I have created an outline in PDF format of Constitutional legal issues associated with quarantine law:
Category: Law
Law and Jurisprudence
Corona Virus Questions
By this point, everyone knows what COVID-19 is, so this topic needs little introduction. The public, media, and political reaction to it is certainly new in my lifetime. People in their sixties or seventies may remember a time when there were health scares of this magnitude, with smallpox or polio, but no one born after about 1965 really remembers them. The last known smallpox case occurred in 1977, and polio was drastically reduced in the late 1950’s, after a vaccine was developed.
The question that I cannot quite answer in my mind is this: Is the public reaction warranted? Even if the reaction is merited, I think we need to think carefully about what solutions to the problem are justified. Sometimes, as the old saying goes: “The cure is worse than the disease.”
Is Corona Virus a great danger? There is sometimes great difficulty in knowing what the right answer is on a complex scientific question, where even the most knowledgeable are operating on limited information. This article, written by a medical doctor makes the same point:
“All of this whiplash points to one perhaps uncomfortable thing: no one really knows how bad COVID-19 is, and how much damage it could eventually lead to.” https://blogs.scientificamerican.com/observations/uncertainty-in-a-time-of-coronavirus/
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Some in the media and on the political left have criticized Donald Trump for being too slow in recognizing or reacting to the virus. This can simply be an error of knowledge. No one is omniscient. This is precisely why you shouldn’t rely on an all-powerful Federal government to make decisions for you. No single human mind can hold that much complex information at one time and make a decision about what is best for your life and situation. It’s why Capitalism and constitutional republicanism are the proper system.
Government employees are poor at dealing with a disaster because the system they operate in is one of rules. There is no “upside” for a government employee who “thinks outside the box” or innovates. If they succeed, they’re unlikely to get a raise. If they fail, and it gets out they broke the rules, they’re likely to get fired. I noticed this before in a different blog entry about the Ebola Virus outbreak that occurred in Dallas:
“This is the essential problem with all government. Government sets rules that are (ultimately) enforced by the barrel of a gun. The CDC bureaucrats only act if there is a rule telling them to act -which is as it should be. So, its no surprise that when this nurse was under the temperature threshold for their no-fly rule, no one at the CDC was going to “stick their neck out” and recommend that she not fly. A bureaucracy doesn’t reward incentive by its employees like a for-profit business -so there would only be “downside” if a CDC employee took initiative.” (http://deancook.net/2014/10/16/i-need-wider-powers/)
Since I wrote this blog entry, I found a great example of the contrast between the culture of initiative that a free market encourages and incentivizes, and the “culture of conformity” that government creates. “The Checklist Manifesto” by Atul Gawande discusses how badly State and Federal government failed after Hurricane Katrina. The real, unsung heroes of that disaster were the executives and employees of Walmart. (http://atulgawande.com/book/the-checklist-manifesto/ )
“The government’s command-and-control system became overwhelmed, with too many decisions to make and too little information available. But authorities clung to the traditional model. They argued with state and local government officials over the power to make decisions, resulting in chaos. Supply trucks were halted and requisitions for buses were held up while local transit buses sat idle.
Walmart executives, however, took the opposite approach from command and control. They realized Walmart’s Hurricane Katrina response could make a huge difference. Recognizing the complexity of the circumstances, CEO Lee Scott announced to managers and employees that the company would respond at the level of the disaster. He empowered local employees to make the best decisions they could.” https://www.shortform.com/blog/walmart-hurricane-katrina/
Walmart dealt with Hurricane Katrina better than the government because private enterprise encourages initiative, while government jobs encourage “covering your ass”.
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What changes should we make in the face of Corona Virus? Even if we need to adjust our behavior temporarily, I think that any permanent changes in our society aren’t desirable, regardless of the risks. To understand this, ask yourself a simple question: “What is life?”
Is life just continuing to breath and maintaining our body’s homeostatic equilibrium? I read an article about how grandparents are having to be isolated from their families and grandchildren, since the elderly are most at risk when it comes to Corona virus. (The mortality rates are much higher for people in their seventies and eighties.) (https://www.usatoday.com/story/news/nation/2020/03/18/grandparents-cant-babysit-kids-at-home-coronavirus-fears/5072304002/)
Reading the article, I had to wonder: How long does Grandma want to go without seeing her grandchildren? How long does Grandma want to live in isolation like that? Does grandma think that life is about nothing but keeping her heart beating and her lungs pumping air? (Ask your grandma what she thinks.)
Do we want to permanently shut down movie theaters, ball parks, and churches, just because we might catch a disease? Is life worth living without social contact with other people?
Clearly, shutting down public events and isolating grandma and grandpa has to be temporary, in the face of an emergency. It cannot go on forever. Life is about more than maintaining homeostasis.
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Now, let’s turn to some of the governmental measures that have been proposed, or even implemented in the face of this threat. (Which may very well be a real threat -I don’t know for sure.) Is governmental force the answer to the Corona virus? Is a totalitarian dictatorship more “efficient” at dealing with something like this?
