subservient to the need for a well-regulated militia. Is it possible the reversal in language signals a move away from the original intention of Madison’s language? It is difficult to know but that is one reasonable interpretation.<br /><br />The ambiguity is actually even there in Madison’s language too. Madison’s language also links the right to bear arms to the need for a well armed militia, as if to say the right of the people to bear arms shall not be infringed "because" a well armed and well regulated militia being the best security of a free country. Both Madison’s and the current version of the amendment link the right to bear arms to the need for a militia.<br /><br />Madison’s version of the amendment fits his language in other amendments as well. Stylistically, Madison begins two of the other amendments before the arms amendment with similar language:<br /><br /><em>“The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments…<br />The people shall not be restrained from peaceably assembling and consulting for their common good...<br />The right of the people to keep and bear Arms shall not be infringed….”</em><br /><br />Each of these amendments emphasizes “the people”. Thus the rights enumerated in the amendments are rights of the people (not rights of States per se). And to emphasize this point, Madison proposes similar language for the preamble to the Constitution: "First, That there be prefixed to the constitution a declaration, that all power is originally vested in, and consequently derived from, the people.”<br /><br />It is interesting that there is a slight difference in how the right is articulated in each of the three amendments that Madison enumerates. Two of them emphasize that “the people” shall not be restricted in an action ( “shall not be deprived…” “shall not be restrained”). The one about arms focuses on “the right” of the people shall not be infringed. It also puts “the right” before the verb. This change in emphasis may underscore Madison’s view that the bearing of arms is a right.<br /><br />There is a second interesting difference between Madison's original wording and the final wording of the approved amendment. Madison speaks about a well armed and well regulated militia being the best security "of a free country" whereas the approved amendment says "being necessary to the security of a free State". This is potentially a significant difference. It is true that the founders did sometimes refer to their home state as “my country.” But it seems more likely here that Madison may have had in mind here the newly created United States, since the Constitution had just been ratified and a unified country had been created. In that interpretation, Madison is linking the right to bear arms to the need of the newly created United States to utilize a militia. By contrast, the approved amendment seems to link the right to bear arm to the need of militias for the States, and seems to be referring to individual States. Thus the final version of the amendment seems to link the right to bear arms to the powers and needs of the States vis-à-vis the newly created Federal government.<br /><br />There is a third significant difference between Madison’s version and the final amendment as it now appears. Madison goes on to offer an exemption for people of conscience, such as Quakers: "but no person religiously scrupulous of bearing arms shall be compelled to render military services in person.” The current amendment does not have this anywhere, and in fact, ironically enough, it was precisely this clause about an exemption that was subject to debate in the Congress. We shall see that one of the State Constitutions has a similar statement and may have provided the example that Madison picked up on.<br /><br />It is clear that Madison is envisioning a kind of military draft and the exemption is intended to acknowledge that people do not have to serve in the military if they are what we now call “conscientious objectors”. In other words, in Madison’s version, the first amendment which guarantees freedom of religion trumps the right to bear arms. One right trumps another right.<br /><br />If we look at Madison’s language, then, it seems to start with the right that “the people” have to bear arms and the fact that that right is attached to the need for the country to have an armed force that can be mobilized. As soon as he shifts to the need to call forth a militia, he then focuses on the exemption that people of conscience have. The three parts are all tied together.<br />If we now ask about what the right of the people to bear arms means it is possible, even in Madison’s version, to give that it both an individual or a collective interpretation. The individual interpretation we have already described. The collective interpretation would be like this: The people [who have come together to create a political entity, the Country] have a right to “bear arms” or “have a military force.” In other words, it is the people who have entered into political statehood that collectively have a right to have an armed force. They retain this right even after a Federal government is created. They can still have an armed force comprised of private citizens and they can legislate to draft people for the military. The armed force does not belong to the Federal Government and should not be a standing army. It should be a force of the people that can be brought together and disbanded based on need of security. Having said that the people have a right to conscript their individual citizens, Madison then offers an exemption for the conscientious objectors. On this interpretation, then, the right of the people as a political collective is being protected against the government that they created. The government may tax them but it can’t forbid them to have their own military force comprised of the people.<br /><br />This part of Madison's amendment which refers to people of conscience never made it into the final Bill of Rights. And if we look at the debate in Congress on the Bill of Rights, we find, ironically enough, that it was precisely this clause about the exemption for people of conscience, and not the right to bear arms, that was subject to debate and which was excised from the final amendment. This may explain why the statement about the militia was moved to the first part of the present day amendment. Once the reference to the exemption was dropped from the end, the word statement about the need for a military did not have to come at the end. It could now be reordered and placed in the beginning.<br /><br />In conclusion, the wording of Madison’s amendment can lend itself to either a collective or individual interpretation. And the change between Madison’s version and the present day amendment suggests that even more emphasis was placed on the need for the state to have a well-regulated militia comprised of ordinary citizens.Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.comtag:blogger.com,1999:blog-666144648202060558.post-6024769941596564362009-10-03T15:42:00.000-07:002009-10-29T05:59:05.976-07:00A Right To Bear Arms?Do we have a right to bear arms? And if so, what kind of right is this? Well, the second amendment in the American Constitution, of course, says:<br /><br />"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."<br /><br />"We" Americans, then, have a right to bear arms to the extent that we understand this amendment and agree that it has the power to define our rights. Or if this is a "natural right" then everyone should have the right to bear arms. But first let us focus on the meaning of the amendment here and what it means for Americans. For even if it isn’t a natural right, Americans would have the right because their Bill of Rights gave them the right.<br /><br />For right wingers and gun rights advocates, this amendment means that individuals have a right to own and possess guns, for their own protection and sport. It is proof that the founders saw gun possession as a fundamental and perhaps even natural right. This right comes just after freedom of speech and religion in the first amendment. It is of the same level of importance and comes before protection from search and seizure and trial by jury, other rights listed in the Bill of Rights. It is an individual right. Just as the right to free speech and religion talks about "the right of the people" so too this amendment talks about the right of the people, meaning an individual right.<br /><br />But, as anyone who has read or thought about this the amendment and its language realizes, the issue is more complex. For the language of the amendment is not transparent at all. The fact that it is not transparent raises complex interpretive problems leading to disputes on the amendment's meaning and intention. And ultimately what is a debate over the nature of a core social value and definition of rights boils down to a debate about language, history and interpretation. So what else is new?<br /><br />Unfortunately or fortunately, depending on your perspective, the amendment doesn't just say "the people have a right to keep and bear arms.” That would have been a clearer and more straightforward way to give individuals a right to own guns. Instead, the amendment prefaces the right to bear arms with a statement about the need of a free State to have a well regulated Militia. Why is that?<br /><br />This is the horns of our interpretive dilemma and debate over what the amendment means. Before looking at historical facts to try to interpret this amendment, let us look at the language by itself and see what sense we can make of it. One of our supreme court justices (Justice Antonin Scalia, A Matter of Interpretation) thinks we can interpret the Constitution just by looking at its language and not looking at historical context to interpret language. Let's see if he is correct in this case.<br /><br />"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."<br /><br />Why does the language of the amendment link the "right of the people to keep and bear arms" with the need for a "free State" to have a well regulated militia? One way to read the amendment is as follows: "Since" a state needs a well-regulated militia, for its security, that is why the people's right to bear arms shall not be infringed. In this reading, the language of the amendment makes the right to bear arms tied to the need to support the State with a well-regulated militia.<br /><br />Bearing arms is thus tied in some way to the need for a militia. The language of "bear arms" underscores the association of this amendment with the idea of military defense. "Bearing arms" in the founding is usually associated with the idea of military defense, as Akhil Reed Adams, has pointed out in his <em>America's Constitution: A Biography</em>, 322-323. One can find numerous examples of how "bearing arms" refers to a military context in founding documents such as The Federalist Papers.<br /><br />If this amendment was simply justifying a defense of my individual right to possess and own guns, why add any language about the militia at all? One possibility is that the right to bear arms is derived from or dependent on the need for protection of the state. On this interpretation, there is not some individual right to bear arms separate from the need to protect the state. And thus the ownership of guns is tied to that purpose particularly. If that is so, then one could argue that the use of guns should be restricted to military purposes. <br /><br />Some modern interpretations of the amendment have leaned towards this interpretation. They say that the amendment grants "the people" collectively, and not individuals as individuals, the right to own guns for the purposes of State security. On this view, since the State is created in part for protection of individuals there is a right for "the people" to bear arms in defense of themselves. But there is no individual right to bear arms, apart from this purpose to defend the State. Champions of gun control would like to read the amendment this way and declare that gun ownership should not be for sport or personal protection but linked only to common defense of the state. Going further, you can also argue that the State can therefore control the right to bear arms since the purpose of the amendment is to protect the State’s right to defend itself. The State has the right not individuals.