Author: dean

How Should State Constitutions Be Amended?

I am currently reading a book called “The Creation of the American Republic, 1776-1787”, by Gordon S. Wood, and it has stimulated my thinking about Constitutional issues. My purpose here isn’t to provide the reader with a book review, but to discuss what I now believe is the proper amendment process for a state constitution.

What I am saying here is only applicable to a state constitution, or to the constitution of a non-American republic that doesn’t have a federal-state system of government like the United States. The reason it isn’t necessarily applicable to the U.S. Constitution is because that document represents a sort of balance between the need for a national government on certain issues and the sovereignty of states. (I am not saying that I am necessarily opposed to one consolidated national government, without state governments, for the country currently called the United States. Whether our current Federal system is ideal is an issue for another day. It is certainly better than any other government now in existence.)

Before I discuss this proposed constitutional amendment process, I want to discuss the concept of a constitution. First, it must be kept in mind that the institution of government is man-made. This seems obvious, so why state it? I believe it is easy to adopt a subconscious mind-set that sees government as a natural feature of the world, that has an existence apart from the society that has created it. For instance, the British system of government is a product of hundreds of years of tradition, which doesn’t have a written constitution. I think it would be easy for people to forget that this institution is a creation of men, and can be changed or destroyed by men. Just as “society” is nothing more than a number of individual human beings, government is nothing more than an institution created and sustained by a number of individual men. Since government doesn’t exist apart from the men who create and maintain it, then why does it exist at all? All man-made creations should serve some purpose, and, ultimately, further human life. For instance, the automobile is a man-made thing that serves the purpose of transportation, which ultimately makes human lives more easy and convenient. Government is also a man-made thing, and should therefore serve certain functions.

What is the purpose of government? What function does it serve? Ultimately, government serves man’s life. More immediately, human beings must take certain actions in order to live. At the most basic level, they must produce food to eat, shelter to protect them from the elements, and all of the tools that allow them to acquire these things. Other human beings have the capacity to prevent men from taking the actions necessary to live by means of physical force. For instance, a robber uses a weapon to take what others have created to further their own lives. Therefore, in order to live, men must be free from other’s use of physical force in a manner that deprives them of the values they have created for their continued survival. It must be recognized that men are entitled to take actions necessary for maintaining their lives in a social context. People who use physical force to deprive others of the material values they have created are called criminals. Criminals must be restrained by means of physical force. For instance, a robber is put in a jail to prevent him from committing more crimes. (The length of time that a criminal should spend in jail depends on a calculation that takes into account, at a bare minimum, the level of threat that he represents to the lives of other people versus the possibility of him changing his ways -all human beings with normal functioning brains have the capacity to change.)

Each of us could individually take action to restrain criminals, but this would be inconvenient, since most of us do not want to spend our time apprehending thieves, rapists, and murderers. Government is a delegation by the population of the means of restraining criminals. (I also believe that there are other reasons why the restraint of criminals must be delegated to a central authority, and that anarchy is not compatible with a free society. In general terms, anarchy is not compatible with ensuring that a crime has been committed, and with establishing to other’s satisfaction that your use of physical force, and the amount of force used by you, to stop a criminal is justified. I believe this is what is meant by “due process”.) To sum up, an essential function of government is to ensure that the people who want to take action to further their own lives are free to do so.

Another feature of government that must be kept in mind to understand the concept of a constitution is this: government is a product of human association and collaboration. Since government involves a group of people, and since people must bring it into existence, there must be communication, collaboration, and agreement amongst those people about how the functions that government serves will be carried out. An implicit assumption contained in the need for collaboration and agreement amongst the people about the details of how government will operate is the fact that there is often more than one way to perform many government functions. Each state of the United States carries out the legitimate functions of government slightly differently. None of these arrangements are necessarily “right or wrong” in a universal sense. For instance, in the State of Texas, the final state court of appeal is divided into two separate courts. One court handles criminal appeals, and the other handles civil appeals. In other states, and in the Federal system of the United States, the final court of appeal is a single court that handles both criminal and civil appeals. Other issues that could come up include: Should the legislature be unicameral or bicameral? Should all criminal prosecutions be by means of indictment of a grand jury only, or should misdemeanor prosecutions be allowed to proceed by “information” (a charge leveled at the discretion of the District Attorney)? Which is better? (I do not know, and reasonable minds could easily disagree on such details.) Many of these details regarding how a particular government will operate will depend on the particular circumstances and context of any particular society, and the needs of a particular society may change over time. Since so many details depend on context, the people in a society must discuss what their particular needs are, and come to an agreement. Compromises may also need to be made regarding certain features of a particular government. A constitution is the most fundamental agreement amongst the people of a society about how governmental functions will be carried out in a particular society.

So, how should this fundamental agreement amongst the people about how governmental functions will be carried out be reached? Since American states already have constitutions, I will start with the assumption that there is a pre-existing institution that performs governmental functions, and propose a process for amending state constitutions that I think would better reflect the need for broad-based societal agreement over how governmental functions should be carried out in practice.

Every two or three election cycles, a question is placed on the ballot used for electing representatives to the legislature. The question would be something like: “A constitutional convention shall be called.” The voters will either check “yes” or “no”. If three quarters of all registered voters check “yes”, then a constitutional convention (a “Convention”) shall be called within a certain period of time (within about 6 months). The reason three quarters of all registered voters must vote in favor of a Convention is because a constitution is the fundamental political agreement amongst the people, so before it can be changed, there must be broad support amongst the people in favor of change. This ensures broad-based societal agreement about the basic structure of government. It is also not enough to call a Convention based on a mere three quarters of the people who happen to vote in that particular election because, in some elections, voter turnout can be low, and it would be too easy for particular interest groups to get their own supporters out to vote in favor of calling a Convention even though the majority of the population is not in favor of a change.