The Chinese were certainly quick to build hospitals and implement quarantine…I mean…after their attempt to cover it up failed. The Chinese doctor, Dr Li Wenliang, who originally discovered the virus and tried to warn people was initially arrested and threatened by the Chinese government. https://www.bbc.com/news/world-asia-china-51364382
Additionally, it appears that the Chinese government’s lack of transparency and openness about the virus meant the Western world didn’t find out about it until it was too late to do anything to contain it:
“China has a history of mishandling outbreaks, including SARS in 2002 and 2003. But Chinese leaders’ negligence in December and January—for well over a month after the first outbreak in Wuhan—far surpasses those bungled responses.” https://www.theatlantic.com/ideas/archive/2020/03/china-trolling-world-and-avoiding-blame/608332/
The Chinese government’s failure demonstrates a direct relationship between the initiation of government force and the spread of this disease. A free society and a free press would have had a much better chance of containing the initial outbreak.
Once the virus was outside China, some freer countries seem to have handled it better than others. Italy has now surpassed China in the number of deaths. But, South Korea has done remarkably well:
“A week after the Jan. 27 meeting, South Korea’s CDC approved one company’s diagnostic test. Another company soon followed. By the end of February, South Korea was making headlines around the world for its drive-through screening centers and ability to test thousands of people daily.” https://www.reuters.com/article/us-health-coronavirus-testing-specialrep/special-report-how-korea-trounced-u-s-in-race-to-test-people-for-coronavirus-idUSKBN2153BW
This Reuters article goes on to say that the US response hasn’t been as good. But, it notes that a lot of this had to do with bureaucracy at the FDA:
“How the United States fell so far behind South Korea, according to infectious disease experts, clinicians and state and local officials, is a tale of many contrasts in the two nations’ public health systems: a streamlined bureaucracy versus a congested one, bold versus cautious leadership, and a sense of urgency versus a reliance on protocol.” https://www.reuters.com/article/us-health-coronavirus-testing-specialrep/special-report-how-korea-trounced-u-s-in-race-to-test-people-for-coronavirus-idUSKBN2153BW
Additionally, South Korea is a much smaller country than ours. It’s not much bigger than some of our states. This suggests that what is needed is a political apparatus that is closer to the people, and closer to the problem. Unfortunately, we have ceded too much power to the Federal government, rather than letting individual state governments deal with local problems, which they are closer to, and will have a better feel for.
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What about trying to stop the problem at our borders? Is a temporary restriction on people entering the country from certain areas of the world, especially China, desirable? I’ve wondered if a lot of U.S. Hispanics might not have changed their tune. Are they now wondering why Trump isn’t doing more to keep Asians out of the US? A lot of the immigration debate is driven by tribalism on both sides. As I coincidentally mentioned some time ago, I doubt most Hispanic-Americans would be as against immigration restrictions if the majority of immigrants were Chinese:
“Would the ‘Hispanic leadership’ in the Democratic Party care so much about immigration if most of the immigrants were German, or Chinese? (I doubt it.) Obama’s policies on immigration were another appeal to a tribalistic pressure group, just like his support of “Black Lives Matter”.” http://deancook.net/2018/12/17/barack-obama-tribalist-in-chief/
At the beginning of the Twentieth Century, a lot of immigration restriction was aimed at preventing Chinese entry into the country for precisely this reason. They brought epidemics with them. For instance, San Francisco was the location of a bubonic plague outbreak in 1900-1904, which was focused in that city’s Chinatown. https://www.sacbee.com/news/california/article240714036.html
All that said, I am in favor of free immigration, because it is consistent with the free market. But, requiring people to undergo a short quarantine period before entering the country could certainly be a reasonable regulation. Denying entry to people specifically known to carry communicable diseases can also likely be justified. You don’t have a right to knowingly get other people sick with your germs -that is an initiation of physical force, just like if someone recklessly drove a car and killed someone. I do, however, think this is a matter for state government, not federal. http://deancook.net/2014/10/30/i-just-realized-there-is-no-authority-under-the-constitution-for-the-feds-to-impose-a-21-day-quarantine-on-persons-from-africa/
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What about some of the aggressive measures that have been implemented at the State or local level in the United States? Are they justified? For instance, San Francisco is only allowing people to leave their homes to get groceries or pick up essentials. https://www.yahoo.com/entertainment/greater-san-francisco-area-residents-195831637.html
Are cities like New York, San Francisco, and Dallas doing the right thing with aggressive, involuntary mass-quarantine measures? (Such as restaurant closings, bar closings, “shelter in place orders”, and the like?)
The “shelter in place” order in San Francisco pretty much has to count on voluntary compliance because there isn’t sufficient governmental force in place to enforce it. How will the cops know if you’re going to the grocery store or not? What if you say you’re not carrying ID? Since homeless people are exempt from the order, how will a cop know you’re not homeless? Short of a system of police checkpoints, an internal “passport system”, and heavy penalties for anyone violating this order, it is unenforceable without voluntary compliance.
In fact, compliance with quarantines and social distancing measures has to be almost entirely voluntary. As a free society, we don’t have the systems in place to enforce mass quarantines against people’s will. (And, it’s not desirable.)
I suppose someone could argue something like: “Emergencies can happen. Systems, like the ability to enforce mass quarantine, in San Francisco and New York, are needed. We need systems in place for mass lock downs, holding people without due process, and violations of the freedom of assembly.”