<br /><br />But there is another ambiguity in the language of the amendment concerning the purpose of the militias. What does the amendment mean when it says that well regulated militias are "necessary to the security of a free State." There are two ways of understanding this statement. Most probable is that the amendment is referring to militias that were intended to protect each state in the Union. In other words, the amendment is recognizing that though the Constitution grants the Federal government the right to create a permanent army, the States themselves still had the right to militias for their own protection. Indeed, the Constitution assumes that the individual States still retained some sovereign power and thus had a right to protect themselves against aggressor states or foreign invaders, even though the newly formed Federal Government had the responsibility to defend the collective states and police conflicts between states. The States in other words retained some of their rights of independence that had existed before the Constitution.<br /><br />This would make some sense reading the powers granted to the Federal Government in the Constitution:<br /><br />Article 1, Section 8 of the ratified Constitution had already outlined the power of Congress:<br />To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;<br />To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;<br />To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;<br /><br />As is evident here, the Constitution envisions that Congress has the power to create an army with money appropriated through taxes for up to two years. An “army” which was made up of professional soldiers differed from a militia which was drawn from the people on an as needed basis (see Amar, Bill of Rights). The Constitution itself, even before the Bill of Rights was ratified, envisions that Congress has the power to call forth the "the Militia" to execute the laws of the Union, suppress Insurrections and repel invasions." The Constitution presupposes that the States have militias and that Congress can mobilize the militias for broader Federal interests. <br /><br />To tie the Constitution and Second Amendment together, then, the two seem to be saying that 1) the Federal Government presupposes the existence of the State militias that can be mobilized for Federal purposes and 2) the need for a well-regulated militia requires that the people’s right to bear arms not be infringed. Thus if the Federal government can take away people’s arms, the states cannot have well-regulated militias.<br /><br />The second amendment, therefore, could be construed as a state right rather than an individual right. The protection is offered to the people by giving States the right to arm their citizens and create militias. On this reading, the protection is collective by offering individuals protections through their States. We know in fact that there was deep concern during the Debates on the Federal Constitution about the liquidation of State powers. One could argue that the second amendment was intended to protect this State right to create militias and arm their citizens. This could make some sense of the language. <br /><br />Yet while the debates preceding the ratification of the Constitution often focused on the tension between State and Federal powers, the Bill of rights seems aimed at ensuring individual rights. Freedom of speech and religion, search and seizure, trial by jury, are all rights of individuals. And “the right of the people” though phrased as a right of a collective is used also in other amendments to clearly mean an individual right, as in Amendment IV: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”<br /><br />Still, the fact that the second amendment does not start with “the right of the people to bear arms” but with a preamble about a “well regulated Militia” seems to tie the individual right to the need for the States to have a capability of protecting themselves. My right to bear a gun is tied to the State’s purpose of creating security for me. Since the founders envisioned the purpose of the State to be partially for security, and to protect individual rights, then the mechanisms of ensuring that security have to be protected.<br /><br />The language of the amendment therefore is interestingly ambiguous when read in the context of the Bill of Rights as a whole or the Constitution as a whole. By looking at language alone it is difficult to say what the “intent” or “meaning” of the amendment is or was intended to be. Justice Scalia is clearly wrong when he says we can interpret meaning of the founder’s language without looking at history. This amendment in its language is ambiguous. And perhaps that ambiguity was part of the intent.Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.com0tag:blogger.com,1999:blog-666144648202060558.post-7864395820451994792009-10-03T15:18:00.000-07:002009-10-03T15:22:09.003-07:00The Real Origin of Religion:Short People and the Big GorillaThere are many modern theories of religion's origin. Some of the nineteenth century evolutionists, such as Edward Tylor, argued that religion originated as an explanation of natural events that could not be explained, such as thunder and seaons. Emile Durkheim, the French sociologist, explained the origin of religion in the experience of community in small communities where the power of the community was perceived to be outside a person and thus to be all powerful and moral. Freud argued the origins of religion were in the psyche and the experience of the all powerful parents.<br /><br />But noone as far as I know has ever suggested the real origin of religion. It is clear that religion is an invention of short people. Short people (my ancestors for I am one of them) can clearly account for the development of religion. By projecting images of all powerful beings into the heavens, short people found the only possible way of getting big people in line. Small people after all were at the mercy of the big people.<br /><br />In prehistoric times, it was not simply women who were subjected by men. It was short men too who were under the power of the powerful males. Humans were like and still are like certain types of other animals originally, such as the gorillas, in which the dominant male kept all the females to himself and cowed the smaller males.<br /><br />But the development of symbolic thought, one of the great dividers between humans and the other animals, gave small people a new powerful tool. Now they could imagine an even bigger gorilla, a being that was so powerful and so large that the dominant male would be cowed. This dominant imaginary being, of course, could not be one that could be easily seen, for were this being to be visibile the actual dominant male of the horde could then try to fight the being to test its power. One can think of such encounters between humans and the Gods in stories like Jacob wrestling with the angles.<br /><br />As a result, these other imaginary dominant males would have to live in the sky and would only communicate with special trusted servants (short people, of course, were particular trusted). What these larger than life figures demanded, naturally enough, was some form of ethics, a set of rules by which society would abide. These rules would level the playing field. They would make the size ofthe male unimportant. Even short people like me would be able to accepted in the community. The dominant males could not monopolize all the women.<br /><br />The birth of ethics was thus the gift of small people. Ethics would ensure that size didn't matter. Other characteristics of the person would be relevant in social life. Power alone would no longer make right. In earlier stages of society, property was a right of the powerful. But now one could acquire property without taking it. Rules would ensure that small people could have property just like big people. So you see, the notion of God is a gift to the world by small people. It was small people who imagined a bigger baboon, one who could cow the dominant male. The idea of God, of the "big gorilla" was a natural consequence of the symbol making capability of human evolution. Once short people could imagine a bigger nicer gorilla, but one who was invisible, it was only a short step to the birth of religion.Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.comtag:blogger.com,1999:blog-666144648202060558.post-91679198059211955302009-10-03T09:56:00.000-07:002009-10-03T15:07:08.556-07:00Right to Life, Liberty and Healthcare TooIt is amazing that people who say they care so much about liberty don't want to support a healthcare reform bill. Those right wing conservatives and libertarians who are against it, of course, say it because Obama's plan infringes on their rights. They portray the public plan as "socialism" and as an example of "big government" stepping in inappropriately. A public government plan in an infringement of individual rights, they say.<br /><br />This is an example of how "liberty" is used indiscriminately to actually infringe on rights. For it is not only possible, but probable, to argue that "health" is a natural right.<br /><br />I am by no means the first to make such a claim. Cass Sunstein, as one example, has written a good book on the subject (The Second Bill of Rights: Franklin Delano Roosevelt's Unfinished Revolution and Why We Need It More Than Ever). But I want to approach this same topic from another angle. The very notion of what is and is not included in our natural rights is a construction. For the question of why health should not be a natural right that is protected by government, just like my other rights, shows just how flimsy and problematic is the Right Wing's view of natural rights. Indeed, we shall see that it is arguable that "health" should be considered a basic natural right alongside others such as "life, liberty and property."<br /><br />Without going into the whole history of natural rights, it is fair to say that seventeenth century philosopher John Locke at least represents one of the most credible and influential writers on natural rights. In fact, those who want to see natural rights as a foundation of American society, , often argue that Thomas Jefferson and the American founders endorsed natural rights in general and a Lockean view in particular. I have documented and challenged these contentions in a series of essays (see <a href="http://www.freedomandcapitalism.com/">http://www.freedomandcapitalism.com/</a>) and in a forthcoming book, <em>Jefferson, Natural Rights and the Declaration of Independence</em>.<br /><br />Lets assume for a moment these writers are right, and that John Locke's understanding of natural rights is a foundation of the American vision. If so, then what are we to make of the fact that Locke includes health as a natural right.<br /><br />In the Second Treatise on Government, Locke writes in one of his central statements on natural rights:<br /><br /><span style="font-family:arial;">The <em>state of nature</em> has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all <em>equal and independent</em>, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipoent, and infinitely wise maker; all the servants of one soverign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during hs, not another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such <em>subordination</em> among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of createures are for our's. Every one, as he is <em>bound to preserve himself</em>, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, <em>to preserve the rest of mankind</em>, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the life, the liberty, health, limb or goods of another.<br /></span><br />Now it is surely interesting that Locke here mentions "health" along with the other basic natural rights in one of his classic definitions of natural rights. Indeed, this is one of Locke's classic justifications for the fact that people have natural rights. We have such rights because we are God's workmanship and as God's property we don't have a right to harm one another. In this passage at least, Locke assumes our natural rights derive from the fact that God made us and we are his property. I can't touch you because you are someone else's property.<br /><br />Furthermore, we also see here Locke's assumption that my right to life is primary and the other rights like property are secondary and derivative from my right to life. In Locke's own words, one "may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the life, the liberty, health, limb or goods of another." Property is not a right by itself, but a right that derives from my right to life. As Locke says elsewhere, if someone can take my property they can take my life. So my right to property is a fence around my more basic right to life.<br /><br />We often here the summary of natural rights as "life, liberty and property" (or Jefferson's "happiness"). But note that Locke includes "health" in his list too. Health is on the same level as property in the list of natural rights. My right to health is as primary as my right to property. Noone has the right to impair my health in the same way they have no right to my property. Both are a fence around my more basic right to life.