Category: Libertarian

Applying facts to a set of rules is not controversial.

From the Supreme Court’s ruling that detainees at Guantanamo Bay have the right to challenge their imprisonment, a ruling I think shouldn’t be controversial in any way, a paragraph in this story seems odd.

As both sides of the court acknowledged in Thursday’s decision, the cases exposed fundamental differences in the court’s vision of judicial power. The conservatives favor adherence to strict rules and regulations promulgated by the political branches. The liberals are content to let judges judge, working out the boundaries between constitutional rights and national security.

Is that an accurate way to assess what the liberal judges are doing? I don’t think so. (I haven’t read the decision, so maybe they made statements to that explicit effect.) Rather, it’s more likely they’re working out the boundaries of constitutional rights based on the Constitution’s text and the facts of the case(s) at hand. The outcome for national security is more speculative in nature, without a clear method for determining consequences.

It’s often been stated in the last seven years that the Constitution is not a suicide pact. To an extent, yes. But it’s also absurd to suggest that the Constitution means only what is convenient for those in power at any given moment. What’s the purpose of a Constitution in that world?

If the Constitution is flawed, make the case for changing it. If it’s not flawed, honor it. Pretending it doesn’t exist is not a valid choice.

Returning with a bit of this and a bit of that.

My schedule’s been a bit chaotic over the last two weeks. It’s too late to start any in depth blogging tonight, so instead, here are a few quick recaps of the news items I’ve logged as interesting over the last week or so.

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First, I know nothing of the legal argument involved in the recent case of Major League Baseball and “its” statistics. I don’t doubt that the Supreme Court was correct to reject the case because there’s just no property right there to describing what happens during a game. The recap from a specific service provided would easily meet a licensing requirement, but I’m not paying a fee for saying that Chase Utley has a home run in five straight games or that he was 3-4 with a homer and two singles last night.

That said, anything that gives Commissioner Bud Selig a figurative black eye is good. He had “good enough”, which was more than the owners could legitimately claim. Yet they let greed at the expense of fans interfere with basic long-term business sense. Again. More than any other sport, statistics dominate baseball. Let fans have that and they’ll continue to demonstrate their love for the game by buying tickets and jerseys and the $200 television package. This is not complicated.

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I haven’t paid enough attention to the FLDS case in Texas to remark on the judge’s ruling that the State must return the children to their parents. However, this is not proof for those libertarians who believe that the state has no role in parent-child relationships. An anecdote makes a strained theory, at best. Many libertarians have made convincing arguments that the state has a legitimate role in the parent-child relationship, principally in protecting the rights of the child.

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Sebastian Mallaby misses on “pro-growth”:

… Given the yawning budget deficit and the coming demographic crunch, tax cuts aren’t affordable anyway.

The same goes for deregulation. Getting the nanny government out of trucking and airlines yielded huge benefits in the 1970s and 1980s. But the “price-and-entry” regulations that used to cosset such industries have long since gone, and remaining regulation is harder to demonize. We are left with government rules to protect the environment, check the safety of medicines and prevent systemic financial crises. These rules are generally helpful. There’s nothing “pro-growth” about bashing them.

“Generally helpful” is enough? Is Sarbane-Oxley hard to demonize for being only generally helpful? On what criteria may we base future decisions to cause just a little, allegedly inconsequential harm?

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Like extending movie franchises 20 years later, old habits die hard:

Members of the Russian Communist party have called for the new Indiana Jones film to be banned in the country because they say it distorts history.
…

St Petersburg Communist Party chief Sergei Malinkovich told the Reuters news agency it was “rubbish”.

“Why should we agree to that sort of lie and let the West trick our youth?”

He said many Russian cinemagoers were teenagers who would be “completely unaware of what happened in 1957”, when the film is set.

Good thing the censoring communists are no longer in charge in Russia. Oh, wait.

(I liked last year’s Die Hard movie, and I’m looking forward to seeing the new Indiana Jones movie.)

John McCain endorses majoritarianism over individual rights.

From John McCain’s speech to the NRA:

Real activists seek to make their case democratically — to win hearts, minds, and majorities to their cause. Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and activist judges follow a different method. They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that. Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned.

Is there an upper bound on how many individuals may have their rights violated before we conclude a constitutional solution is better than a democratic solution? If so, what’s the number? Is there a distinction marking which rights are sacred and which may be violated at will by a majority? Is there any reservation worth considering to limit this complete trust in The People that might acknowledge those hearts and minds that are either incapable or unwilling of being won?

Like every politician, John McCain is a propagandist unworthy of being in a position of leadership. He will not behave as a leader.