But, what is an “emergency”? It’s a temporary unexpected calamity. If virus outbreaks happened all the time, they wouldn’t be emergencies. We’d develop technologies and social customs to deal with them. (Everyone would learn to wear bio-hazard suits in public, people would insist that others show them a “clean test result” before letting them into their homes, etc.) No police state would be necessary in that case. The free market and freedom of association could handle it.
But, if virus pandemics remain unlikely, “outlier”, events, as they probably will, then putting into place governmental systems and sufficient force to be able to enforce a “shelter in place” order like they are proposing in New York, and have implemented in San Francisco, could be abused by any would-be tyrant or oligarchy looking to seize power and subvert constitutional republican government.
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If governmental initiation of physical force is never the answer, even in an emergency, then what should be done?
First, it isn’t a good idea to wait until the emergency occurs to figure this stuff out. We need to think carefully about what sorts of temporary governmental measures are acceptable when emotions aren’t running high. The matter requires sober and careful consideration by legislatures and courts, with an eye to due process, basic civil liberties, property rights, and the sanctity of the individual. But, since we are apparently already in the emergency, I would like to propose some “operating principles” for judging different measures being proposed by our Federal and State governments in dealing with COVID-19.
(1) The more each individual can choose their own level of risk, the better.
People can choose whether they want to go to bars, restaurants, and gyms. People can choose if they want to fly on an airplane, or travel on a cruise ship. No one else is being forced to do these things, and mass-restrictions on freedom of assembly should be used extremely sparingly.
I recognize that one person’s decision to take the risk affects other people’s lives. If I go to a restaurant, and get infected, then I could potentially infect other people. But, is mere risk of harming others justification for long-term restrictions on freedom of assembly when there is no evidence that the particular people assembling are sick? Think about this in other contexts. We could save a lot of lives by outlawing cars. People who drive in cars put pedestrians and bikers at risk, so they are, in some sense, putting people who didn’t chose to drive at risk. No one really “needs” a car, do they? Why don’t we get rid of them? Because the inconvenience on our lives is too great.
(This is not to say quarantines are never justified, as further discussed below.)
(2) The more local government can decide on what to do, the better.
County decisions are better than State decisions, and State decisions are better than Federal. Small countries like South Korea can react better than large countries, because their leaders are closer to those they represent. In the United States, each state should be viewed more as its own country, and allowed to deal with the problem, free from Federal interference.
(3) Particular people, who are a known objective threat, should be treated and quarantined, while respecting their due process rights.
The focus should be on encouraging people to be tested and treated through voluntary measures. This seems to be part of what has made South Korea so successful in dealing with the problem:
“The preventative measures being taken in South Korea have so far involved no lockdowns, no roadblocks and no restriction on movement.
Trace, test and treat is the mantra. So far this country of over 50 million people have been doing their bit to help. Schools remain closed, offices are encouraging people to work from home, large gatherings have stopped.” https://www.bbc.com/news/world-asia-51836898
Forced quarantine should be a last resort, and only when there is good evidence someone has the virus. Courts should be set up to provide Skype or other teleconferencing hearings for those quarantined to ensure their due process rights. No one should be held, or forced to stay in their home, more than 24 hours without the State getting approval from a court.
(4) Mere economic hardship should not be grounds for a bailout at other people’s expense.
Where does that end? If a restaurant can be bailed out because no one wants to eat there anymore, then what about all the other people who, in normal conditions, see their business fail? A natural disaster is an insurable event. If a business owner is concerned about business shutdown due to an emergency, then contact Allstate or State Farm, not the Feds.
The Trump plan to give everyone $1,000 makes no sense. Goods aren’t produced by the government. If you print an extra $1,000 and somehow magically put it in everyone’s bank account overnight, then they’ll just bid up the price of goods and services, since the quantity of goods and services will remain the same. That’s a prescription for price inflation.
But, with that said, when there is government-enforced quarantine, there is a good argument for that particular individual or business being compensated. If a person is forced not to work for two weeks because we, as a society, have said they might spread a disease, then that particular individual probably should be entitled to some form of support or compensation during that time-period, because it is essentially a governmental taking of private property under the Fifth Amendment of the Constitution.
(5) Fundamental civil liberties, rights to free assembly, freedom of movement, and due process must be observed.
But, this can occur within the specific context of an emergency. The freedom of assembly is not the freedom to knowingly or even negligently infect other people with your disease. People with specific, known communicable disease can be quarantined, with due process.
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A natural disaster can call for highly unusual government responses, but there is a limit. Even in an emergency, there are things that should not be done, because, in the long-run, free societies have proven to be more prosperous, healthy, and “pro-living” than the alternative, and would-be tyrants will tend to find emergencies, if not manufacture them, to justify the seizure of power.
The “Hot Button Issue” of Abortion
I wanted to write a little about this because I rarely do. I am also hoping that I can bring a somewhat “nuanced” viewpoint to a discussion that tends to be driven by pure emotion. Right off the bat, I will state that I do think there should generally be some legal right to terminate a pregnancy, with a recognition that there may be some legal “line drawing”, which I think reasonable parties can disagree on. If you disagree with me, please at least hear me out.