<br /><br />We see then that my right to health should be protected and this right is as strong as my right to property. But so what? What has this to do with the healthcare debate? Doesn't Locke mean to say only that noone may do something to harm my health? And if so, Locke is merely saying that I can't do something that will harm your health?<br /><br />In fact, we shall see that Locke is saying something even stronger than this. But lets assume for a moment he is not. Lets assume he is merely saying that noone may do something to harm me or my health. Still this is a very significnat addition to natural rights. For it means that there should be as many laws protecting my health from harm as we recognize for protecting my property. If government has to create many laws to protect my property, it should have the responsibility to create as many laws to protect my health. My property should not be more precious to society than my rights regarding health. One could see here the foundation for government regulating what others do that may infringe on my health. One can see here a justification for anti-smoking laws, for example, or for environmental laws against pollution. Actions of others can harm my health directly and indirectly and that is a violation of my right to health. In other words, if I have a natural right to health, then my health should be protected from the detrimental actions of others. That is a pretty strong endorsement for government getting involved in protecting me from the behavior of others that they may not intend to harm my health but that actually may harm my health.<br /><br />But there is a reading of Locke that suggests an even stronger obligation to protect the health of the individual. For Locke indicates that if our own preservation is not at risk, that we have a duty to protect the life and health of others. In his words,<br /><br /><em>"Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the life, the liberty, health, limb or goods of another."</em><br /><br />What Locke is saying here is that the same Reason that leads me to conclude that I may protect and preserve myself leads me to understand that I have a positive duty to preserve the rest of mankind. This duty to preserve the rest of mankind can be construed as a positive duty of "care" . As long as my own preservation is not at risk, I have an obligation to help others, not only to protect their lives, but "what tends to the life, the liberty, health, limb or goods of another."<br /><br />In this reading, Locke is arguing that we have not only a right to be protected but a duty to care and that duty is part of the natural rights obligation. This duty moreover is as self-evident to reason as the protection of our life. What this duty to care suggests is that each person has a duty to do "whatever he can" to preserve the rest of mankind.<br /><br />Now this language certainly opens up the possibility that individuals have a responsibility to contribute to the health of others. And it opens up the possibility that individuals can transfer this duty to society and execute it through government institutions. After all, Locke sees the beginning of government in the social contract in which individuals turn over to society some of their rights in exchange for some of societies benefits. If an individual has a responsibility to preserve humankind, it stands to reason that government can act as an agent for those responsibilities.<br /><br />In this way, we can see how it is appropirate for government to see itself as executing the natural right obligation to protect the health of its members. A health care plan that puts some of the onus on government certainly can be aligned with a view of natural rights. To call a health care plan that has government involvement "socialism" indicates a complete lack of understanding of the natural rights tradition.<br /><br />For those who want to argue that America is founded on natural rights and liberty, they have to contend with the fact that the father of liberty, John Locke, thought health was a central right. And they have to deal with the fact that many that right wingers think Jefferson adopted the Lockean view of rights. If they think American is founded on natural rights, then they have to at least concede that the father of the natural rights tradition included the protection of health in the category of a natural rights.Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.comtag:blogger.com,1999:blog-666144648202060558.post-66531492595222408112008-01-08T15:54:00.000-08:002008-01-12T11:32:15.991-08:00Religion and Freedom, Separation of Church and State and Natural RightsOne of the classic liberties protected by the constitution is religion. This protection appears in the Bill of Rights as the first amendment to the constitution. We have taken the separation of church and state for granted since the Bill of Rights, although there was recognition of the need to protect religion from government before this. But it is interesting to ask what particular status does religion have as a right that is protected? Is it a special kind of right?<br />Typically religion is lumped together with freedom of consciousness and freedom of the press, at least that is the way the constitution categorizes these rights. But behind this categorization that seems so self-evident to us now is an interesting theoretical puzzle and historical story. At issue is the question of whether religion should have any special status as a right over other rights? In other words, if the rights of life, liberty and property are taken as natural rights, what is the right of religion?<br /><br />On the classic notion of natural rights of course, the basic right is the right to life and the other rights are derivative, such as the rights to property and liberty (right not to be enslaved), which are fences around and extensions to the right to life. But religion is not mentioned as a natural right in John Locke's Second Treatise on Government for example or even in his Letter on Toleration. Locke clearly thought that the state should not get involved in matters of religion. But he never said that this protection was a natural right. Instead, he presented it as a strong recommendation about how the social contract should be put together. The social contract should stay out of people's religious business because government should be focused on civil ends and religion is focused on salvation, which is not the business of civil government. Thus on one reading of Locke, religious freedom is strongly recommended as a foundation for a social contract, but it is not a natural right. It is a strongly recommended civil right, but civil rights derive from decisions at the social compact, not from nature.<br /><br />But it is not immediately clear why religion should have this special status? After all, when the social compact is made, soccieties have to come to agreement on how their government is to be structured and put in place a process for governing that takes account of the people. Thus the social contract was understood as an agreement that represented the majority of the people's views about how to be governed, as long as the basic rights of life, liberty and property were not sacrificed. And it was understood that in agreeing to enter into society a person's freedom was going to be curtailed because the majority would agree to a set of rules which would limit the freedom of individuals.<br /><br />It is here that the question about religion arises. On a theory of natural rights, why should freedom of religion have a special status over other types of freedoms that a society considers. In other words ,if at the moment of the social contract, a group considered all the different freedoms to embrace, why should religion have special consideration? There are a vast number of freedoms that a society does not allow, for laws are intended to limit behavior in a way that protects the rights of others. And so by definition there is not total freedom in a society, but only a specific set of freedoms that have been endorsed by a given society with its social laws. For example, there are rules about how fast we can drive or how loud we can be in public or about how to transfer property or what constitutes a contract and so on. Why should religion not be regulated by law of a society when so many other activities are regulated?<br /><br />One answer is probably historical. The whole notion of natural rights and of the social contract arises in a century that had witnessed religious wars among groups of Christians. It is arguable that the theories of the state that emerge in the seventeenth century were at least in part an attempt to decide how Christians of various varieties could live together in one state, without the rulers imposing religion on the members of society. Thus, religion gets a special exemption for its ability to generate social conflicts. And this is due arguably to the fact that religion is a symbolic system of ultimate meanings. Because people believe religious commitments are about ultimate matters, they are willing to go to war to protect those commitments. On this reading, then, religion is a special kind of protection because of its nature as an ultimate system of meaning that can rip a society apart.<br /><br />There is a second answer that is coupled with the first. Those who wanted to separate Church and State conceived of religion in Proestestant terms. If one reads Locke's definition of religion, for example, religion tends to be a set of beliefs about salvation. Now this notion that religion is beliefs (a view of religion that still popular in the States for example) rests on a Protestant conception of religion. For what Luther and subsequent Christians did is argue that religion was an inward matter, not a matter of practice or outward works. Their aim in making those arguments was against the Roman Catholic Church. But in shifting the definition of Christianity to inner life, and not works or practice, they shifted the definition of religion. It is this definition of religion that is guiding the assumptions of Locke when he writes about religious toleration. Religion tends to be inward and not external. Because it is internal, Locke can more easily argue that it is a matter between a person and God and not a civil matter. The same assumption is evident in the first amendment. Separation of church and State is categorized with freedom of press and ability to express diverse views.<br /><br />But had religion been thought about differently, and many scholars of religion for example see religion as not just a set of beliefs, but a whole social system with ways of life and pratices, it becomes much harder to argue that religion should be separated from government. For if religion is a set of practices, and not just beliefs, then the question of how my religious practice, as an act in the world, can affect your freedom becomes much more profound. As examples consider for example the following: my religion tells me to slaughter goats in my home, but society may think this is a health hazard. Or my religion tells me to take drugs that society has banned as harmful to society. In other words, if religion was thought to be a set of practices aimed towards salvation, the potential conflict between my religious practice and the rules that the majority wanted to implement is much more of a potential issue. The debate about whether Darwin should be taught in public schools or a mandatory part of education is an example where specific religious beliefs come in conflict with a more general social practice. Can jews be fired for not working on Saturday when the rest of the business works on Saturday?<br /><br />I am not arguing that the separation of Church and State should be abandonned. I derive from a people who have been persecuted from religious persecution. But I am suggesting that the issue is more complex than most people think. For it is always possible that some religion has religious beliefs and practices that are or come into conflict with other laws and rights that others want to protect.<br /><br />For example, one can coneive a religion that arises that has a law that says one much drive at 80 mph. But society in general has set the speed limit at under 65 mph for safety reasons. Does religious practice always get to override the general rules implemented by the majority. I would argue that it does not, for there are always new forms of religion that can emerge and contest the norms.