Bob Barr on Same-Sex Marriage and Federalism

Here is Bob Barr’s statement on the California Supreme Court ruling regarding same-sex marriage:

“Regardless of whether one supports or opposes same sex marriage, the decision to recognize such unions or not ought to be a power each state exercises on its own, rather than imposition of a one-size-fits-all mandate by the federal government (as would be required by a Federal Marriage Amendment which has been previously proposed and considered by the Congress). The decision today by the Supreme Court of California properly reflects this fundamental principle of federalism on which our nation was founded.

“Indeed, the primary reason for which I authored the Defense of Marriage Act in 1996 was to ensure that each state remained free to determine for its citizens the basis on which marriage would be recognized within its borders, and not be forced to adopt a definition of marriage contrary to its views by another state. The decision in California is an illustration of how this principle of states’ powers should work.”

I’m not distracted by the potential implications of Barr’s view of federalism. This isn’t nearly enough to assume he holds the same flawed understanding of federalism espoused by Ron Paul, so I won’t assume that. But, if not for the second paragraph, I might consider such a possibility harder.

About that second paragraph… First, this from The Liberty Papers:

Constitutionally speaking, of course, Barr is entirely correct. If states like New York, New Jersey, and California want to legalize gay marriage, they should be allowed to do so. The problem with the DOMA, though, is that it would seem to be a direct violation of the full faith and credit clause of the Constitution. With very limited exceptions, states are required to recognize the validly passed laws of their sister states, including laws about issues like marriage, adoption, and inheritance.
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More importantly, though, Federalism simply doesn’t mean the same thing that it meant before the Civil War. The passage of the 14th Amendment, and the Supreme Court case law that has grown from that Amendment, forever changed the relationship between the people, the states, and the Federal Government, and one of the things that changed is the idea that you don’t lose your rights as an American citizen simply because you move from one state to another.

That’s my understanding of this issue. Given how the full faith and credit issue with regard to DOMA is much stickier than just a “leave it to the states” position implies, Barr’s second paragraph is more an indication of how I should evaluate his approach to governing. Is he suggesting that we should behave as if simplicity is sufficient where facts demonstrate complexity? Is the stated intent behind legislation more important than the outcome of (poorly-worded) legislation? Does it matter if the negative consequences of simplifying the complex are predictable?

What Barr wanted to ensure with DOMA is worth discussing, but how he wanted to prevent states from “being forced” to accept valid laws of other states indicates a disagreeable approach to governing.

Judicial activism and Individual Rights

Obviously I think the California Supreme Court’s ruling on same-sex marriage is the correct outcome. I’ll leave the legal analysis of how the Court got there for others to judge. Still, this is an interesting, positive development.

I wish to comment on one factor that will appear in the coming weeks, and will probably quickly grow within the presidential election. Many will claim judicial activism, as if that’s a valid claim. Our courts do not exist to rubber stamp any and every rule a legislature can dream up. Enforcement is the Executive’s job. The Judiciary must interpret. Bowing to the mythical “will of the people” gets us no closer to the truth than waiting for a new constellation to appear in the sky with the correct outcome spelled in the stars.

An Andrew Sullivan reader wrote this to Mr. Sullivan:

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The decision is an arrogant, impatient one. My gay friends are impatient, and I understand their impatience. But the Court should have trusted the people.
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It was only a matter of time. A democratic consensus, based on reason and persuasion, is much better for everyone, in all the states, in the long run.

Mr. Sullivan responds with the perfect rebuttal:

Yes, and it has been building. But a republic is not just a democracy. It is a confluence of constitutions, laws, legislatures, executives and courts. In 1948, the California court ruled against miscegenation bans. It took three decades for that act of “judicial activism” to gain consensus nationally.

Exactly. And constitutions are first. Where the laws of the legislature violate that, the courts must reject the laws. Anything else is mob rule.

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This fits into the discussion on how civil law should treat medically unnecessary circumcision of male children in America. The procedure is ethically and scientifically flawed. It should not be permitted. Legislatures have already shown an willingness to exclude male children from this protection acknowledged for every other American. Democracy (i.e. mob rule), with a nod to social and religious justifications before individual rights protected by constitutions, should prevail, some say. What parents want is worth defending because altering the healthy genitals of their male children is their choice. It is a right that supersedes the rights of the child, both in individual religious freedom and bodily integrity/freedom from harm.

The political side of the issue is an unprincipled, anti-constitutional mess in America. The concept of individual liberty is lost. The court’s role is to uphold constitutional protections for every individual. It is critical to defend the rights of the minority against the tyranny of the perceived majority. Where tradition and social expectations conflict with individual rights, tradition and social expectations have no merit. The role of the court is to set these legal excuses aside in favor of individual rights. This is not activism.