Biological evidence seems to show that a fetus does not have a rational capacity. In fact, it may be that even a newborn infant does not have a rational capacity, which develops some time after birth. This is because the cerebral cortex appears to be underdeveloped, even at birth. This feature of the human brain is responsible for most of what we think makes us human. It also appears to be the physical structure involved in what philosophers would call “the rational faculty”. The reason for this late development of the cerebral cortex has to do with how the fetal body and brain develops, which follows the path of evolution. For instance, human fetuses have gills and a tail at a very early stage. Since the cerebral cortex developed last in the our pre-human ancestors, it makes since this feature comes about last. It’s also necessary to keep brain size fairly small so thet the baby can pass through the mother’s birth canal. https://www.sciencedaily.com/releases/2010/07/100712154422.htm
The fact that a cerebral cortex is not fully developed even at birth is significant to me because rights are based in the fact that human beings can deal with each other on the basis of reason and persuasion, making the use of physical force against each other unnecessary:
“The source of man’s rights is not divine law or congressional law, but the law of identity. A is A—and Man is Man. Rights are conditions of existence required by man’s nature for his proper survival. If man is to live on earth, it is right for him to use his mind…” (Atlas Shrugged, Ayn Rand.)
However, the point at which a baby develops a rational faculty in biology is probably not fully understood, and I will move forward with the rest of my argument on this issue without reference to whether a baby or a fetus has a sufficiently developed cerebral cortex or not. My argument for some legal right to abortion for some period of time during pregnancy doesn’t stand or fall on the issue of when the cerebral cortex is sufficiently developed.
How are rights violated? Rights are violated by other’s use of force to deprive you of a value against your will.
“Man’s rights can be violated only by the use of physical force. It is only by means of physical force that one man can deprive another of his life, or enslave him, or rob him, or prevent him from pursuing his own goals, or compel him to act against his own rational judgment.” (The Virtue of Selfishness, “The Nature of Government”, Ayn Rand)
This does not mean that force can never be used. It just means the times that force can be used are limited to those in which you are not trying to deprive another person of a value. For instance, force can be used in retaliation or self-defense.
Of special note in this context, is that there are times a person can use force against others, and it isn’t just when they are defending themselves or using retaliatory force.
There are at least two types force you can use to protect yourself:
1. Self-defense from intentional murder or other crime.
2. Use of force to prevent an unintentional collision with another person. For instance, if you use force to stop someone who has tripped from falling into you and knocking you over.
My position is that terminating a pregnancy is like this second type of use of force. It’s not force used in self defense. It is force used to stop the purely reflexive act of a fetus in attaching itself to a mother’s body during pregnancy, or the act of removing it once it has reflexively attached itself to the mother’s body.
Why would a woman need to terminate a pregnancy? All pregnancies are inherently risky for a woman. Women still die in child birth in the first world.
If she becomes pregnant and decides that she doesn’t want to take that risk, then she cannot reason with the fetus to explain why she wants it to detach itself from her body. It’s a purely reflexive act, regardless of how developed a fetus’ brain is.
Abortion is analogous to self-defense. The minimum of force is being used to detach the fetus, similar to how the minimum of force is used to prevent someone from killing you.
Does it matter that the mother chose to have sex, while In the above scenario of someone tripping and falling into you, you didn’t choose to have someone fall on you?
I would note that this would still justify abortion in the cases of rape. Since a woman who is raped didn’t choose to have sex in that scenario, my analogy is “spot on”.
At this point we are dancing around whether the fetus has any rights. What are rights? Why do we need them? This is where I and a religious advocate of rights part ways. We have fundamentally different definitions of “rights” and their basis.
Rights imply an autonomous actor who needs to take action to gain the values necessary for living. A fetus, by its very nature is physically attached to the mother. Choice doesn’t play a role in its existence.
If the mother could somehow transfer the fetus to an artificial womb, with no health danger to the mother, that would be something to consider, but we don’t have that technology yet. That means, for now, abortion is the only option for a woman who doesn’t want to risk her health with a pregnancy.
Parenthetically, I think a woman shouldn’t be able to force a man who isn’t her husband to pay child support. If a woman wants the father of her child to pay for her child, she should enter into a contract with him. I also think a man should have no right to see a child or be a part of its life without a contract with the mother. This “contract” is basically what marriage is about -or should be under an ideal political system. (That, and the sharing of one’s finances and property with the other person.)
At this point the more wild-eyed will go with the ‘reductio ad absurdum ‘ argument: “If abortion is okay, then you must think killing newborn babies is okay, since they cannot take care of themselves and there is a health-cost imposed on the mother by that too. Furthermore, maybe science will show that the rational faculty doesn’t fully develop until age 2.”
My response is: 1) the baby is detached, biologically, from the mother after birth. 2) Given that fact of biological detachment, it makes sense to “draw the line”, legally, there and presume a baby is capable of rational thought, even if such capacity may not still arise for some time. These are the minimum criteria I hold for an organism being accorded individual rights: 1, A biologically distinct organism, that, 2, has a rational faculty or capacity of some sort, necessitating that you can deal with it on the basis of reason and persuasion, unlike the lower animals that you can only deal with by means of force.
Should the “line” for when abortion is legal be drawn somewhere before birth? Say, at seven months, or even six? Should some regulation of the types of abortions, or when abortions are allowed prior to 9 months, be in place? I am willing to entertain those sorts of arguments. (Assuming no unusually high level of health threat to the mother, or some massive birth defect is discovered, after the general prohibition date, in which case there should be a judicial exception of some sort.)