<br /><br />While it seems simple to protect the diversity of religious belief, it is much more complicated to protect the diversity of religious practice. Any practice can always come in conflict with the established norms and not every practice of everyone can be protected, for that would mean no laws, as the theorists of liberty understood. We need therefore at least two different theories of the separation of church and state. The first that treats religion as belief, has no real issues. We shouldn't be telling people what to belief-that's easy. But the question of whether we allow any religious practice is a different matter. I'm not arguing that we should abandon the separation of church and state in this sense, only that it presents a different problem. And it presents the problem of majorities and minorities. Can majorities legislate against minorities? In what situations should majority decisions be accepted and in what conditions should majority deicsions be limited and examined. This is another whole topic that goes to the core of the debate over what the Constitution was trying to see. One can argue that religious practice is one area where society should have a higher standard than "majority rules" to override the minority. But whether that means that "minority rights" always trump the majority is another tricky question.Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.com0tag:blogger.com,1999:blog-666144648202060558.post-56099024742408830162008-01-08T09:06:00.000-08:002008-01-08T10:37:58.841-08:00Natural Rights and the Image of God.We have the righ to life, liberty and property, according to the theory of natural rights. But why? Locke offers two theory about the origin of these rights. The first is his "workmanship" theory that says we are the creation of God and therefore God's property. As God's property, we have no right to be harmed (actually this would seem to be a right of God, rather than that of us who are property-but that's for another time). The other theory is that we have ownership in ourselves. In my last blog, I discussed whether these two different claims for natural rights origins are incompatible. Here I want to ask a different question.<br /><br /><br /><br />What about being made in the image of God? In a religious perspective that reaches back to the Hebrew Bible (Old Testament for some of you), it would certainly make sense to say that we have rights because we are made in God's image. Genesis, at least in chapter 1 (there is a different account in chapter 2) says that "<br /><br /><br /><br />And God said, "Let us make Adam (man? humankind?) in our image, after our likeness. They shall rule the fish of the sea, the birds of the sky, the cattle, the whole earth, and all the creeping things that creep on earth. And God crated man is His image, in the image of God He created him; male and female He created them. God blessed them and God said to them, "Be fertile and increase, fill the earth and master it; and rule the fish of hte sea, the birds of the sky, and all the living things that creep on." Gen. 1:26-28.<br /><br /><br /><br />There are some notoriously interesting interpretive issues here for students of bilitical interpretation about the plural and singular switching and about what the image of God means. All sorts of interesting interpretations have beeen given in the religious traditions. God was talking to the angels. God was speaking in the royal we. Be that as it may, Genesis 1 sees Adam (Humankind) as being like God. And indeed the story of Genesis can be read as humans attempting to become even more like God by eating from the Tree of Life and becoming immortal. And it is reasonable to interpret the prohibition on murder in the hebrew bible as associated with the idea that humans are made in God's image. From a biblical perspective then it might make sense to base rights on the likeness of humans to God.<br /><br /><br /><br />In any case, it is interesting that John Locke bases his argument of natural rights on the "workmanship" theory that we are God's property. Why does Locke not appeal to the idea humans are made in the image of God? I don't have the complete answer to this question today. But it does seem interesting that he doesn't appeal to that concept in his Second Treatise. In part, perhaps, his theory about the origin of natural rights in his Second Treatise is principally based on "reason" and he differentiates between insights from reason versus revelation, as he indicated in various places in his writing. His focus on Scripture's meaning is given in his First Treatise where he takes on Filmer's theory of absolute power of monarchy. There Locke engages in much more detail with Scripture and even may have written the attack on Filmer to really provide an engagement with Scripture, as Michael Zuckert has suggested in Launching Liberalism, 137.<br /><br /><br /><br />A detailed analysis of Locke's Scriptural exegesis there is beyond the scope of the current reflection. But it is surely of interest that Locke, one of the foremost champions of natural rights, did not argue from the fact that we are made in the image of God. This is particularly interesting given the fact that he does place such a strong stress on reason as a differentiator between humans and lower creatures and as a sign of maturity when a child becomes responsible to join the social compact and no longer subject to the parent's authority. It would seem that Locke could have made an argument from reason that humans have natural rights because they are like God in having reason. But he did not. Instead he implies that the equality and independence of humans derives from their being the workmanship of God.<br /><br /><br /><br />There are some other puzzles in Locke's workmanship argument. If we are the property of God, why does this give us any rights in things at all? Wouldn't it make more sense to say that God has rights in us as property than to say that we have rights not to be hurt or killed by others. There is something curious here about talking about two types of property causing damage to each other. If a branch falls off a tree and lands on my flower pot and breaks it, it seems unusual to claim that the tree is responsible for violating the rights of my vase. Rights tend to inhere in the property owners not in the property itself. Except the difference of course is that living creatures are property with consciousness and free will. Thus on Locke's theory it might make sense to say that humans are property with wills. And because we have wills and understanding, we have obligations not to damage God's other property (ie other people). In this sense, humans are a special kind of property of God, like slaves can be human property.<br /><br /><br /><br />There is another puzzle in Locke's workmanship theory. He implies that the idea that we are all workmanship of God makes humans all equal. But he noowhere argues for that in the Second Treatise. He simply states it. And this seems to be an interesting gap in his theory given the importance that the equality and independence of individuals in the state of nature has to his argument.<br /><br /><br /><br />What this means for a theory of natural rights in general is of course relevant to a much broader discussion. But what this suggests is that there are some interesting gaps in Locke's foundation of natural right theory. And if proponents of natural rights want to base it on Locke they have to at least grapple with these interesting questions in Locke's theory.Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.com0tag:blogger.com,1999:blog-666144648202060558.post-32049559430324989292008-01-06T19:07:00.001-08:002009-10-03T15:18:00.689-07:00The Real Origin of Religion: Short People and the Big Gorilla<span style="font-family:verdana;">There are many modern theories of religion's origin. Some of the nineteenth century evolutionists, such as Edward Tylor, argued that religion originated as an explanation of natural events that could not be explained, such as thunder and seaons. Emile Durkheim, the French sociologist, explained the origin of religion in the experience of community in small communities where the power of the community was perceived to be outside a person and thus to be all powerful and moral. Freud argued the origins of religion were in the psyche and the experience of the all powerful parents. </span><br /><br /><span style="font-family:verdana;">But noone as far as I know has ever suggested the real origin of religion. It is clear that religion is an invention of short people. Short people (my ancestors for I am one of them) can clearly account for the development of religion. By projecting images of all powerful beings into the heavens, short people found the only possible way of getting big people in line. Small people after all were at the mercy of the big people. </span><br /><span style="font-family:verdana;"></span><br /><span style="font-family:verdana;">In prehistoric times, it was not simply women who were subjected by men. It was short men too who were under the power of the powerful males. Humans were like and still are like certain types of other animals originally, such as the gorillas, in which the dominant male kept all the females to himself and cowed the smaller males. </span><br /><span style="font-family:verdana;"></span><br /><span style="font-family:verdana;">But the development of symbolic thought, one of the great dividers between humans and the other animals, gave small people a new powerful tool. Now they could imagine an even bigger gorilla, a being that was so powerful and so large that the dominant male would be cowed. This dominant imaginary being, of course, could not be one that could be easily seen, for were this being to be visibile the actual dominant male of the horde could then try to fight the being to test its power. One can think of such encounters between humans and the Gods in stories like Jacob wrestling with the angles. </span><br /><span style="font-family:verdana;"></span><br /><span style="font-family:verdana;">As a result, these other imagery dominant males would have to live in the sky and would only communicate with special trusted servants (short people, of course, were particular trusted). What these larger than life figures demanded, naturally enough, was some form of ethics, a set of rules by which society would abide. These rules would level the playing field. They would make the size ofthe male unimportant. Even short people like me would be able to accepted in the community. The dominant males could not monopolize all the women. The birth of ethics was thus the gift of small people. Ethics would ensure that size didn't matter. Other characteristics of the person would be relevant in social life. Power alone would no longer make right. In earlier stages of society, property was a right of the powerful. But now one could acquire property without taking it. Rules would ensure that small people could have property just like big people. </span><br /><br /><span style="font-family:Verdana;">So you see, the notion of God is a gift to the world by small people. It was small people who imagined a bigger baboon, one who could cow the dominant male. The idea of God, of the "big gorilla" was a natural consequence of the symbol making capability of human evolution. Once short people could imagine a bigger nicer gorilla, but one who was invisible, it was only a short step to the birth of religion.</span>Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.comtag:blogger.com,1999:blog-666144648202060558.post-82993392455905051872008-01-06T05:32:00.000-08:002008-01-07T10:40:29.396-08:00Are We the Workmanship of God or Do We Own Our Own Bodies and Selves? An Inconsistency in Locke and a Question of Natural Rights and Abortion<span style="font-family:verdana;">Our ownership of our bodies is a widely held right that most people talk about and assume is included in the right to life, liberty and property, the triple play of natural rights. The right to our bodies is assumed to be included in property itself (our bodies are our property), in the right to liberty too, and certainly a fence around the right to life. No one can harm me because that is a derivative protection against the right to life. This right to our bodies and ourselves is often assumed to underlie the woman's right to choose and to thus hold off the right to life of the fetus. It can also be used to justify a right to die, a la Kevorkian. Our selves, bodies and lives belong to us. </span><br /><br /><span style="font-family:verdana;">But few who are not deeply into the scholarship on John Locke know that this right to ourselves and our bodies is not self-evidently the basis of rights in the philosopher who is so often credited with the most important statement on natural rights and the foundation of American rights. I've talked elsewhere on this blog about how the Declaration of Independence is thought by some to be a Lockean document of rights and how natural rights thus provide the framework for interpreting the American Constitution, a position I find problematic.