If three quarters of the registered voters are in favor of a convention, then there is a special election to elect Convention Delegates. Delegates for the Convention should be chosen in a manner that ensures that they are representative of the people. Probably, they should be chosen in accordance with existing voting districts for the lower house. (The “lower house” is the legislative chamber that is usually seen as being the most “representative” of the people, and usually bases representation of each district on population levels. In the Federal system of the United States, it is the House of Representatives.) Existing voting districts for the lower house are used for purposes of efficiency, since these districts would be readily known to everyone. (However, I also think that it would also be appropriate, and possibly advantageous, to create special voting districts for the sole purpose of electing Delegates to the Convention.) What is important to keep in mind is that each voting district for the Convention gets a number of Delegates in proportion to the population of registered voters in that area. So under my plan, each voting district for Convention Delegates gets the same number of Delegates as they received in the most recent legislative session for the lower house. This is done because the lower house usually bases the number of representatives each district gets on population, which means that the areas with greater populations will get to send more Delegates to the Convention. Linking the number of Delegates at the Convention to population is based on the fact that a constitution is a fundamental political agreement amongst the people, which means it must reflect the will of the population. The membership criteria for Delegates to the Convention under my plan would be the same as the criteria for membership in the lower house of the legislature. This is because the lower house of the legislature usually has the lowest criteria in terms of age, residency, and (in the past) property ownership.

Individual Delegates to the Convention are chosen for each voting district by means of election. The exact election process could be done in different ways, but I would prefer a non-partisan election, in which the highest vote-getters get to be Delegates, without any sort of primary. For instance, if a particular district gets three Delegates, then the top three vote-getters get to be delegates.

At the Convention, constitutional amendments are proposed by individual Delegates, and then voted on by all of them. If a proposed constitutional amendment gets 51% of the votes of the Delegates at the Convention, then it will be sent to the people for a ratification vote. I am uncertain at this point of the details of how a Constitutional Convention would be run, other than the requirement that a proposed amendment get 51% of the Delegates’ votes, but I think it could be left up to the Delegates to set their own rules of procedure for how amendments would be proposed to the Convention, and debated on. One other necessary rule regarding the Convention: it must last for only a set period of time. This is to ensure that it doesn’t become a permanent body. Any amendments proposed by it after this set time period are considered null and have no legal validity.

As I already noted, all proposed amendments of the Convention will be sent to the people for a ratification vote. If three quarters of the registered voters vote to ratify an amendment, then it becomes a part of the constitution. Just as when the Convention was called, requiring three quarters of registered voters to ratify an amendment ensures that it does represent an agreement of the people.

I would now like to compare this proposed Constitutional Amendment process with the current amendment process of the State of Texas, in which the state legislature plays a role. This will illustrate what I think is wrong with an existing legislature having a role in the amendment process of a constitution. It would appear that the Texas State Constitution (as of 2009) allows for the lower house of the Texas legislature to propose constitutional amendments on a 2/3 majority vote. It also appears from the text of the state constitution that a mere majority of the actual votes cast by the population will ratify the proposed amendment and make it part of the Texas State Constitution. This process has two major flaws. First, allowing the Texas State legislature to act as a Constitutional Convention is problematic. Since a legislature is a part, or aspect, of government, it has no greater right to exist than the government itself does. Since government is a delegation by the people of the right to the use of physical force to restrain criminals, it seems fundamentally contradictory for the members of the legislature, who have been delegated that power, to play a role in the process of the delegation of that very power. In order for a legislature to be an actual representative body, as opposed to a sort of aristocratic body, there must be some more fundamental, and prior, agreement amongst the people represented about the basic terms under which the legislature is to exist, such as: how and when the legislators are elected, for how long they meet, how long they are to serve, on what matters they may legislate, etc. Logically, these issues must be decided by the people prior to the establishment of a legislature. It is possible to combine a legislature and a constitutional convention in one body of people, but this would be a bad idea. The legislators would tend to create a constitution that favored the legislature as an institution, whereas a body of people whose sole purpose is to create the constitution would have to live under that constitution, so they would create a document that is more representative of the people’s will.

Convening a special body just for the purpose of creating or amending a constitution will also ensure that the best and the brightest Delegates will be elected to the Convention. Once a Constitution is established, any particular legislative body can have less intelligent and competent people in it because the Constitution will have institutional safeguards in place against legislative tyranny, such as the courts to strike down unconstitutional laws. Also, while the best and the brightest might be willing to serve, for a short period, in the creation of a Constitution, they may not desire a career in politics, so the legislature may normally be composed of people of lesser abilities. It is okay for any particular legislature to be filled with incompetents, because its powers are already defined by a constitution, so the damage they can do is not as great. A constitutional convention filled with incompetents would be a disaster, because they are setting the broad terms by which all future legislatures, executives, and judges are to govern. In essence, a special Convention that meets for that sole purpose, and then is dissolved provides an extra institutional safeguard against any sort of legislative tyranny, and insures that the most competent people are involved in the constitutional drafting/amending process.

The second major flaw I see with the current amendment process for the Texas state constitution is that it appears to only require a simple majority of the people that actually vote regarding the proposed amendment to ratify it. This means that a very small segment of the population can ratify constitutional amendments, and would tend to encourage small interest groups to write constitutional law. There is no assurance that the particular constitutional amendment that is ratified represents the agreement and consent of “the people”, just special interest groups.

A perusal of the Texas State Constitution reveals that much of it reads more like a set of statutes than a constitution. The important, fundamental, portions of it, are drowning in a sea of trivial provisions. By separating out the constitutional amendment process from the legislative process, and by requiring a super-majority of the voters to ratify, I believe a better constitution can be maintained, and that it will truly represent a fundamental agreement of the people, rather than a legalistic collage of special interest groups.

Woman Ordered to Pay $80,000 per Song: Time To Reform Copyright Law

A woman has been found liable for copyright infringement by a Federal court in Minnesota, and ordered to pay $80,000 per song that she was found to have illegally shared on the Internet. In total, she must pay the record industry $1.92 million dollars. The reason she must pay $80,000 per song is because Federal law currently has a “statutory damages” provision that allows copyright holders to be awarded a set amount of money, regardless of the actual damages that they suffered. This is why the woman is being ordered to pay $80,000 per song when she could have purchased the songs for a few dollars, or less. I think this case illustrates the need for Congress to do away with statutory damages awards in Copyright law.