Would I personally want my wife or girlfriend to have an abortion? Assuming that: One, she hadn’t been raped, two, she had no unusually high level of health risk, and, three, the fetus had no birth defects, then I wouldn’t want her to do it. I’d ask her not to, and try to talk her out of it. But, at the end of the day, I recognize it’s not my body, it’s not my health risk, and it’s not my decision.
Comparing Interracial Crime Statistics
I try to be very careful with statistics. First, there is the possibility that someone has actually misrepresented the underlying data. Second, even if the underlying data is correct, it is easy for a statistician with an agenda to use mathematical techniques to show results that don’t really give a correct context for the data.
When it comes to levels of crime committed by different racial groups, it’s really hard to find reliable data. (My theory on that is because most left-leaning academics know what it will show, and they don’t want the public to know it.)
I knew that black people commit a disproportionate amount of violent crime. (That is, they are only about 13% of the population, but they commit more than 13% of the violent crimes.) What I was having trouble finding was numbers on interracial crime -that is the number of black on white violent crimes and the number of white on black violent crimes.
Thanks to an article , I found good credible data from the FBI on interracial murders. So, for instance, in 2015, of the 3,167 white people murdered, 500 of those victims were murdered by a black person. In 2015, of the 2,664 black people murdered, 229 of them were murdered by a white person. (Intra-racial murder is much more prevalent for both groups. In other words, most whites are murdered by other whites, and most blacks are murdered by other blacks. But, that is not what I am focusing on here.)
So, there were 500 murders of white people committed by a black person in 2015 and there were 229 murders of a black person committed by a white person. Right away, that number is clearly disproportional from the number of black people in the United States. Since black people make up only about 13% of the population, the fact 500 white people were murdered by blacks, while only 229 black people were murdered by whites is remarkable.
But, I don’t know exactly how to compare these two numbers. My probability and statistics skills are not that strong. One possible way to compare them is to take the total number of black on white murders (500) and divide that by the total number of black people in America. (Roughly, 40.5 Million). Similarly, take the number of white on black murders (229) and divide that by the number of white people in America. (Roughly 233.7 Million). This will give you:
500/40.5 Million= 0.00001235 and 229/233.7 Million = 0.00000098
Then, you turn both of these into percentages by multiplying them by 100, which is: 0.001235% and 0.000098%
My thinking is that this is like rolling a six-sided die. The probability that you will roll a 6 is 1/6. The probability that you will roll a 5 or a 6 on one roll is 1/3.
You can think of the statistics on homicide above as like rolling two different dice. One die is a 40.5 Million-sided die. This is the black on white crime die. There are 500 “sides” of that die that would be a black on white crime, while the rest of the sides are all the black people who don’t murder white people. Similarly, there is another 233.7 Million-sided die, and on that one, there are 299 sides that are white people who commit a white on black murder. If you make that assumption, then the way to compare the two probabilities seems like it would be to take the first percentage, 0.001235% and divide it by the second percentage, 0.000098%. The result is 0.001235%/0.000098% = 12.6. To me, this means the probability of a black on white murder is 12.6 times as great as a white on black murder.
However, I am not sure this reasoning makes sense entirely. I am assuming that *every* black on white murder and *every* white on black murder is committed by different people. In other words, I’m assuming that of the 500 black on white murders, each murder was committed by a different black person. It’s possible that the *same* black person committed all of the 500 black on white murders in 2015. You cannot tell from these numbers alone. (Same for the white on black murders.)
It’s also possible that I don’t understand probability calculations very well (which I don’t), and I’m making some other mistake. I wish more people would discuss this matter, and try to come up with good numbers, but the data, much less an analysis of it, seems to be almost completely non-existent. (Like I said, I think most people know what the results of the analysis would be, and they don’t like to think about it, or they have a political agenda.)
Evidence
Lets say Albert tells me he saw Victor commit a murder 30 years ago.
Victor categorically denies it.
I say to Albert: Do you have any physical evidence of this murder? (Even a dead body?)
Albert: No
I say to Albert: Do you have any other witnesses that can corroborate what you are saying?
Albert: No, in fact some of the people who I say were there say they don’t remember this.
I say to Albert: Where were you when this happened?
Albert: I was at a party.
Me: Were you drinking?
Albert: Yes.
Me: How long ago did this happen?
Albert: 30 years ago.
I don’t actually think Albert has said anything here. All he has is his statement, and he admits that he was drinking. I know drinking alters perception of reality and memory. https://pubs.niaaa.nih.gov/publications/aa63/aa63.htm
Albert has no credibility, and I’m simply going to regard his assertion as “arbitrary”. He has no credible evidence to back up this assertion. Albert’s assertion is neither true nor false. It is simply “arbitrary”. It’s like the claim: “There’s an invisible gremlin on my shoulder, but only I can see it. Now prove that I’m lying.” The onus of proof is on he, or she, who makes the assertion.