<br /></span><br /><br /><span style="font-family:verdana;">But now I want to probe an ambiguity in the source of rights for those who look to natural rights and thus back to Locke. If Locke or natural rights is to provide the basis of "our rights" and a framework for interpreting the Constitution, then it would seem to matter what Locke meant. The only other alternative would be to ignore Locke altogether but then some other foundation of natural rights would have to be developed in which case there were be conflicting arguments about what natural rights actually mean and where they come from. </span><br /><br /><span style="font-family:verdana;">Locke in fact seems to make two sorts of claims with respect to our bodies and our lives that on the surface at least do not look compatible. This raises an interesting problem for interpreting Locke but it also raises an even more interesting problem about rights and the problem of abortion. Interestingly enough and not so surprisingly really a very detailed problem of interpretation in Locke is tied to a much broader issue of social policy -at least for those who want to build their case on Locke or natural rights of a Lockean sort. So what is this niggling problem of interpretation? </span><br /><br /><br /><span style="font-family:verdana;">Early in his Second Treatise on Government Locke justifies the right to life, liberty and property as deriving from the fact that human beings are the workmanship of God. Because we are the workmanship of God, we are therefore God's property. Thus one person has no right to take the life of another or to harm that person. Since we each belong to God, taking the life of another person is to damage God's property. </span><br /><br /><span style="font-family:verdana;">Locke writes in one of his most famous passages on the state of liberty in nature(II, 6): </span><br /><br /><span style="font-size:85%;"><span style="font-family:verdana;">But though this be a <em>state of liberty</em>, yet it is not a <em>state of license</em>: though man in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself ... The <em>state of nature</em> has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being <em>all equal and independent</em>, no one ought to harm another in his life, health, liberty or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his not another's pleasure: and being furnished with like faculities, sharing all in one community of nature, there cannot be supposed any such <em>subordination</em> among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for our's. Every one, as he is <em>bound to preserve himself</em>, and not to quit his station willfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to <em>preserve the rest of mankind</em>, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of life, the liberty, health, limb or goods of another. </span><br /></span><br /><span style="font-family:verdana;">It is important to note that this argument-that we are the workmanship of God- is arguably a Lockean interpretation of Scripture and thus fits in with Locke's assumption that God can be shown to exist through reason and that natural law depends on the assumption of God's existence. And for Locke there is a complex interplay throughout his work between his reading of Scripture (Revelation) and his assumptions about what can be known through Reason. </span><br /><br /><span style="font-family:verdana;">The workmanship argument that humans are God's handiwork thus alludes back to Scriptures account of creation but does not exactly argue from the fact that man is made in God's image, which would be a different argument. Killing a person would be like defacing God, a plausible interpretation of what Scripture (at least Genesis 1) actually meant and a plausible understanding of the murder prohibition in Scripture. And Locke does talk about the "image of God" justification in his response to Filmer in the First Treatise on Government. But this is not exactly what Locke says here in the Second Treatise. He does not quote the "made in God's image" statement and instead says we are the workmanship of God. </span><br /><br /><span style="font-family:verdana;">Thus one source for the right to life according to Locke is the fact that we are God's property. No one can take our lives for that reason because they are harming God's property. What about harming us or enslaving us? Locke argues that those rights are derivative: because we can't be sure that a person who tries to harm us or who tries to enslave us won't take our lives, we are protected from harm and slavery too. These are fences around the right to life. This workmanship argument is thus one of Locke's arguments in the Second Treatise grounding the right to life, liberty and property.</span> <span style="font-family:verdana;">He presents it as both known by reason (an understanding of what creation means) but leaves the impression that it can provide an interpretation of Scripture too. </span><br /><br /><span style="font-family:verdana;">But there is another argument in Locke that on the surface that seems to be contradictory. Locke also argues that we have property in ourselves. This language seems to contradict the workmanship hypothesis. Locke writes in the beginning of chapter 5: "every Man has a Property in his own Person. This no Body has a Right to but himself." Now this statement sounds very much like the widely held assumption that the average person has about his or her own rights. I have a right to myself and my body. This right to myself is what grounds the right to choose (A woman has a right to her body over the claim of her unborn baby). This right also would ground the right to die-its my self and my body and I have a right to do with it what I please. </span><br /><br /><br /><span style="font-family:verdana;">On the surface this later statement of Locke seems to conflict with the workmanship argument. As Michael Zuckert, a profound interpreter of Locke, puts it "This claim conflicts with the transcenent natural law in a particular manifest manner for that argument had held that huamn beings belong to God and not to themselves. Here Locke said the opposite." (<em>Launching Liberalism</em>, p. 193). Zuckert continues " We stand now at the most interesting and also the most elusive point in all of Locke's political philosophy. It is the most interesting, for its represents the core of his philosophy--the notion of human beigns as rights bearers by nature because they are self-owners. It is the most elusive, for Locke was not clear in presenting his reason or making this assertion." </span><br /><br /><span style="font-family:verdana;">The fact that Locke seems inconsistent on this point is troubling and raises complicated issues in Lockean interpretation. As I noted, these could be simply obscure problems in the history of political science or philosophy were it not for the fact that Locke had such an influence on the conception of natural rights in the modern world and in America and for the fact that most people routinely assume that we own ourselves, which is not in fact the only basis for rights in the natural rights tradition.</span><br /><br /><span style="font-family:verdana;">It is beyond the scope here to investigate completely the possible solution to the inconsistency in Locke. At issue in fact is not only this particularl inconsistency here but the very question of whether Locke was a consistent thinker and whether consistency should be assumed for him. Michael Zuckert has done a superb job in <em>Launching Liberalism</em> of reviewing the debate between those who think that Locke may have used inconsistencies intentionally to point to a deeper esoteric meaning that he felt he could not say explicitly. Others think that he was not a consistent thinker and that the Second Treatise was in fact a different kind of book perhaps that didn't have the rigors of his philosophy. This issue of consistency incidentally is not just a problem in Locke. It is arguably a critical question in all interpretation. Anthropologists for a long time have argued in a debate over "rationality" (see Bryan Wilson's edited volume, for example) whether to assume "natives" used the same type of consistency and logic that "we do." The question about Locke here is the same sort of problem. How do interpreters know when to attribute consistency to others and thus resolve the inconsistency or when to simply leave the inconsistency in place. </span><br /><br /><span style="font-family:verdana;">Zuckert offers a way of reading Locke that sees significant meaning in this apparent inconsistency. He argues that Locke essentially recognized that self-ownership was the foundation of rights. But he based this notion of self-ownership on the discovery of the "self." Locke realized that the human self was a different kind of self than other animate selves because it realizes that the "I" persists over time and is the basis for the "temporality" of the human being: "the human self is a temporal entity as no other is." (Launching Liberalism p. 195). In linking rights to this self, Locke breaks from prior tradition in not linking natural rights to natural law. "With the discovery of the 'I' self, Locke thus founded ego psychology as the study of the constitution of the 'I.'" I cannot do justice to the complexity of Zuckert's argument in this short context. Zuckert is one of the most interesting interpreters of Locke, paying attention to the complexity of Locke's thought and anyone interested in natural rights and Locke should treat Zuckert's works as a must read. </span><br /><br /><span style="font-family:verdana;">There is another interpretation of Locke possible, however, besides Zuckert'</span><span style="font-family:verdana;">s. It is possible that the contradiction between the workmanship hypothesis and the "self-ownership" argument in Locke is only apparent and not real. When Locke writes that "every Man has a Property in his own Person. This no Body has a Right to but himself" The question is what does such a right mean to Locke. Does Locke mean a person has a property in his body and life the way he has a property in creatures? Perhaps. But another possibility is that Locke means a person has a right in his own person to his own labor. In other words, a person's property is not over the body and life but in the output or labor over which a person does have control. Indeed, immediately after Locke says that a person has a right in his person he gives his famous labor justification for property. He writes: </span><br /><br /><span style="font-size:85%;"><span style="font-family:verdana;">Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature has provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. </span><br /></span><br />Here Locke explicitly says that "his labour" is "his own. <span style="font-family:verdana;">An alternative reading of Locke, then, is that Locke never thought that a person had self-ownership over his or her own body or self. Instead, what Locke thinks is that people have a right only to their own labour. Their bodies belong to God but their labor which is the output of their own selves belongs to themselves. Because their labor belongs to themselves, they can alienate it and "mix it" to make something their own. This labor theory of property of course raises all sorts of interesting questions that have been debated in their own right. But for the present purposes this gives an account of Locke that resolves the apparent contradiction. It also creates a kind of parallel between Locke's claim about God's rights in people (we are the workmanship of God, the result of God's labor and hence his property) and a Person's right to the output of their labor. Labor is what gives property rights, both of God in humans and of humans in the output of their labor. This interpretation would also make sense of the fact that though people are God's slaves (property) their output and effort belong to themselves. This would differ from a human slave whose output would be owned by the human owner. But in the case of humans, Locke says that they were created with the expectation that they would procreate and multiple and expend their labor to sustain themselves. So though humans are God's property, God gave them a purpose and entitled them to own the output of their labor. </span><br /><br /><span style="font-family:verdana;">The pluses and minuses of these various interpretations could be debated in much more detail than is possible here and I hope to come back to the question in more detail in another context. For at issue, as we see, is not not a thorny problem in Locke. That interpretive problem in Locke goes to the heart of a central claim in natural rights theory and assumptions of everyday holders of American rights: do we have rights to our bodies and ourselves? On my reading, Locke never intended to attribute self-ownership to individuals, the way Zuckert reads him. On Zucker's reading, that was Locke's innovation over Acquinas and Hobbes and represent a significant innovation. But though I disagree with Zuckert, that does not mean that I therefore adopt the view that we belong to God. If I am right that that is what Locke meant, that does not mean that that should be the foundation of rights in America. But of course that question starts another whole discussion of whether natural rights should be the foundation of American rights that I have begun to address elsewhere in my discussion of </span><a href="http://libertyandcapitalism.blogspot.com/2008/01/to-secure-these-rights-or-are-natural.html"><span style="font-family:verdana;">Scott Gerber's To Secure These Rights. </span></a>Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.com0tag:blogger.com,1999:blog-666144648202060558.post-33650296106942434792008-01-01T18:02:00.000-08:002008-01-04T17:45:06.862-08:00To Secure These Rights: Or Are Natural Rights and the Declaration of Independence Central to the Interpretation of the Constitution?To what extent is the interpretation of the Constitution dependent on the intentions of founders? Add your comments below.