Courts are not infallible. Yet, as Mr. Sullivan’s example shows, society has a way of catching up to the “activism” of courts, with an eventual understanding that wisdom and logic demanded the outcome. History will show that with same-sex marriage. It will show that with medically unnecessary child circumcision. The former before the latter, but the day for both will arrive.

Does Bob Barr hurt Obama’s chances?

This entry by John Scalzi on Bob Barr’s announcement that he is officially running for the Libertarian Party nomination for president is one of the better takes I’ve read on the prospects of Barr’s candidacy.

But let’s be real, here: the question [sic] not really whether I put Barr ahead of McCain in my voting queue, since I had no intention of voting for McCain in the first place. The question is whether some folks who might otherwise vote for McCain will do so, and whether there will be enough of them to constitute a genuine drag on McCain in the election. …

That’s certainly the case to an extent, but I wonder why no one seems to be talking about the other possibility, that Obama’s vote totals will also fall. I know I’ve encountered libertarians who are considering voting for Obama because they’d never vote for McCain. If they now vote for Barr if he wins the LP nomination, how much will that matter to Obama’s chances? I don’t have the answer, but it’s a question at least as worthy when considering the possibility that McCain is auditioning for a third Bush term. I know of few libertarians who would consider that for a moment, so Barr just isn’t stealing votes from there.

The liberaltarian meme is mostly policy crap designed to push libertarians to embrace a progressive agenda rather than a (classical) liberal approach to government. But it has adherents. How will they vote?

For what it’s worth, the quick link Mr. Scalzi provides to Barr’s policy positions reminds me why I’m very skeptical of Barr. The anti-immigration stance is troubling, at best, but throwing his support behind the Fair Tax as a “well-researched alternative” leaves me cold. Well-researched, maybe, but accurately marketed? Not so much.

“I don’t look at your bum, bum-looker! Cheeky monkey!”

Via Boing Boing, speed cameras in England are clearly not automated or tied to any sort of radar. Rather, the only conclusion is that someone receives a paycheck to observe every moment the camera captures. How else would it capture – much less alert authorities – a passenger in a car traveling within the speed limit mooning the camera? (mildly NSFW link)

Police may take action against the man for public order offences and not wearing a seat belt.

The police lineup should be interesting.

Jeremy Forsberg, of the Northumbria Safer Roads Initiative, said: “This behaviour is simply ridiculous – it’s clear what he was thinking with what he had on show.

“Not only is it disrespectful, but distasteful and offensive, particularly to children who may have been exposed to this nonsense.

Of course the behavior is ridiculous. And as a driver, I’m sure it would’ve been distracting. But it takes a special kind of “liberty-minded” authoritarian mentality to express moral outrage at such an action by releasing a photo for broadcast all over the world – where our fragile children will see the offensive image – because children may have been exposed to the man’s bum. They’re certainly exposed now, genius. Although I suppose the government censor the BBC. For the children.

Post Script: Obvious title reference here.

Hey! Other topics exist. Who knew?

I’m not an attorney, so I can’t get completely into the questions of what Congress has restricted explicitly versus what leeway is authorized. But the Department of Justice has an insightful, albeit obviously broken, theory of how a liberty-minded society should fight an open-ended, poorly-defined war:

The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.

The legal interpretation, outlined in recent letters, sheds new light on the still-secret rules for interrogations by the Central Intelligence Agency. It shows that the administration is arguing that the boundaries for interrogations should be subject to some latitude, even under an executive order issued last summer that President Bush said meant that the C.I.A. would comply with international strictures against harsh treatment of detainees.

While the Geneva Conventions prohibit “outrages upon personal dignity,” a letter sent by the Justice Department to Congress on March 5 makes clear that the administration has not drawn a precise line in deciding which interrogation methods would violate that standard, and is reserving the right to make case-by-case judgments.

“The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act,” said Brian A. Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public.

This administration can’t be trusted. We knew that already, so this is just another example. I’m more amazed at my capacity to be surprised by this egregious implication.

Forget the injured and dead prisoners, I suppose. The former will heal, unless they won’t, in which case we’ll classify them with the latter, who deserved it. I do sometimes forget that our government only incarcerates terrorists, not accused terrorists. As long as the intent of the is to prevent a threatened terrorist attack, it can’t possibly be humiliating or *gasp* abuse.

I’m so tired of the argument that intent matters more than the act, that it should be enshrined as a rule. Beyond the obvious fault that the potential for abuse dictates clear rules limiting government, it’s impossible to completely legislate a competent determination of the subjective distinction between good and bad intent. The mere potential for an exception where a vile, illegal act can be excused becomes the rule. That is not a sane path. Prosecute the act; acquit the legitimate exceptions.