“‘Arbitrary’ means a claim put forth in the absence of evidence of any sort, perceptual or conceptual; its basis is neither direct observation nor any kind of theoretical argument. [An arbitrary idea is] a sheer assertion with no attempt to validate it or connect it to reality.” http://aynrandlexicon.com/lexicon/arbitrary.html
If your response is: “You can’t prove Albert didn’t see this murder,” then you’re essentially asking Victor to “prove a negative”. Victor says it didn’t happen. How is he supposed to present evidence of something that didn’t happen, when the person making the assertion hasn’t really presented any credible evidence for it?
Now lets say two people both make an assertion that on two separate, and unrelated, occasions, Victor committed two separate murders. They both admit they had been drinking at the time, and have no other witnesses to corroborate what they assert, nor do they have any physical evidence to back up what they assert. The fact that two people (or three, or four) make completely unrelated assertions doesn’t somehow make any one of those assertions more or less true. You cannot say “A is true because B is true,” and then turn around and say: “B is true because A is true.” I think this is an example of “Begging the Question”. https://en.wikipedia.org/wiki/Begging_the_question
If you could show that Victor had, in fact committed one murder with some independent evidence of that murder, then that probably would be some evidence that he had committed the second murder. This is because we know that someone who does an action one time will tend to act in accordance with a pattern or habit when doing the same action on another occasion. But, you’d first have to put forth some independent evidence that he committed the first murder. Simply using the unsupported assertion that Victor committed a first murder to prove that he committed a second, unrelated, murder, and, in turn, using that second, unsupported assertion of an unrelated murder to prove that he committed the first murder, is bad reasoning.
Now lets say you were accusing Victor of some sort of sex crime, like indecent exposure or attempted rape. Victor says it didn’t happen. He denies it. If a person claims that they had been drinking alcohol 30 years ago when they witnessed this incident, does that hurt their credibility as a witness? Yes. The analysis is the same. If they have no physical evidence of this, and no other witnesses to corroborate their story, then the accuser has made what can only be described as an arbitrary assertion with no credible evidence to back it up.
The fact that a second accuser comes forward and makes an accusation of a separate, unrelated sex crime, where the accuser admits she was very intoxicated, doesn’t somehow make it more or less likely that the other accusation is true. If fifty women come forward making fifty different claims of completely unrelated criminal acts on separate occasions, that doesn’t somehow make any one of those accusations any more or less true unless you can show that at least one of those accusations is true with independent evidence. (In which case you could say the one independently established assertion is proof of a habit.)
Most people will accept my reasoning on the murder, but will want to say that attempted rape is different. They will likely say that women are generally embarrassed or ashamed to report rape, and that this is evidence that a woman, on any given occasion, is telling the truth. This is the fallacy of division. https://en.wikipedia.org/wiki/Fallacy_of_division Even if 99% of the women making rape allegations are telling the truth, that doesn’t mean you can say, in any given instance, that a woman accusing a man of rape is telling the truth. We know that some percentage of women make false rape accusations. https://en.wikipedia.org/wiki/Duke_lacrosse_case So, you cannot simply assume that any particular woman, in any particular case, is telling the truth.
Applying these principles to the case of Judge Kavanaugh, we have two women who admit that they were drinking when each of these incidents happened. I base my understanding of the situation on two news articles, that I recommend you read:
First alleged incident: http://www.waxahachietx.com/zz/news/20180916/kavanaugh-accuser-speaks-out-on-sexual-assault-claim
Second alleged incident: https://www.businessinsider.com/brett-kavanaugh-sexual-assault-yale-deborah-ramirez-2018-9
As far as I can tell, neither of these women has found any independent witnesses to corroborate what they’ve said. Neither of them has any evidence other than their assertion that they witnessed this, and they have less credibility in my mind than Judge Kavanaugh, because they both admit they had been drinking when these incidents allegedly occurred, while Kavanaugh says it didn’t happen. I say “credibility in my mind” because I don’t know either these women or Judge Kavanaugh personally, so I only have the information contained in news articles on which to assess credibility.
The third accuser has prepared an affidavit. https://www.cbsnews.com/news/kavanaugh-accuser-michael-avenatti-reveals-julie-swetnick-today-2018-09-26/
She was careful to never say whether or not she had been drinking alcohol at the parties where she allegedly saw Judge Kavanaugh assault and gang rape women. The question of alcohol consumption is highly relevant for determining her credibility as a witness, and the fact that she was at a “party environment” suggests to me that she probably was drinking alcohol. If she had NOT been drinking, then it would make sense to put that in her affidavit, because it would make her much more credible.
If she were subject to cross-examination, the FIRST question I’d ask her is whether she had been drinking alcohol when she witnessed these things, and how much? That goes directly to her credibility given the memory impairing effects of alcohol.
Additionally, she states in line 14 of her affidavit that “I am aware of other witnesses that can attest to the truthfulness of each of the statements above.” But, she doesn’t say WHO those people are. Why not? It would instantly make her story more credible if she gave names of other witnesses who could corroborate what she’s saying. The fact that she doesn’t do so makes her story very suspicious.
The fact that she was willing to sign an affidavit, and it is therefore “sworn”, doesn’t make it more credible. Since the affidavit is not being used for any lawsuit or for any legal proceeding, I doubt she could be prosecuted for perjury, if it were shown she was lying. If anything in the affidavit was shown to be a lie, none of the lies would be considered “material”. For instance, someone could sign an affidavit saying “I swear that the sky is red,” and then post it on the Internet, but I don’t think that would make them guilty of perjury because the statement “the sky is red”, while a lie, isn’t material to anything from a legal standpoint. (There is no lawsuit where the color of the sky is an issue.)