<br /><br /><p>There is a significant debate over the place of the founder's intent (originalism) in the interpretation of the Constitution and thus in deciding critical issues of social policy such as the death penalty, right to end life, abortion, same-sex marriage and almost any other contested issue of social policy. An important contribution to this debate is provided by Scott Douglas Gerber's <em>To Secure These Rights</em>. (New York University Press, 1995) a book which I just read but which has been out for some time. </p><p>The book is a good read and brings together a lot of different theoretical concerns related to natural rights, the interepretation of the Constitution and social policy issues. I recommend it to anyone who wants an overview of the issues and an introduction to what is at stake. </p><p>What is nice about Gerber's argument is that he offers an alternative theory of originalism that does not necessarily end up as conservatism social policy. Originalism is the theory that the founder's intent should be the limiting factor in understanding and interpreting the constitution. That theory has been used by Conservative justices and constitutional interpreters to essentially contest what were perceived to be abuses by more liberal courts in their interpretation of the Constitution. By reverting to the founder's intent, conservative justices and theorists argue, Americans can prevent the abuse of the Constitution and the judicial activism that makes the court the vehicle for legislation, which it was never intended to be.</p><p>Gerber's book is an interesting response to this argument because it comes at the problem from a new angle. Instead of arguing the way more liberal interpreters have, that the Constitution was not supposed to be limited to the founder's intent, Gerber argues that conclusions from originalism are not necessarily strictly conservative, as others have constructed them. Thus Gerber embraces originalism as a methodology but arrives at different, not necessarily conservative conclusions. Whether one buys originalism as a judicial philosophy or Gerber's conclusions about what the founders' intended is worth arguing about. But even if one disagrees with his conclusions, his contribution is important precisely because it constructs a version of originalism that is not harnessed to a conservative agenda. Originalism thus can also arrive at some "liberal" conclusions. This in itself makes it an important contribution to the debate. </p><p>Gerber builds his understanding of the founder's intent on the claim that natural rights philosophy is the theoretical foundation of the founders' philosophy. This is not an uncontroversial claim as we shall see. To make that argument, Gerber rests his case on a number of secondary claims: 1) that the <em>Declaration of Independence</em> reflected the natural rights philosophy of John Locke, 2) that the Declaration's philosophy of government should control the understanding of the founders' intent in the Constitution and Bill of Rights and that 3) John Locke's philsophy of natural rights can help adjudicate specific issues of social policy such as the death penalty, right to terminate life, abortion, affirmative action, and other contested social policy issues. As we shall see, each of these claims can in fact be contested, which itself raises some interesting questions about how history, political philosophy and constitutional interpretation should interact. </p><p>Setting aside those issues for a moment, however, Gerber's contribution is interesting and significant precisely because it argues for originalism but does not end up with what looks like a traditional conservative social agenda or policy conclusions. This is arguably the major contribution of the book, though one might conclude it is important for reasons other than what Gerber himself argues. </p><p>Specifically, one might argue that Gerber's arguments shows that originalism can be read in many different ways. Gerber argues that this in fact is one of the problems of original intent theory, the fact that different interpreters arrive at contradictory understandings of the Constitution's and the Bill of Rights original intent. Gerber's worries that the personal philosophical and personal commitments of interpreters can lead them to put whatever construction they like on the original intent. By contrast, his version of original intent-one that puts the core emphasis on natural rights philosophy-puts an end to that problem of original intent interpretation. It is no longer unconstrained. </p><p>To summarize a more complex argument, Gerber argues that the Declaration of Independence represents the founders' understanding of government and rights and therefore should provide the interpretive framework for understanding the Constitution. Since that natural rights philosophy rests on John Locke's <em>Second Treatise of Government</em>, Locke's work and natural rights philosophy should be the context used to interpret the Constitution. Thus when the Constitution is not clear we can turn to Locke. Appealing to Locke's philosophy and writings, Gerber argues, puts an end to the subjectivity of the interpreter trying to ascertain the founder's intent. Now there is a context in which to understand and limit what intent of the Constitution can mean. </p><p>While one can seriously applaud Gerber for offering a liberal understanding of original intent, one can reach a quite different conclusion. Instead of being persuaded that natural rights and the Declaration resolve the ambiguity of what original intent means, one can conclude the opposite: that Gerber has in fact shown that original intent is impossible to pin down conclusively and thus rests on difficult problems of historicism and historical method that plague historians as well as problematic assumptions about the coherence and clarity of "original intent." In other words, by contesting the conservative reading of original intent and suggesting an alternative one based on natural rights philosophy, Gerber arguably proves that original intent can be interpreted in a wide variety of ways and that building a context of interpretation is precisely what is difficult and problematic. </p><p>Gerber himself is not unaware of the fact that many interpreters of the Constitution believe that the Constitution was intended to evolve in response to changing circumstances. He rejects their approach as being too subjective and lacking a framework that prevents the Constitution from being whatever anyone wants it to be. And yet, one can argue that the approach that seeks original intent, despite its goal of being more objective, actually isn't. </p><p>Gerber does not really engage this quesiton seriously and thus leaves open a major question for his approach. For it is arguable, and I would say true, that the very act of determining original intent is itself exceedingly problematic. The problem is precisely the question that historians face all the time: how to determine the appropriate context for determining a document's meaning. While Gerber has given one possible rendition of the founder's original intent (and a useful one at that) he has in fact come down and taken a position on a host of interpretative historical questions that are up for grabs. To cite a few examples, it is at least open to question whether the Declaration is best described as a document that "embraces natural rights" and is "Lockean". Gerber is aware of the debate among historians of the American Revolution over how central Locke's philsophy was to the ideas leading to the revolution. There is a debate in fact between those favoring a "republican synthesis" (Woods, Pocock, Bailyn, Dunn) and those who argue for a heavy Lockean influence (Dworetz, Hamowy, Zuckert). Gerber takes the side of those who favor the Lockean influence thesis. Furthermore, Gerber dismisses the accounts of the Declaration that downplays the Lockean themes. While interpretations such as that of Gary Wills, have been subjected to substantial critique by Hamowy and others, and while there has been a reemphasis on Locke's influence on pre-revolutionary thinkers by Zuckert (<em>Natural Rights and New Republicanism</em>) Dworetz (<em>Unvarished Doctrine</em>) and others, there is still a good case to be made that the Declaration is itself ambiguous about natural rights and that there was ambivalence about natural rights among American writers in the decade up to the Declaration.(see for example my own Schwartz, <a href="http://freedomandcapitalism.com/Natural_Rights_IV.html">Natural Rights and the Declaration of Independence, Part IV)</a> Moreover, there is evidence that Jefferson himself had an alternative theory of rights than the classical Lockean natural rights and that Declaration itself equivocates on key aspects of American rights. If this reading is correct or valid, then it hardly provides an solid foundation on which to construct a theory of the Constitution. </p><p>But even if one still concludes that the Declaration does "embrace" natural rights philosophy, there is still another interpretive leap to be made. Gerber argues that the Declaration (and by extension natural rights philosophy) is the key interpretive context for understanding the Constitution and the Bill of Rights. But those documents interestingly enough do not articulate a philosophy of government or explicitly embrace a natural rights philosophy. There is thus an interpretive decision that the Declaration's explicit philosophy of government is the best summary of the founders intent. But the Declaration was written in 1776, as an explanation to the world justifying the colonies' decision, to not only go to war (which had arleady started) but to declare independence. The Constitution was ratified in 1787 (more than 10 years later) after the states had themselves created constitutions, the Articles of Confederation had been ratified and perceived inadequate, and the Constitutional convention and debate on the Federal constitution had occurred. This lapse of ten years is a highly significant period in which "the framers" not only changed to some extent (Jefferson wrote the Declaration but was not present for the Constitution, and James Madison and Alexander Hamiliton were not present for the Declaration but were present for the Constitutional debate and played the formative role in the Federalist papers.) Gerber is not unaware of this problem and tries to address it by showing that state constitutions and lawmaking and debates during the convention continued to turn to the Declaration's language and ideas. </p><p>Its beyond the scope of this commentary to get into this issue in detail but another reading of the same period would suggest that in fact the founder's ideas had shifted significantly. While they were focused on their rights under Great Britain they had one set of views about rights and representation. But as they started to shift to the question of creating their own governments, both the state constitutions and then the Federal constitution, they realized that in fact the very question of what representation means is highly problematic. The debates over the State Constitutions, as well as the debates leading to the Federal Constitution on the relationship of state to federal power, reflect a dispute about what rights mean or should mean. In other words, they recognized that the implementation of right protection could take