The law must be proportional to the wrong committed. We do not execute a shop-lifter because the wrong that he has committed is not great enough to merit that level of restraint. (“Probation” is sufficient to allow the state to monitor him for a period of time, and ensure that he doesn’t get into more trouble.) The risk that the shop-lifter poses to the rights of others is minimal, and the chance that he will reform his behavior is great. (It should be noted that if this woman had stolen these songs out of the store, she would get less of a punishment than she is receiving in civil court by being ordered to pay $1.92 million dollars.) Furthermore, the purpose of the civil court system is to make the victim whole with money compensation -to provide reparations- not to punish the wrongdoer. This means that the record companies are entitled to an award of their actual damages in the case (plus attorney’s fees) -not an arbitrarily high amount of money that serves no purpose other than to arbitrarily aggrandize the record companies’ wallets and frighten people that may be wrongly accused of file-sharing into settling for fear that they may get a $1.92 million dollar judgment against them.

John Grisham’s “The Rainmaker”

I recently watched the movie version of John Grisham’s “The Rainmaker”, and I liked the move so much, that I went to Half Price Books and purchased the novel that day. I thought that it presented the trials and tribulations of being a recent law school graduate, trying to make it as a solo-practicing lawyer quite well. I could relate to the fears that the main character Rudy Baylor must overcome as a newly practicing attorney. Going to court is pretty intimidating at first, especially when you are all by yourself, and don’t have the support of a firm with more experienced attorneys to bail you out if you get in over your head. I could also relate to the financial difficulties of the main character, when you don’t necessarily know when and where your next fee is going to come from, and you’ve got bills to pay. As a result, I read this book in 3 days, and enjoyed it immensely.

Although I generally could relate to Rudy Baylor, a couple of things that he did really bothered me. First of all, at the beginning of the novel, a lot of his behavior seems to be motivated by either greed or envy, especially the later. He seemed to hold a lot of resentment towards a lot of different people, and he acted on this resentment from time to time, such as when he destroyed property at a law office because they wouldn’t hire him.

The other thing that really bothered me were his improper ex parte communications with the trial judge throughout the novel. Before I explain what an ex parte communication is, let me explain the basic outline of the plot. The major conflict in the novel is a lawsuit Rudy Baylor files against a very corrupt insurance company, who has denied the claim of his client, who is dying of leukemia. The insurance company has wrongfully denied his client’s claim, and now they file suit, although it is now too late for the client to get the bone marrow transplant that would have saved his life. An ex parte communication is a generally prohibited communication between a party and/or their attorney or representative and the judge when the opposing party, their attorney and/or their representative is not participating in the communication regarding some substantive issue regarding the case before the judge. I am always careful not to engage in ex parte communications with a trial judge because it would get me in trouble, but I also agree that it is, ethically, totally improper, and I think that it can rightfully be prohibited. Our System is an adversarial system, where both parties argue their sides of the case, and then an impartial third party (the judge and/or jury) decides who is right and who is wrong. This system best ensures that the truth will prevail because each side has an incentive to makes its best argument to the judge or jury. Justice should be “blind” in the sense that the winner of a trial should not be based on personal contacts or friendships between a party’s lawyer and the judge, because we are a “nation of laws, not of men”. Ex parte communication would corrupt this adversarial system by allowing you to argue your side of the case without the judge hearing from the other side on the matter, which would thwart a just outcome.

Despite the fact that ex parte communication with the trial judge is improper, the main character, Rudy Baylor, does it over and over again throughout the novel. For instance, in Chapter 26, Rudy Baylor goes to Judge Tyrone Kipler’s office and explains to him why the case should be “fast tracked”, and the insurance company’s lawyer(s) are not there. In Chapter 34, Rudy Baylor, Judge Kipler and the insurance company’s lawyer are having a phone conference over a discovery dispute during a deposition, and the judge orders the insurance company lawyer off the phone, so that he can talk to Rudy Baylor alone. The judge is also hardly what I’d call impartial, since he clearly wants Rudy Baylor to win, and does everything he can to make this happen in the novel, although I agree that, given the set of facts in the novel, Rudy Baylor probably should win.

I agree that, morally, the executives at the fictional insurance company (“Great Benefit”) did something wrong for the simple fact that they had a policy of denying all insurance claims without regard of their merit under the insurance contract. At some point in the novel, it is revealed that the insurance company instructed its employees in their procedures manual to initially deny all claims. I think that this would be fraud. Generally, if you enter into a contract with someone with the present intention of never performing under the contract, then I believe it is considered fraud. While it is not fraud to default on the contract at some later time, so long as you intended to perform at the time you entered into the contract, if you intend to default on the contract at the time you entered into it, then that is fraud. Regardless of the present state of law, I think that it should be fraud, because you are, in essence, taking values from someone, without ever intending to reciprocate. In essence, you are conning them out of values that they wouldn’t part with, if they knew that you didn’t plan to live up to your end of the agreement. Great Benefit was incurring a debt, or obligation, when it accepted people’s insurance premiums. By deciding it was going to initially deny all claims, its managers had a present intention not to pay out under the insurance contract. I think that any corporate executive who instructed the corporation’s employees to deny all claims, regardless of the fact that some of the claims were legitimately covered under the policy, would be guilty of the criminal act of fraud, and could be jailed and/or fined.

Furthermore, if someone did die in the scenario outlined in Grisham’s book, then I think the insurance company executives responsible for the fraudulent scheme to initially deny all claims, despite some of them being meritorious, might be guilty of manslaughter, because they engaged in a reckless act (denying claims regardless of the fact that they were supposed to be covered under the insurance contract), which resulted in the death of an insured person.