Given the fact that she doesn’t say if she was drinking alcohol when she witnessed these things, and given the fact that she claims there were other witnesses, but didn’t name them, I regard her entire affidavit as suspect. Any reasonable person who wasn’t lying would know that others would want to know these things and would state them in the affidavit.
She has yet to give an interview. This is also very suspicious and makes what she is saying suspect. It appears that she isn’t willing to let reporters ask her any of the basic questions that are raised from reading her affidavit. Although, I’ve heard, she will give an interview on Sunday for a pay cable channel. (This also sounds strange to me.) At any rate, I hope she is asked some of these basic questions.
These are the three accusers that have come out to date. I find none of them to be credible based on the news stories I’ve seen. I am not saying they are lying. I’m saying they have not presented any credible evidence for what they are saying. I therefore regard their statements as “arbitrary” -having no evidence to back them up. Before I’m prepared to treat a man as a criminal in my personal or professional life, and denounce him and avoid him, I need some level of actual evidence to demonstrate that what the speaker is saying is true.
The other issue in my mind is: Does any of this matter?. All of these incidents of alleged rape or attempted rape are well outside the statute of limitations for prosecution. The only way this matters is in Judge Kavanaugh’s advise and consent process by the Senate. Senators can hold hearings on the issue, but where do they draw the line? Do they have to have a hearing on every outlandish accusation made by any person about a nominated Federal Judge before they can perform their advise and consent role? What if someone claimed Judge Kavanaugh was an alien sent here to take over the world? Should an obvious nut be allowed to testify? Senators have to assess credibility of potential witnesses based on news reports like the ones I’ve cited. Then they have to come up with some standard of “probable cause” on who to have as a witness, and I think, based on that, no reasonable Senator could even regard these women as credible enough to testify at a hearing.
Three Views of The Concept of “Individual Rights”
There are essentially two views on individual rights today:
(1) They are provided by positive law, by a majority or super-majority. So, for instance, you have rights because a super-majority of people ratified the Constitution and that is respected down to today.
(2) They are based in some sort of “transcendent morality”. Provided by god or something like that. Without a supreme being there would be no rights.
Group 2 will criticize group 1 by saying that they don’t actaully advocate rights since they are just permissions granted by a majority (or super-majority) of people. Group 1 will criticize group 2 by saying that there is no scientific evidence for this “transcendent morality” that supposedly establishes rights.
The criticism that both of these groups make of the other has some merit. Since there is no evidence of god and it must be accepted on faith, which is nothing more than somebody’s feelings, then this view of rights seems to have no basis other than in one’s feelings. If rights have no basis other than in the majority’s feelings, then they are only necessary so long as the majority feels that way.
Ayn Rand proposed a different approach. She presents rights as an aspect of her overall system of morality. Moral principles are essential according to Rand because: (1) “Existence exists”. In other words reality is what it is, and has a certain nature. (2) Human beings also have a certain nature, and *if* they want to live, they need to take certain actions. (Grow crops, hunt for animals, build shelter, make clothing, etc.) Human beings must adopt certain “mental strategies” or “guides to action” that will generally lead them to obtain the things they need to live. These “guides to action” are necessary because the human mind has trouble dealing with numerous concrete things in reality without tying them together mentally and recognizing that they are sufficiently similar to other concrete things to be treated the same. For instance, if you have no concept of, “tiger”, then you will treat every such animal you encounter as behaviorally and physically unrelated to the previous tigers you’ve encountered, and you will fail to recognize the benefits and dangers of being around such an animal, and will tend not to deal with tigers succesfully.
Such “mental strategies” or “guides to action” can be called “virtues”. The dictionary has various definitions of “virtue”, but the closest one to what is meant here is “a good or useful quality of a thing.” A human being has a “good or useful quality” if he adopts these guides to action because they will help him to live. For instance, human beings must judge others to determine if they are a benefit or a danger to their survival. This is the virtue (the guide to action) of justice. Human beings must generally refrain from lying when dealing with others in order to maintain their trust so that they will want to deal with them in the future. (This is the principle/virtue of honesty.) Human beings must act in accordance with these principles because simply holding them as ideals without taking action in accordance with them will cause your mind to slowly become disconnected from reality and will make rational thought more difficult. (The principle/virtue of integrity.)
Similarly, the principle of “individual rights” is a guide to action when dealing with other human beings. Since other human beings can be assumed to want to live just as much as you do, then you must give them an “initial presumption” that they will take action to maintain their lives. They will produce the material values necessary for their survival -property. Just as you must not have your property taken from you by means of physical force without your permission, so must they. As such, you must adopt a sort of baseline guide to action when dealing with all other human beings. This is the principle of individual rights, and the specific right that encompases property is the right to private property. (More generally, all rights are subsumed under “the right to life”, which means the right to live the life of a rational being.) If individual human beings are going to live in a social environment and gain the benefits of living together, they must have their individual rights respected:
“‘Rights’ are a moral concept — the concept that provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others — the concept that preserves and protects individual morality in a social context — the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law.” (Man’s Rights, by Ayn Rand)
As an aside, the concept of “government” comes in because there is a temptation to “cheat”, and violate the rights of others while hoping that they will still respect yours. For instance, there is the temptation to rob someone at gunpoint and take their property, or just to pilfer it while they aren’t looking. If you are suspected of this, though, then others will use force in retaliation to stop your initial use of force. Government helps keep people honest by promulgating a list of prohibited acts that are widely-recognized as rights violations. Additionally, it isn’t always easy for others to tell who the aggressor is and who the victim is in a given situation. For instance, if you come upon someone with a gun held on him, is he the victim or the aggressor? Perhaps the person holding the gun on him was just robbed, but perhaps he is the robber? Government is created to provide for an orderly protection of individual rights by a recognized central authority that everybody generally trusts to be a rights-protector.