many different forms And the debate over whether the founders were "republican" or "lockean" partly reflects tha t the founders did not have a monolithic view of how rights should be applied in practice. The appeal to the Declaration moreover was an attempt to associate the authority of the past with the particular view of rights that was being proposed. Everyone wanted to claim they were protecting the rights "we fought for." But not all agreed on what those rights were. Thus on this interpretation, the Declaration did not really resolve the question of what natural rights mean and the subsequent debates emerged as the founders realized they didn't in fact all agree. </p><p>This reading of history would then suggest that the Declaration has less meaning for the interpretation of the Constitution than Gerber wants to give it. And it leads to another question that goes to the heart of Gerber's claim: even if we agree that "natural rights" is the philosophy that should frame our understanding of original intent, is the meaning of natural rights straightforward? </p><p>Gerber implies that in fact it is. Thus once he establishes that the natural rights is the framework in which we should interpret the Constitution he argues that the appeal to natural rights will resolve ambiguity about the founder's intent on specific issues. But this too is debatable. </p><p>As an example, Gerber argues that the death penalty should be permitted under a constitution that rests on natural rights. This is because Locke in his Second Treatise argued that an individual does forfeit the right to life if he or she takes the life of another (ie murder) and thus violating the foundational right of life at the heart of natural rights. Gerber also argues that there should be a "right to die" based on his reading of Locke. In his reading, Locke does permit suicide in some specific cases such as slavery where the hardship outweighs the value of life. </p><p>I would argue that Gerber's reading of natural rights is problematic for several reasons. To be begin with, he never examines the question of whether it makes sense to found the Constitution of this country on natural rights at all. Even if that were the founders intent to do so, it might be worthy of debating whether that was a good decision. And if it wasn't it raises some interesting questions about original intent. What if we didn't agree with the founders? Or what if their understanding of natural rights was flawed? </p><p>But apart from those interesting questions, it is at least reasonable to ask whether Locke's is the only reading of natural rights that one could find. To be sure, while Locke's interpretation of natural rights is one of the most important statements in the modern period, it is conceivable that a different reading of natural rights would be possible. Indeed, there is a substantial debate in Lockean scholarship (see Zuckert's <em>Launching Liberalism</em> for a good summary) that notes how Locke had a significant gap in his theory. In the Second Treatise, Locke assumed that the law of nature was self-evident to all (a founding assumption of his natural rights argument) but in his <em>Essay Concerning Human Understanding</em> and elsewhere he acknowledges that the discovery of natural law may not be self-evident. If the discovery of natural law is problematic, then even on Locke's own interpretation it would make sense to question whether his discernment of rights is the only one possible. </p><p>To complicate matters still further, even if we agree that Locke's interpretation of natural rights should be the framework in which to understand the Constitution, it is debatable we would all agree on what Locke meant or how Locke would have answered some specific questions. To cite two examples, Locke himself recognizes that people could be enslaved if they took the life of another. That is, a person who deserved the death penalty could opt for slavery instead. But our constitution through the amendment process has ruled slavery out as violating basic human rights. A return to Locke would mean that we should reopen the slavery question and make slavery a legitimate option. (For a tongue and cheek statement of this view, see Schwartz, ""<a href="http://freedomandcapitalism.com/Freedom.html#LibertyAndPublicGood" target="_blank">Liberty and the Public Good: Endorsing Suicide and Slavery as Part of a Free Society</a>". Or to cite another example, Gerber argues that abortion should be forbidden by natural rights which are designed to protect life. Yet the problem is we don't know when life starts. He writes in response to Lewis Lehrman "The Declaration and the Right to Life: One Leads Unmistakably from the Other" that "Lerrman asserts as an article of religious faith that life begins at conception. He fails to appreciate, however, that under the Constitution the question of when life beings is a scientific one, not a religious one, because the first amendment codifies the strict wall of spearation between church and state that was so fundamental the Founders, as well as to Locke."</p><p>I cite this example because it poses what I see as the fundamental dilemma in deciding what natural rights imply and what Locke meant. The protection of life in natural rights does not tell us when life starts. But the question of how we decide that question is precisely at issue and one might argue that most issues of social debate are precisely of this kind. I see no evidence in the Constitution that "science" should tell us when life starts (although I agree with Gerber that religion shouldn't tell us when life starts because of the separation of church and state). But Locke certainly didn't indicate which trimester life starts in, precisely because technology advances raise new questions that earlier views had not anticipated. Trying to use Locke to resolve our issues of social policy is like turning to Scripture to do the same. We have to extrapolate beyond where Locke or Scripture went and apply some paradigm of interpretation to get an answer. The question of how to extend Locke or natural rights in a Lockean fashion to particular issues thus throws open the very indeterminacy of meaning that Gerber is trying to lock down by appealing to natural rights. </p><p>In my view, many of the great questions under social debate are precisely of this sort. And on my reading of Locke, Locke understood that there would in fact be a majoritarian approach to resolving them. Indeed, Gerber completely ignores the central role that the social contract plays in Locke's philosophy. On Locke's account, individuals give up some of their natural rights to join society and benefit from social life. After that point, they adhere to majority decisions. As Locke put it in the Second Treatise: </p><p><em>For when any number of Men have, by the consent of every individual, made a Community, they have thereby made that Community one Body, with a Power to Act as one Body, which is only by the will and determination of the majority. For that which acts any Community, being only the consent of the individuals of it, and it being necessary to that which is one body to move one way; it is necessary the Body should move that way whither the greater force carries it, which is the consent of the majority, or else it is impossible it should act or continue one Body, one Community, which the consent of every individual that united into it, agreed that it should; and so every one is bound by that consent to be concluded by the majority (II 8, 96)</em> </p><p>Thus any account of Locke's views and of natural rights still has to have a theory of what role the institutions of government have in deciding cases of ambiguity and in deciding what is in the hands of the majority. An appeal to natural rights therefore may not eliminate the ambiguity about original intent nor unambiguously decide controversial cases. A judicial system will still be needed to put an end to controvery over what natural rights do or should mean. And that means that it is institutions that resolve the ambiguity of meaning, not objective methods of discerning original intent. </p><p>In the end then Gerber's work is an outstanding contribution for contesting the view that original intent interpretations always end up as conservative social policy. But in trying to bound original intent within a natural rights Lockean philosophy, Gerber's analysis shows just how "constructive" is original intent. It depends on a rich historical analysis that builds up a historical interpretation (the Declaration is founded on natural rights, and the Declaration is relevant to the Constitution), as well as a particular reading of Locke and Locke's understanding of natural rights. In a free society in which representation matters surely these questions of history and interpretation, which can be contested, need mechanisms "to end the debate," as Thomas Paine put it in Common Sense. We are thus led back to institutions such as the court and legislature which ultimately have to step in and resolve the ambiguities of history and original intent, which cannot be ended simply by debate by intelligent people. Some other mechanisms that are agreed to by majorities have to end the debate which can't be resolved by reason alone.</p>Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.com0tag:blogger.com,1999:blog-666144648202060558.post-27207160313458776202007-06-06T20:02:00.000-07:002007-12-29T14:35:39.279-08:00Kevorkian, Natural Rights and Right to DeathJack Kevorkian has been arguing that the right to end suffering is one of our natural rights and wrote a book called "Amendment IX, Our Cornucopia of Rights," which spells out his theory on natural rights.<br /><a href="http://www.freep.com/apps/pbcs.dll/article?AID=/20070606/NEWS03/706060368/1001">http://www.freep.com/apps/pbcs.dll/article?AID=/20070606/NEWS03/706060368/1001</a><br /><br />There are good reasons in my view to allow people to end their lives when suffering. But arguing that it is a natural right is the wrong way to approach the issue. Natural rights are problematic for several reasons. Not only is the conception of natural rights problematic in general, but the original theory of natural rights would not have endorsed the right to end one's life. In John Locke, who is the most prominent exponent of natural right theory, one does not have a right to commit suicide or sell oneself into slavery. This is because Locke argues that we are all the workmanship of God and as the product of God's labor, we have no right to take our lives. Indeed, we don't even own our bodies. This by the way is the same reason that Locke gives for the rights to life. Since everyone is the workmanship of God, one person can't take another person's life. The classical natural rights tradition therefore would disagree that there is a natural right to end one's own life. There are good reasons to allow people who are undergoing terrible suffering to end their lives. But basing it on an argument from natural rights is not the right way to justify the argument.<br /><br />I have talked about Locke's view of of Suicide and human's being the workmanship of God in my essay on Suicide @ <a href="http://www.freedomandcapitalism.com/">http://www.freedomandcapitalism.com/</a>Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.com0tag:blogger.com,1999:blog-666144648202060558.post-17104900459523142102007-05-21T18:23:00.000-07:002008-01-11T06:56:01.998-08:00Why Have Liberals Abandoned the Concept of LibertyI agree with H. N Hirsch when he writes that "Liberals lack a totally persuasive constitutional theory, and will continue to lack such a theory so long as they remain uncomfortable with historical analysis and with the idea of liberty." (A Theory of Liberty, 8). Liberals have abandoned the concept of liberty to libertarians and conservatives allowing them to define the terrain defined by the term liberty. It is critical to liberals to reclaim that concept of liberty and to articulate an understanding of how the concept of liberty fits with and supports a progressive view of society. Contrary to what conservatives claim, liberal views are not "socialist" but are fully in accordance with the tradition of liberty as defined by the modern tradition and within the founding ideas and traditions of the United States. My own essays on liberty are an attempt to fully develop a progressive view of liberty. <a href="http://www.freedomandcapitalism.com/">http://www.freedomandcapitalism.com/</a>Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.com0tag:blogger.com,1999:blog-666144648202060558.post-15160377086608930252007-03-14T09:10:00.000-07:002007-12-29T14:35:53.576-08:00Anti-Smoking Rules in Belmont<a href="http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/03/14/BAGP7OKTN41.DTL&hw=smoking+restrictions&sn=001&sc=1000">http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/03/14/BAGP7OKTN41.DTL&hw=smoking+restrictions&sn=001&sc=1000</a><br /><br />Belmont is considering the strict rules against smoking that would include a proposal to ban lighting up in multi-unit apartments and taxicabs and within 20 feet of any public building. Belmont is the first to consider prohibiting smoking in multi-unit residential buildings.