I would also note that I do not consider the scenario outlined in the book to be very likely to happen under pure capitalism. I note this fact because I think that Grisham’s probable agenda in writing “The Rainmaker” is to push for Canadian-style socialized medicine. I had never read a “legal thriller” before I read “The Rainmaker” last week. (I have always preferred science fiction novels.) But, I have seen several of the movie versions of Grisham’s novels, and they always have a socialist political-viewpoint. So, I suspect that the message of “The Rainmaker” was: “Private insurance companies are evil because capitalism is evil, so we need socialized medicine, similar to the Canadian version.” However, Grisham is mistaken if he thinks the current American health care system is a free market.

The American medical system is not a free market for several reasons, some of which I will now note. First, Medicare and Medicade drive up prices by providing free medical care to people, who then have no incentive to economize on their use of health care. Second, there probably is no industry more regulated than the health care industry. Patients aren’t free to choose who will provide them with health care thanks to medical licensure statutes. This means they must go to a government-approved doctor. Licensure statutes artificially limit supply by arbitrarily limiting the number of medical practitioners, thereby driving up prices. Patients aren’t free to choose which drugs they will consume, since they must get permission from a government-approved doctor before they can purchase so-called “prescription drugs” from a government-approved pharmacist. Once again, licensure statutes for pharmacists artificially limit supply and drive up prices. When it comes to drugs and medical devices, the government won’t allow innovators to market new drugs and medical products without government approval from the Food and Drug Administration, which can take years. Furthermore, taxes are structured to favor third-party payment of health care, because the government favors employer-provided health insurance by giving companies a tax break for providing it, but if employees want to get their own health insurance, they don’t get the same tax break. This also tends to make people dependent on their employer for continued health-coverage. Additionally, although I think this is less of a problem now, thanks to tort reform, doctor’s malpractice insurance expenses were outrageously high because of arbitrarily high punitive damages awards.

I tend to think that punitive damages awards should be capped. (In a civil suit, “punitive damages” are not the damages a plaintiff receives to repair the damage done to him by the defendant, they are an extra money award given to the plaintiff, just to punish the defendant’s wrongful conduct.) In the book, the fictional insurance company is hit with a massive punitive damages award, but I’m not sure that this is the best way to deal with the problem. I think that the management responsible for the fraudulent scheme in the novel would need to have been removed. The stockholders are probably not responsible at all, yet, they are the ones being punished with a high civil punitive damages award. I think it would make more sense to allow the criminal justice system to handle punishment, rather than the civil courts. As I said earlier, the corporate executives in the novel would probably be guilty of fraud and manslaughter for instituting a policy of denying all claims, which resulted in death.

I also find it doubtful that someone would actually not be able to receive treatment for leukemia under capitalism, even if they had no health insurance, and the treatment cost $200,000, which is how much the bone marrow transplant that the fictional insurance company refuses to pay for in the novel costs. First, I would note that I am uncertain what the cost of $200,000 reflects. Is the $200,000 cost mostly just to cover the “R&D costs” (“Research and Development”) of the procedure, or the actual costs of labor and materials? If the $200,000 cost is mostly to cover the costs of the R&D that went into developing the intellectual property for the procedure, then it would be possible under capitalism for the owners of the intellectual property to give a massive discount to those who actually couldn’t afford the procedure due to poverty. For instance, if $150,000 of the cost of the procedure is to help cover the per-unit costs of the R&D that went into developing the patents and other intellectual property, while only $50,000 represents the cost of labor and materials, then the manufacturer could give a discount to this particular patient, after doing an audit of his personal finances to confirm that he is in fact poor. Even if they could only charge this particular patient, say, $60,000, they would still be making $10,000 on the sale, which is $10,000 they otherwise wouldn’t have gotten. As long as they can perform a financial audit of the patient to determine that he isn’t lying about being poor, then the medical provider can charge rich people more, and poor people less, for the same procedure, and this would likely be the most profitable business plan they could adopt. For instance, with most pharmaceuticals, the manufacturing costs for the drug are extremely low. The reason they cost so much is to cover the expenses of R&D that went into the drug. This means that drug manufacturers could reduce the sales price for those who are genuinely poor, and charge rich people more, without much difficulty, and they would have an incentive to do so, because even if they make a lower profit on the drug for that particular customer, it is still a profit.

Even assuming that the $200,000 cost of a bone marrow transplant is mostly to cover the cost of labor and materials, rather than the cost of research and development, I think that the chances of a poor person getting a loan to cover the costs would be very good under capitalism. According to the novel, the chances of long-term success for the bone marrow transplant were around 90%. The character with leukemia is in his early 20’s, which means that, but for his leukemia, he would probably live to be about 75. So, his chances are 90% that he will live for another 50 years. This is a pretty good bet for an investor. Assume that he works for 50 years and that he can make about $30,000 per year on average, which is about $15 per hour, working 40 hours per week, 50 weeks out of the year. (This is an extremely low-ball figure in my opinion.) This means he would make $1,500,000 over 50 years. Assume he can live off of $15,000 per year ($11,000 is the approximate US poverty line). Then, he can pay $15,000 towards the $200,000 loan every year. Say that $10,000 of the $15,000 he pays every year is interest. This means the loan would be paid off in less than 40 years. The average yearly interest rate the creditor would get would be about 5% under this payment plan. (Actually, it would be a higher interest rate, since he is paying $5,000 towards principle every year, which means principle is being reduced every year, but I can’t remember how to figure the actual average interest rate over 40 years).

Five percent APR is about what you would pay towards a mortgage on a house. Certainly if someone is willing to give you a loan at 5% for a house, they would be willing to give you a loan at 5% for an operation to save your life, especially if the bankruptcy laws said that such a loan is non-dischargeable and they are allowed to garnish your wages and seize all assets if you default on the loan.

This all assumes that there are no private charities that would help a poor person with leukemia (doubtful), and that nobody else, such as his parents, friends, or family members, would be willing to sign a contract making themselves legally responsible for paying part of the loan, which is also a doubtful premise -I would certainly be willing to pay a portion of a friend or immediate family member’s loan for an operation to save their life.