Don’t worry, though. Our government still cares a little.

“The fact that you are doing something for a legitimate security purpose would be relevant, but there are things that a reasonable observer would deem to be outrageous,” [a senior Justice Department official] said.

Who determines what is a “legitimate security purpose”? Congress? The president? What if the reasoning is classified, as it most certainly would be, an assumption the administration demonstrates¹ repeatedly? Are members of the administration who authorize such measures the reasonable observers who decide? The answers are important, since they speak to the continued development of what is supposed to be an open and free society.

¹ To be fair, the Bush administration is not alone in this inclination, nor is it unique to a party.

Sanity on the Limitation of Parental “Rights”

A few days ago, in the context of the current FLDS story, Timothy Sandefur posted a principled defense of children and their rights against the (religious) claims of their parents. It’s very similar to what I’ve written about circumcision generally, and ritual circumcision specifically. The parents’ religion is not enough to justify the objective harm under civil law, regardless of the sanctity and tradition of the action. Still, Mr. Sandefur’s wonderfully stated words are worth posting here. (Note: I have no idea whether he would apply this to the medically unnecessary circumcision of minors. I suspect he does, but I do not know.)

The starting point of the analysis must be the principle that children have rights valid against parents, including the right not to be raised in an abusive or neglectful environment. The state has the legitimate authority to enforce these rights against parents. The state obviously has the legitimate power to take a child away from parents who beat him, or from a family of homeless alcoholics who neglect him. The fact that parents act abusively or negligently because they believe that God wants them to does not change the analysis. It cannot change the analysis, because it would, of course, create an easy route around laws that validly protect the rights of children: just assert that abuse is part of your religion. Heaven knows that’s been tried many, many times.

We do not allow parents to beat their children, yet that almost always leaves no permanent physical damage, unlike circumcision. Of course the psychological damage of physical abuse is undeniable. But is parental intent really enough, which is what seemingly allows circumcision while prohibiting other abuse? (cf. this post) Since one excuse used in favor of infant circumcision is that the boy won’t remember it, I say no. If a parent punches an infant, the infant will not remember it. But the act itself, separate from other considerations, is antithetical to the child’s individual rights. The motivating intent we assume (or discover) of the parent is irrelevant. As Mr. Sandefur’s statement declares, we shouldn’t excuse abuse just because parents claim God made them do it.

Mr. Sandefur continues:

… —and the state has the legitimate authority to defend that right [not to be imprisoned in an asylum], again, within certain (often vague) boundaries set by a parent’s right to direct the upbringing of a child. The latter right, however, must yield to a child’s objective welfare. In other words, while a parent has broad discretion to direct the education and upbringing of a child, that discretion exists within boundaries which the state may police, and keeping children away from education, medicine, &c., are things which—at least at some level—exceed those boundaries. …

The surgical alteration of a healthy child’s genitals exceeds those boundaries. We already recognize this for female minors. The Female Genital Mutilation Act explicitly denies parents the option to cut their daughters for non-medical reasons. The 14th Amendment, among other Constitutional claims, implicitly requires us to prohibit genital mutilation of male minors.

Perhaps more succinctly, Mr. Sandefur clarifies his point in a follow-up to his original post. Discussing the implications of two court cases, Yoder and Pierce, and the constitutional limits imposed on parents, he writes:

… The fact that some communities claim that God wants them to abuse or neglect children is just not a good reason for allowing them to do so, and the state is and ought to be more concerned with ensuring that children’s rights are protected than with whatever excuses parents give—mystical or otherwise—for violating those rights or for neglecting those children. …

I can make no comment on the validity of his legal analysis; I am not an attorney. But his reasoning is logical and based in individual liberty. The family is not society’s building block, with parents acting as property holders of their (male) children until the children reach the age of majority. What’s in the best interest of the family is collectivist, anti-liberty nonsense. Cutting is objective harm. The absence of medical need demonstrates that there is no corresponding objective benefit to be gained that would permit a discussion of parental proxy after applying the child’s individual rights. So, while I certainly adhere to a libertarian deference to parents and a suspicion of extraneous laws, legislatively prohibiting medically unnecessary genital surgery on minors is well within a libertarian framework of appropriate and necessary state use of power.

It would be nice if we didn’t have to do this. Maybe we can even justify not having a specific law prior to the beginning of child circumcision, if we lived in an alternate world without the historical tradition preceding the United States. (Assault laws would still be applicable, I think.) But approximately 3,000 male minors have their healthy genitals surgically altered every day in America. Rights are being violated. Not only may the state intervene, the state must intervene.