<br /><br />Is this not a classic example of liberty being violated? Don't I have the right to smoke in public or in my home? The issues goes to the heart of our debates about what liberty is and how far it extends. There are other ways of course in which we don't want the state to intrude into our homes, for example, in prohibiting certain types of sexual activity. Privacy is a bar to certain types of intrusions. But isn't cigarettes different? Smoking causes harm to other people in the multi-unit dwellings. Is smoking cigarettes like sex then? How sex is conducted in the bedroom does not cause harm to others. Well, at least physical harm. Some people might argue that sodomy causes social harm. I wouldn't make that argument but the fact that some people might shows that the very issue of harm is partly in the eyes of the beholder which is the problem. But cigarette smoking causes physical harm, which is different than just "harm in the eyes of the beholder." In this sense, smoking does violate the right of others to "life, liberty, and property." It certainly impacts "life." And some writers, like John Locke, wrote that we had a right to "life, liberty, health and property." Smoking in the vicinity of others harms others health. So it is arguable that smoking is different than sex which happens in the privacy of the bedroom. One does "actual physical harm" the other does harm only in the eyes of the beholder.<br /><br />But smokers should have options to risk their lives. People risk lives every day to jump with bungy cords or from planes with parachutes. Risk is somethign that people should be free to pursue as long as the consequences are not harmful to others physically. Whether one can take risks that are harmful financially to others (like we have to organize a search party to find a person lost hiking in the wilderness, is another question to come back to).<br /><br />So if Belmont tightens up the rule to protect health, that seems defensible. But they should open up places where people who want to smoke can smoke. How we deal with the financial burdens of cancer is another question that should be debated as well.Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.com0tag:blogger.com,1999:blog-666144648202060558.post-14676799683315736822007-03-10T16:42:00.000-08:002007-12-29T14:36:14.863-08:00Don't Let Dick Have His GunInterpreting the Second Amendment broadly, a federal appeals court in <a title="More news and information about Washington, D.C.." href="http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessions/washingtondc/index.html?inline=nyt-geo">Washington</a> yesterday struck down a gun control law in the District of Columbia that bars residents from keeping handguns in their in their homes.<br /><a href="http://www.nytimes.com/2007/03/10/washington/10gun.html">http://www.nytimes.com/2007/03/10/washington/10gun.html</a><br /><br />Should people have the right to keep guns in their homes? Is that what the second amendment means when it says "the right of thepeople to keep and bear Arms, shall not be infringed?" Maybe that passage simply refers to the fact that our limbs "our arms" should be protected and the government has no right to infringe on our right to our bodies. Whoever said it refers to "guns" anyway?<br /><br />Didn't John Locke say,<br />"Every one as he is bound to preserve himself, and not to quit his Station willfully; so by the like reason when his own Preservation comes not in competition, ought he, as much as he can, to preserve the rest of Mankind, and may not unless it be to do Justice on an offender, take away, or impair the life, or what tend sot the Preservation of Life, the Liberty, Health, <strong>Limb</strong> or Goods of another. " (2nd Treatise on Government 2:6)<br /><br />Isn't that what our founders meant when they said "a right to keep and bear arms." No government has the righ to take away "our arms", that is "our limbs". And we have a right to bear arms too, not just keep arms. That must mean abortion is permitted as well. Because it doesn't say we have a right to bear children, but a right to bear arms: that is a partial child, not a whole child. Which means the government doesn't have the right to force us to bear a full child.<br /><br />This is ridiculous you say. "Arms here doesn't refer to 'limbs' or a 'fetus'. It refers to guns. "And how do you know," I ask? "Because the beginning of the amendment says "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep..." the context shows that the amendment is referring to guns, not limbs.<br /><br />"Hmmm, good point. So you are saying that the second half of the amendment--our right to have a bear arms-- is linked to the first part of the amendment 'the need for a well regulated Militia'. Is that right?" "Yes," you say. "I see. And do you think we still need a well regulated militia?" "Well, not exactly," you say. "We need an army."<br /><br />Okay, I'll grant you that. But is an army a militia? No. Indeed when the founders wrote this early amendment there was still strong sentiment against having "a standing army." Indeed, one of the fundamental rights of liberty was thought to be the right "not to have a standing army" (i.e., a permanent army). One's rights were thought to be violated if government had a standing army. That suggests that we are violating the law by having standing army today....but let's tackle that subject another time. It is clear that a militia referred to in the second amendment was not a standing army. And the presence of our army today does not mean we have a militia.<br /><br />In any case, if the first half of the amendment is critical for explaining the second half, and the right to have and bear arms only becomes clear because of the first half where it mentions the militia, does that not imply that having arms, I mean guns, is related to having a militia? But how does having guns in one's home relate to having a militia? Is there a militia in DC?<br /><br />"Dick Heller, a guard at the Federal Judicial Center who was permitted to carry a gun on duty and wanted to keep one at home." Is Dick Heller part of a militia? Is being a guard at the Federal Judicial Center our modern equivalent of a militia back then? Is Dick protecting us against the encroachment of government or is he protecting us from the rifraff who show up at the courts?<br /><br />And even if we said that Dick's job was a modern equivalent of the militia, although that seems like a stretch to me, but then again I'm not a Federal judge, does the Amendment say people can keep them at home? They have a right "to keep and bear Arms". "Bear" means they can wear them on their person. And "keep" I guess could mean "keep them at home." But it is a right of "the people", not the right of a person. And so while the people have the right, it does not say that every individual has a right. The people have a right to keep (ie the government can't have the monopoly on arms. But there are other ways of ensuring that the people have access to arms outside of the government. I suggest that we set aside a military (militia) building, where an elected official or elected group has the key. And these people are not part of the military establishment. Lets put the guns in there and don't let the government have access to them. But don't let people take them home. After all I have a right to "life, liberty and property" too and when someone has a gun, my rights are threatened by guns in society. I have a right to bear arms, and if others have guns, I'm worried I'll get shot in the arms.<br /><br />And one more thought. The idea that we have guns to protect us from centralized government power is a bit comical now. I can just see Dick carrying his gun to protect us against the government, when the government gets a nuclear bomb ready to drop on us. Maybe the amendment should now read that we can all keep nuclear bombs in our homes too. That evens out the score so that if George Bush gets really mad, we can can fight back.<br /><br />If the Federal court decision yesterday is any indication of where we are going, I suggest that we need a constitutional amendment. Let's get rid of the second amendment completely. It was an afterthought anyway. And the times are different now. We have an amendment that we says that we can change our constitution. The founders knew that we might not like things they decided. If the founders saw how many people were carrying machine guns, they would not have had such a loosely worded amendment. They would have come up with some rational ways to make sure that government power can be checked. I'm more afraid of Dick and his gun than I am of the government if Dick's gun is taken away.Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.com0tag:blogger.com,1999:blog-666144648202060558.post-63824780571148578562007-02-28T11:28:00.000-08:002007-12-29T14:36:24.058-08:00Liberty and The Public Good: Endorsing Suicide and Slavery as Part of a Free Society.Everyone is talking about liberty lately and how our liberties have been curtained over the past century by a growing big government which has intruded too far into the private lives of citizens. We need “simple rules for our complex world”. A society that embraces liberty should minimize government and maximize free markets, since “economic freedom is part of freedom.”<br /><br />Liberty itself is important for maximizing the public good, because freedom empowers individuals to deviate from the norms, and thereby envision new ideas, invent new technologies and thereby advance society in a way that benefits all. Advance for all is conditional on individual liberty. If we try to eliminate deviation, we kill innovation that leads to advance. Liberty itself is justified, not by natural rights, which are “nonsense built on stilts” but by the best way to organize society to maximize the public good. It is the public good that justifies liberty, because a society organized by liberty is one that benefits the most people. Since central planning and human analysis cannot successfully fathom how to achieve the social good, the best way to achieve the social good is to leave things in the hands of individuals, who following their own interests, produce outcomes that are beneficial to all. <a title="" style="mso-endnote-id: edn1" href="http://www2.blogger.com/post-create.g?blogID=666144648202060558#_edn1" name="_ednref1">[i]</a><br /><br />I completely agree with this utilitarian perspective on liberty but believe its full implications have not been fully understood by those who endorse this view of liberty. As a consequence, we have not yet taken this utilitarian view of liberty to its logical conclusions. If we are really to adopt liberty, then we must be strict in adhering to the logic of liberty. If we do so, we have some changes to make to fully implement a society that fully embraces liberty. Today we miss the mark by relying on liberties that derive from the older natural rights justification of liberty. I wish, therefore, to make a modest proposal that takes the utilitarian view of liberty to its logical and necessary conclusion.<br /><br />My modest proposal is this: that if we really embrace a utilitarian view of liberty, we should change our laws to permit suicide and slavery. Specifically, we should immediately acknowledge that a society that is truly free in this sense allows people to take their own lives, sell themselves into slavery, and therefore allows others to purchase and traffic in slaves, under certain conditions. This sounds on the surface contradictory. How can a free society endorse slavery? But we shall see that if liberty is really founded on utility, then slavery and suicide should be embraced. Moreover, I have a specific proposal about which group of people would make the best class of slaves, a point to which I return later, after first justifying slavery as an institution in a free society.<br /><br />The fuller essay is published on my site: <a href="http://www.freedomandcapitalism.com/">http://www.freedomandcapitalism.com/</a><br /><br /><a title="" style="mso-endnote-id: edn1" href="http://www2.blogger.com/post-create.g?blogID=666144648202060558#_ednref1" name="_edn1">[i]</a> These views in various forms can be found in John Stuart Mill, F. A. Hayek, Milton Friedman and Richard Epstein’s writings.Freedom Capitalism and Religionhttp://www.blogger.com/profile/08504240632553572324noreply@blogger.com1