This also assumes that it would, in fact, cost $200,000 under pure capitalism for a bone marrow transplant. I would note that capitalism creates the social conditions of freedom necessary for technological innovation, and reductions in the costs of products. For instance, fetal stem cell research creates the promise that we will soon be able to grow cloned organs and tissues in the lab, which will be a perfect match to your own body’s genetic code, thereby eliminating the risk of tissue rejection. But, every time medical innovators, who are the true “rainmakers”, get hit with massive punitive damages awards in court, or a new regulation by the government, technological innovation tends to dry up.

Alexis de Tocqueville’s “Democracy in America”

Any course on American political history and philosophy is likely to require you to read portions of Alexis de Tocqueville’s Democracy in America. I recently endeavored to sit down and read Volume 2 of this work, and quickly discovered why they only require you to read portions of it in most classes. It is long, and often discusses issues that are only of slight importance today (if they ever were important.) For instance, Book I, Chapter XVIII is called “Why American Writers and Orators Often Use an Inflated Style”. This chapter claims that American writers are “pompous” in their writing style, and attempts to explain that this (dubious) observation can be explained by reference to the nature of “democratic communities”. This Chapter illustrates one of the chief flaws with this book, namely, that de Tocqueville tends to make sweeping generalizations, but provides little evidence to back up many of the generalizations. (Hopefully, what I write will not prove him right about American writers.)

I am not the only one to have noticed this flaw in DIA (“Democracy In America”), because the edition that I have contains a historical essay regarding the work, written by Phillips Bradley of Queens College, Flushing, New York, in 1944. In that essay, he quotes John Stewart Mill as having said: “It is perhaps the greatest secret of M. de Tocqueville’s book, that, from the scarcity of examples, his propositions even when derived from observation, have the air of being mere abstract speculations.” (Democracy in America, Appendix II, Pg. 421, Copyright Alfred A. Knopf, 1945, Vintage Books, Phillips Bradley of Queens College, Flushing New York in 1944, quoting John Stuart Mill, “M. de Tocqueville on Democracy in America,” Edinburgh Review (1840)).

I have only read the first 2 books, and the first quarter of the third book, of Volume 2. After I skimmed over the rest of Book 3 and Book 4, I decided that they were not of sufficient value to read at the present. Since I wanted to write on the importance of what I had read, without wasting my time with what I consider to be unimportant portions, I decided to inform the reader of this review of that fact. Now that I am again looking at the last Book –Book IV, “Influence of Democratic Ideas and Feelings on Political Society”- I must say that its chapter headings look more interesting than Book III’s, but I will review that book separately, if I later decide to read it.

With all of that said, this is basically a European’s view of American political and social attitudes as they existed in the 19th Century. The author’s general theme seems to be something like this: What is American Democracy, what are its political-philosophical origins, and how is it different from European politics and society? De Tocqueville confirmed that he wanted to explore the implicit American philosophy early on. In Chapter I of Book I, he says:

“I think that in no country in the civilized world is less attention paid to philosophy than in the United States…Yet it is easy to perceive that almost all the inhabitants of the United States use their minds in the same manner, and direct them according to the same rules; that is to say, without ever having taken the trouble to define the rules, they have a philosophical method common to the whole people.” (DIA, First Book, “Influence of Democracy on the Action of Intellect in the United States”, Chapter I, “Philosophical Method of the Americans”.)

What is this “philosophical method common to the whole people” of America? It is to:

“…evade the bondage of system and habit, of family maxims, class opinions, and, in some degree, of national prejudices; to accept tradition only as a means of information, and existing facts only as a lesson to be used in doing otherwise and doing better; to seek the reason of things for oneself, and in oneself alone; to tend to results without being bound to means, and to strike through the form to the substance –such are the principal characteristics of what I shall call the philosophical method of the Americans.”(DIA, First Book, “Influence of Democracy on the Action of Intellect in the United States”, Chapter I, “Philosophical Method of the Americans”.)

To me, this is a definition of “individualism”: look to the facts of reality and use your own mind to reason from, and in reference to, those facts; and use your own mind to improve your circumstances in life because your life is important to you. In other words, the essence of America for de Tocqueville is that it is a nation of individualists. (I agree completely.) But, de Tocqueville doesn’t seem comfortable with the notion of individualism: “Selfishness originates in blind instinct; individualism proceeds from erroneous judgment more than from depraved feelings; it originates as much in deficiencies of mind as in perversity of heart.”(DIA, Second Book, “Influence of Democracy on the Feelings of the Americans”, Chapter II, “Of Individualism in Democratic Countries”.) I regarded this analysis of American individualist philosophy, and what it means in practice, to be one of the most valuable aspects of the First and Second Books of the Second Volume of DIA. These portions of his work demonstrate that contemporary negative connotations associated with the concepts of “egoism” and “individualism” pre-date the 20th Century.

Although he doesn’t seem to like it, de Tocqueville believes that America is a nation infused with the idea of rational egoism:

“The doctrine of interest rightly understood is not new then, but among the Americans of our time it finds universal acceptance; it has become popular there; you may trace it at the bottom of all their actions, you will remark it in all they say.”(DIA, Second Book, “Influence of Democracy on the Feelings of the Americans”, Chapter VIII “How the Americans Combat Individualism by the Principle of Self-Interest Rightly Understood”.)

These observations on American individualism and rational egoism by de Tocqueville illustrates that political scientists and philosophers of the 19th Century were wrestling with the issue of what should be the relationship of the individual vis-à-vis society? Does society exist because it is in the interests of the individuals that comprise it (individualism), or do individuals exist to serve society (collectivism)? De Tocqueville seemed uncomfortable with American individualism for religious reasons: “I do not believe that self-interest is the sole motive of religious men…”(DIA, Second Book, “Influence of Democracy on the Feelings of the Americans”, Chapter IX “That the Americans Apply the Principle of Self-Interest Rightly Understood to Religious Matters”). He also seemed to assert at times that religion was necessary to maintain the social order, which I believe is a common belief today: “…I find that dogmatic belief is not less indispensible to him in order to live alone than it is to enable him to co-operate with his fellows.”( DIA, First Book, “Influence of Democracy on the Action of Intellect in the United States”, Chapter II, “Of the Principal Source of Belief Among Democratic Nations”.)