Caveat: I am not claiming that religious circumcision of minors proves the religion is harmful. I am claiming that religious circumcision of minors is a blind spot against individual rights that can’t be overcome through claims of parental “rights”. This must be prohibited in civil law. Civil law applied to the individual must trump any and all concerns of religion, particularly since the to-be-circumcised individual retains his own freedom of – and from – religion. He alone must decide if he wishes to express his faith in this manner.

The U.S. owes the world. The world owes nothing to individuals.

Here’s an interview (part 2 of 3) with Stephen Lewis¹, a former diplomat now involved in HIV/AIDS issues. Here are a few curious excerpts (italics added):

What do you think should be done [to fix PEPFAR]?

People should demand more – much more. No one denies that when you pump several billion dollars into a response it will mean something. Of course it will; millions of people will be treated. That’s terribly important.

But that’s what we deserve to expect from the United States. You don’t kneel down before a country because it’s doing… something that the world has a right to receive. The American administration is so discredited, George Bush is such a lamentable president, that when anything of a positive kind happens people are prostrate at the unlikelihood of it and they shouldn’t be.

It gets worse from there, but it’s most important to focus on the key assumption. The world has a right to receive American funding for its problems. I’d like to know the socialist theory Lewis is using to arrive at the conclusion. Presumably we’re only allowed to call our giving “charity” if we need to feed our American egos. The world will acquiesce with that concession, but the dollars must continue to roll in to satisfy the world’s right to receive.

I don’t have anything else nice to say about that, so I’ll move on to the next interesting bit. (Again, italics added.)

How about the response of the United Nations to HIV/Aids in Africa?

There is just so much more to be done. Frankly, one of the things that is inadequate is the United Nations agencies. Some of it is bewildering.

For example, you get the Minister of Health in South Africa (Dr. Manto Tshababala-Msimang [sic]) attacking and dismissing circumcision as a preventive technology. Here you have three determinative studies, definitive studies, we have UNAIDS and WHO encouraging male circumcision as a way of reducing transmission and you get an attack on it by the minister of health in South Africa. Where is the United Nations’ voice? Why haven’t they taken on the minister? Why haven’t they said what should be said, which is that she’s effectively dooming people to death and it need not be done? You have to have a much stronger voice of advocacy from the United Nations in dealing with disease and related matters.

Dr. Manto Tshabalala-Msimang is nuts is HIV, yes, but Lewis’ rant against the United Nations is bizarre. Whether it’s pushing circumcision through UNAIDS with breathless calls-to-action, issuing press releases touting the latest hype on the original story from WHO, or endorsing gender-based human rights violations through its remaining organizational reach, I’m not sure it’s possible to do more for the organization to insert its reach any further into this debate on the wrong side of human rights. But that’s defensible. Instead, let’s complain that they never criticized Dr. Tshabalala-Msimang for being stupid and dangerous.

Except, they did.

The United Nations special envoy for Aids in Africa has closed a major conference on the disease with a sharp critique of South Africa’s government.

Speaking at the end of the week-long gathering in Toronto, Canada, Stephen Lewis said South Africa promoted a “lunatic fringe” attitude to HIV/Aids.

Mr Lewis described the government as “obtuse, dilatory and negligent about rolling out treatment”.

Hey, wait a minute. Stephen Lewis? Stephen Lewis, working as special envoy for AIDS in Africa, attacked Dr. Tshabalala-Msimang’s comments in August 2006. Denouncing idiotic statements is necessary, but move on. Leave the grudge match to the WWE. Instead, every microphone is dead horse meets Stephen Lewis’ stick.

I did thoroughly enjoy this, in an “I’m disgusted” way:

“It really is distressing when the coercive apparatus of the state is brought against the most principled members of society,” he said.

Clearly Lewis is exhibiting a textbook case of Kip’s Law. I would challenge Lewis’ assertion that he is principled, since the UN’s Declaration of the Rights of the Child clearly forbids medically unnecessary genital cutting, without exceptions for gender or potential disease prevention. Nor am I particularly moved by his claim of oppression. Are infants subjected a coercive apparatus when they are circumcised, in part based on the rantings of individuals like Stephen Lewis?

¹ The following biography accompanies the article:

Formerly the special envoy for HIV/Aids in Africa for United Nations Secretary-General Kofi Annan, [Stephen Lewis] is now chairman of the board of the Canada-based Stephen Lewis Foundation, which endeavors to ease the pain of HIV/Aids in Africa by funding grassroots projects. Lewis is also co-director of Aids-Free World, a new international Aids advocacy organization based in the United States.

This will be important later in the entry.