The issue of religion raises another major criticism I have of de Tocqueville’s work. His discomfort with the secular trend of his era clearly comes through in the book: “The chief concern of religion is to purify, to regulate, and to restrain the excessive taste for well-being that men feel in periods of equality…”( DIA, First Book, “Influence of Democracy on the Action of Intellect in the United States”, Chapter V, “How Religion in the United States Avails Itself of Democratic Tendencies”.) De Tocqueville clearly has an agenda in Democracy in America, which is to protect religion in a post-Enlightenment era. But, de Tocquevill recognizes that American religion has been secularized:

“Not only do the Americans follow their religion from interest, but they often place in this world the interest that makes them follow it. In the Middle Ages the clergy spoke of nothing but a future state; they hardly cared to prove that a sincere Christian may be a happy man here below. But the American preachers are constantly referring to the earth, and it is only with great difficulty that they can divert their attention from it. To touch their congregations, they always show them how favorable religious opinions are to freedom and public tranquility; and it is often difficult to ascertain from their discourses whether the principal object of religion is to procure eternal felicity in the other world or prosperity in this.”(DIA, Second Book, “Influence of Democracy on the Feelings of the Americans”, Chapter IX “That the Americans Apply the Principle of Self-Interest Rightly Understood to Religious Matters”.)

De Tocquville’s commentary regarding American religion confirms for me what I had heard 20th Century atheists, especially Ayn Rand, say, but had never found confirmation of, from a theist. Namely, that American religion is not like the religion of the Middle Ages. It is a secularized version, that is more concerned with worldly welfare than with any sort of rewards or punishments in an afterlife. The fact that de Tocqueville, a French Aristocrat and devout Catholic, would say this provides strong evidence for the proposition that American religion is a largely secularized institution. I consider this “independent” confirmation to be a major value of Democracy in America.

Democracy in America, despite its flaws, is important because it captured the essence of America (individualism) at a particular moment in time (the 19th Century), and preserved that snapshot for future generations of America to learn about, no matter how far they may have strayed from that essence today.

The Incest Taboo

I am just finishing up the 30th Anniversary edition of Richard Dawkin’s “The Selfish Gene”. (I believe that I have already finished the original edition, but the 30th ed. has two extra chapters.) Taken purely as a text on evolutionary biology (and nothing more philosophical than that), it is an excellent work. I will probably have more to say about it in a formal book review once I finish it, but I wanted to note one fact that I discovered that I found very interesting. If correct, I think it gives a definitive and rational answer to the question: why not have sex with your relatives?

In chapter 6, titled “Genesmanship”, it discusses, on page 99, and in an endnote on that page, the high probability of brother-sister matings leading to serious genetic diseases for their children. In fact, the footnote says that each person caries, on average about 2 recessive “lethal genes” per person. The gene is “recessive”, which means it doesn’t manifest itself unless you get a copy from both your mother and your father. Normally, because of out-breeding (non-relative breeding), a child will only get one recessive of any given lethal gene, so he will be safe. But, since brothers and sisters have a high probability of getting the same lethal gene from their parents, the chance of a child from a brother-sister breeding getting two copies of the same recessive lethal gene turns out to be about one in eight. That means if you have 8 children, you are likely to have at least one child with a serious genetic problem that will result in early death. (I was vaguely aware of the fact that this was the reason that brother-sister breeding was bad, but I had no idea the probability of death for their children was that high.) To draw an analogy, a brother-sister breeding would be like taking a revolver with 8 chambers, putting a bullet in one of the chambers, and then playing “Russian Roulette” with your kid.

To me, this had to be a major reason for the “incest taboo” in most human cultures. (I say most, because there are examples of brother-sister breeding, such as the Pharaohs in ancient Egypt.) Pre-historic people probably would have “quickly” noticed that brother-sister breeding led to the death of more children than non-brother-sister breeding. (When I say “quickly”, I mean over the course of decades.) (And, yes, I am assuming that people want to have children, but even the minority of people who don’t are going to be raised in a cultural environment that views brother-sister breeding with great revulsion for this reason, and are therefore probably going to view it with revulsion themselves.)

FYI-Dawkins seems to suggest that this fact would lead to an “instinctive” revulsion by people against incest, but I regard human beings as a “tabula rasa” at birth, and I am not sure that this is consistent with the idea of “tabula rasa” at birth, so I think the taboo would have arisen through observation, not due to any sort of “innate knowledge”. (I will probably have more to say on “instincts” and the idea of “tabula rasa” when I write a book review of “The Selfish Gene”.)

Canadian Socialized Medicine Can Kill You

This article suggests that the substandard Canadian medical system, which is more socialized than the American system, may have contributed to the death of a woman, who is apparently an employee of American movie studios. (I’m not sure why this particular skiing accident made national news, while numerous others don’t -surely these reporters believe that all human lives are equally important.) The evidence is piling up: socialized medicine will kill people.

DC Gun Freedom Amendment

According to this article, the Senate has added an amendment to a law to give the people of DC representation in Congress. (Whether the main bill is a good idea, or Constitutional, is another issue that I am uncertain on.) This amendment would make Washington DC one of the easiest places in the nation to own a gun. About the only local DC law that would not be repealed by it is the law prohibiting the carrying of arms outside of one’s home.

The reason I mention this article is because the DC gun freedom amendment got a lot of support from Senate Democrats, as well as Republicans. (“It passed 62 to 36, winning one more vote than the D.C. vote bill…”) Some of my “conservative” and Republican friends have expressed concern that with the Democrats in power, there would be a plethora of new restrictions on the right to keep and carry arms. I was concerned about this too, when I voted straight Democratic ticket, but there were other freedoms that I had to think of in this election, such as religious liberty and a woman’s right to an abortion, so I had to take a chance on Obama. So far my gamble is paying off. Ruth Bader Ginsburg managed to hold on until Obama was elected, which means that when she retires, she will be replaced by a like-minded Justice, maintaining the ideological balance on the court. Furthermore, not only have there been no new restrictions on gun freedom, but there is a debate in Congress on whether to give the people of DC more gun freedom.

Religion or Morality?

I have been asked the following question on a couple of occasions by friends and acquaintances who tend to be less interested in philosophy and ethical ideas than I am. (I don’t necessarily consider less interest than I have in such issues to be a vice. It depends on the context of your own life.) When I discuss my atheism with them, they will ask something along the lines of: “What will keep people moral without religion?” It is difficult to answer this question with a 2-minute response, which is normally about all the time I can hope to get from them on the subject. The difficulty of a short response comes from the fact that the question presupposes some more fundamental questions. One of the more important fundamental questions presupposed by this question is: “What is morality and why do we need it?”

Before I begin, I should preface this explanation with the following: I don’t think that the moral system I am describing here is something I came up with first-hand. Most of my thinking in this area has been highly influenced by the writings of Ayn Rand. I discovered her writings at about age 15, and I have been studying them ever since. Reading her works has convinced me that she was far more intelligent than I am, and I’m a pretty smart guy, so that’s saying a lot. If you like what you read here, then I recommend that you pick up some of her non-fiction works like “The Virtue of Selfishness” and read it. However, you also shouldn’t assume that what I am writing here is consistent with what was expressed in Ayn Rand’s writings. Describing her philosophical system is not my purpose here. My purpose is to explain what I believe to be true. As a result, I have tried to stay away from using a lot of terminology that may only be familiar to someone who studies Rand’s ideas. I have endeavored to “put things in my own words”, or to express them in a way that a broad cross-section of society will hopefully understand.

The question “What will keep people moral without religion?” can mean different things, depending on what is meant by “morality”. The questioner could really mean: “What will keep people obeying god’s word so that they can get into Heaven?” If this is really what the person is asking, then the answer is: “Since god and heaven don’t exist, there is no reason for people to act like they do.”, and that would be the end of the discussion. It should also be noted that many atrocities have been committed by people who hold getting into heaven as a goal, so I doubt that this is a good motive for morality, as that is commonly understood in America. Islamic terrorists, various cults in Western nations, and various Christian sects in pre-modern times, have all shown what destruction religion can unleash. (Modern American mainstream religions are so infused with secularism, that the damage they can do is more limited.)

The questioner could have a more secular goal in mind with the question, which is something like: “What will keep people from behaving in a way that is destructive of the social order?” If this is what is really being asked, then the questioner is basically asking: “Without religion (or at least the illusion of religion) what will keep people from robbing, murdering, raping, and enslaving other human beings?” This is a better question to ask because the questioner does seem to have some secular purpose in mind, and it should therefore not be dismissed as quickly as the more mystical variant of the question discussed above. To answer this version of the question, several facts must be understood. The questioner could believe that society is important for at least two reasons: First, he could believe that “society” is a sort of entity, that is more important than any of the individuals that make it up. Second, he could believe that it is easier for him, as an individual, to live in a social setting than to live alone. This first view of society, and the individual’s relationship to it, is commonly known as collectivism. This view mistakenly holds that society is somehow “more than the sum of its parts”. In reality, society is nothing more than a number of individual human beings. This collectivist view of society also holds that the purpose of the individual is to benefit society, rather than social relations benefiting each individual living in society. Collectivism is incompatible with the needs of anyone who wants to live, which means it is incompatible with human life. History has shown this to be true, since not only were collectivist states like the Soviet Union oppressive, they were also poor compared to nations that allowed individuals to pursue their own self-interest to a greater degree. For this reason, if this is what the questioner means when he asks the question “What will keep people moral without religion?”, then I would note that I reject this brand of “morality”. (Any further discussion of what is wrong with collectivism is beyond the scope of what I am writing about here, so I refer you to numerous writings by Ayn Rand on the subject. Her novel “We the Living”, which is set in Soviet Russia, and shows how those who want to live are destroyed under collectivism, is a good place to start.)

A person who is not, implicitly or explicitly, a collectivist probably means something like this by the question: “Without religion what will keep people from behaving in a way that would destroy society, which is only important because every individual person is actually better off living in (a certain type) of society, rather than living alone?” However, to answer this question, it must first be recognized that there are several implicit assumptions expressed in the question. First, the questioner assumes that his life is important; second, the questioner assumes that social existence, in other words, the individual living in a society, is preferable to living alone; and, third, that people need to act in certain ways, and refrain from acting in other ways, to ensure that their self-interest is maximized. Examining these assumptions will help to answer the question.

Addressing the last of these assumptions first, a person must engage in certain behavior if he wants to maximize his chance of living. Long-range planning tends to maximize one’s chances of survival. Deferring some consumption now for the sake of greater rewards later is an important concept that all adults must learn, in order to live successfully. For instance: If you plant some of the seeds you have, rather than eating all of them now, then they will likely grow into more plants later, and you will have even more seeds to consume in the future. If you study hard in school now, then you will have a better job later. A person must also engage in certain behavior for another, somewhat related, reason, which is that the universe acts in accordance with natural law. In other words, things in reality have a certain nature, or identity, and they act in accordance with that nature, which is the law of causality. Examples of natural law abound: If you heat a piece of wood to a certain temperature, under certain other conditions, it will catch on fire. If you eat certain types of plants they will nourish you. Water extinguishes fire under certain conditions. Plants need light to survive. If human beings want to survive, then they must take certain actions.

The fact that human beings must take certain actions, if they want to live, leads to another fundamental observation about why human beings must engage in certain behavior. The facts demonstrating this include: People, like all living organisms, must eat in order to live. People must protect themselves from the elements, by obtaining clothing and shelter. And, people are not automatically born knowing how to maintain their lives. Furthermore, the human mind has a certain nature (a certain identity). Specifically, a person can only gain knowledge by following a specific process of observing the world around him, and reasoning from those observations. This is what is meant here when man is described as “the rational animal”. Additionally, human beings must engage in a process of thought to gain knowledge about the world around them, because they do not automatically know what is in their best interest. If you observe a child, you will see him make choices that a rational adult would not make. For instance, he will eat too much candy and get a stomach ache because he doesn’t know any better. (You can also observe some adults make bad choices, either through ignorance or due to willful irrationality.) This is because human beings must gain knowledge through a process of thought and understanding, and this includes knowledge of what is in their best interests. It must also be clearly understood that the process of thinking is not automatic, and requires effort. This means that if a person is to survive, he must develop a habit of thinking, and applying that reasoning to the task of survival.

Another implicit assumption in the question about morality and religion is the assumption that the questioner’s life is important to him. If the questioner is saying that morality is necessary to maintain a social order that is beneficial to him, then he is implicitly saying that he wants to live, and that living in society will maximize his survival. The choice to live is a basic choice, which logically presupposes all other moral choices. If one chooses to live, then one must make choices in accordance with the standard of “man’s life”. Since human beings have a certain, specific nature, they must act in accordance with that nature, which is the nature of a living man. All of the actions of a human being desiring to live should be in accordance with the standard of “man’s life”. Living by the standard of “man’s life” means living by the standard of human nature, in other words, by the standard of man, the rational being. It should also be noted that the emotional result of living in accordance with the standard of “man’s life” is normally going to be happiness. (Although it may be possible to fail to achieve this state due to factors beyond one’s control. For instance, being placed in a concentration camp or having a terminal illness may make happiness impossible, despite one’s best efforts, but these unusual circumstances are fairly rare. Living in accordance with the standard of “man’s life” is a necessary, but not a sufficient, condition of achieving happiness.) The capacity for happiness is another aspect of human nature.

A final implicit assumption in the question about morality and religion is the assumption that living in society is preferable to living alone. This observation is true. A person who wants to live and achieve happiness can normally do so more successfully living and dealing with other human beings than he can on his own, like Robinson Crusoe. It would be impossible for any individual to produce all of the material products and goods that he enjoys today on his own. Imagine trying to manufacture completely from scratch one’s own computer, TV, food, house, car, and clothing. All of these things are available without needing to know how to create them oneself because of a concept from economics known as “the division of labor”. Basically, this is the idea that by specialization and trade, human beings can produce more than if they had to produce all of the products necessary for survival on their own. Implicit in the idea of trade is the concept of private property rights: that a person is entitled to keep and benefit from the material goods he produces. Also implicit in the concept of trade is the concept of justice: that each person should only receive a benefit, in this case, material goods, because he has earned it. The concepts of private property rights and justice are principles that one must obey in order to live successfully with others in society. In addition to the material benefit one receives from living in society, it should also be noted that there is a certain “emotional” or “spiritual” satisfaction (in a non-mystical sense) from doing so. The concepts involved here are somewhat more complicated than the more obvious material benefits of living in society, but they do exist. These benefits include friendship and romantic love. These relationships also demand that you treat people in a certain way. If you constantly lie to and betray a person, then they will not remain your friend for long, because there is no benefit in it for them. If you constantly fail to live up to promises of fidelity to a lover, then they will soon seek love elsewhere. Such relationships demand that you be honest and that you keep your promises. Furthermore, the need for such relationships demands that you judge others, and determine if they are worthy of your esteem and love.

Implicit in the idea that social existence is preferable to living alone is also the condition that one will be able to create and benefit by the things one creates. For instance, if a farmer is to benefit from living in society, then he must be free to produce crops, and to exchange those crops with others for the things he needs to live. If this social condition is not met, then living alone is actually preferable. For instance, living alone on a desert island is preferable to being in a totalitarian dictatorship or concentration camp, where you are not free to produce the material goods necessary for living, and to form relationships with people of your choice. Only if the society one lives in recognizes and respects the sanctity of the individual to produce the things necessary for his existence and to engage in the sorts of relationships that benefit him emotionally, will it be a society worth living in.

Now that the implicit assumptions contained in the question “What will keep people moral without religion?” have been examined, the answer becomes simple: Morality, by which I mean the principles and standards necessary for living, is necessary precisely because I want to live and pursue my own happiness. If anything else is meant by “morality”, then I reject it as either a mystical fantasy or as a collectivist nightmare, not worthy of my time.

There are many other issues that are closely related to the proper moral system I have set forth here that should be explored in greater detail. For instance, a discussion of government, and its essential role in a proper society, needs to be discussed. I think that government is essential for at least two reasons. First, human beings are not omniscient, they can be mistaken. Second, all people must choose to act right, and they are therefore capable of making the wrong choices. This means that a person can mistakenly believe that another person has committed a wrong, and a process is therefore needed to determine when a particular individual accused of committing a wrong against another has in fact done so. (This “process” owed to all people accused of a crime is commonly referred to as “due process”.) It would also be useful to flesh out the content of morality in the following sense: What are some of the specific “principles and standards” by which one must act in order to live? I have already discussed one, which is the most important: the habit of thinking, and applying that reasoning to the task of survival, which can be described as “rationality”. But simply saying: “If you want to live, then be rational.” is probably not sufficient guidance without looking into what that means in various common situations. But, in order to avoid turning this into a book, I will leave all of that for another time.

American Housing and Credit Market Are Not Laissez-Faire

The notion that the current “housing crises” is in any way a result of laissez-faire capitalism is utterly ridiculous. Laissez-faire capitalism has never existed, and since the late 19th Century, when America came the closest to laissez-faire capitalism, what has existed in America is a growing welfare and regulatory state, similar to the fascist variety of socialism. This article makes it clear that the current economic problems were caused by the Federal Reserve, which is a government institution, and essentially represents a nationalized, socialist monetary system.

Under laissez-faire capitalism, gold or some other real value would serve as the basis of the money supply, and there would be a competition in money. This competition of money supplies would take the following form: banks and other businesses would issue paper money with a distinct look and color, which would probably be trade-marked, so that no other person or business could rightfully issue currency with a similar look. Their private currency would have to be backed by some “real value”, such as gold, silver, an index fund in the stock market, etc, otherwise nobody would be willing to hold it. Then, if any particular business’ money supply were over-inflated by it, people would sell that money in favor of other private money that was a more stable store of value and medium of exchange. This would be true laissez-faire capitalism in banking and money.