Going back to where we started: How is this view of individual rights different from groups 1 and 2? Both group 1 and 2 tend to present the concept of “rights” as something that is “nice to have”, but as unessential to the task of living one’s life. Both group 1 and 2 tend to think that a working social order is somehow possible even without respect for individual rights. They generally see rights as “altruistic” -a restraint from complete self-interest. Group 2 says rights are a gift from god, but if they are violated by persons here on Earth, there won’t be any consequences for doing so. (You might go to hell when you die, is all.) Group 1 says that the majority of people just feel that rights are nice to have, but think that a functioning society is possible without rights, and might even be more “efficient”. Ayn Rand says that “society” is nothing more than a number of individuals, and if the individual cannot live in society, then there can be no society. Ayn Rand’s concept of individual rights holds that they are necessary for the individual person to live in a social context, and that that “society” is only good to the extent that it is beneficial for the individual to live in it.
In essence, both groups today are partly right and partly wrong. Group 2 is right that group 1 seems to have no basis for rights other than the whim of the majority. Rand’s conception of rights isn’t “whim”, but the “law of nature”, i.e., the law of identity. Human beings are what they are -they have a certain nature. If they are going to live in a social environment, then others must respect their life and property by refraining from the use of force “as an initial matter”. I say “as an initial matter” because once a specific individual has demonstrated with a sufficient level of certainty that he will not refrain from the use of force to deprive others of their life or property, then force can and should be used in retaliation.
A society that tends not to respect rights will not exist for long because the individuals that comprise it cannot survive. Rights have a functional basis in the facts of reality.
Group 1’s criticisms of Group 2 has merit insofar as group 2 can present no evidence for their “transcendent” basis for individual rights. I’d also note that regardless of whether Group 2 is right about the existence of god, if they believe that reality has a certain nature, and to the extent that they want to live, then Rand’s conception of rights should also be persuasive to them, and can form the basic intellectual foundation upon which a government can be constructed, regardless of whether we all agree about the existence of a creator.
Judging Men
Hugh looked up the length of the pipe. From his position, it really could be considered “up” because centripetal acceleration was at a maximum here. The pipe was a uniform two meters in diameter, and it ran from where he stood, on the inside of the outermost wall of the crew habitat, all the way to the engine. The crew habitat of the interplanetary space ship Maine was like a large, circular bicycle wheel with a long metal cylinder, about a fourth its diameter, running through and perpendicular to its center. The crew habitat spun relative to the cylinder, which was the unmanned, fusion-powered engine of the Maine. One end of the pipe Hugh was in terminated when it reached the engine cylinder. The other end of the pipe terminated in the irsing door that Hugh currently stood on. When the Maine was in “dry-dock” for engine repairs, and the crew habitat wasn’t spinning, the pipe could give quick access to an entry hatch on the engine. When the crew habitat was spinning relative to the engine, the entry hatch could periodically be seen by an observer inside the pipe as it passed over the hatch, but it would be impossible to open in the short time it was in proper position.
While the ship was traveling in space, the pipe Hugh was in served a less glamorous function. All along the pipe were small openings that allowed the material collected from the ship’s human-waste-removal units to empty into it. Centrifugal force and air pressure than forced the waste material towards the irising door, which was periodically opened to empty the material into space. It was Hugh’s job to see to it that the tunnel remained clear of obstructions and clogs. Every Tuesday, Hugh would clean a different section of the pipe, 15 meters ahead of the section he had cleaned the previous week. By custom, all of the apprentices on ship were supposed to take turns at this weekly duty, but the Junior Crewman in charge of making the duty roster each week had decided that Hugh would always clean the pipe. The J.C. had a grudge against Hugh because his father had once been laid off by the company Hugh’s father used to own, before the Chinese Prosperity Alliance Space Expeditionary Force had annexed the Earth’s moon and nationalized all non-C.P.A.-owned businesses.
(Read More: judgingMen-2017)
Corporations as Contract and Government Financing in a Free Society
The philosophy set forth in the fiction and nonfiction of
Ayn Rand establishes an underlying intellectual framework for a
free society. Rand was like a physicist who deals with broad
abstractions about the nature of reality. The engineer then takes
these ideas and builds, among other things, the automobile.
Also like the physicist, Rand the philosopher dealt with the
underlying ethical principles of a free society, but left many of
the details of how a government should be “constructed” to
future intellectuals in the field of law and jurisprudence.1 The
aim of this paper is to help fill in some of the details as to how a proper government should be constituted. Specifically, this
paper deals with the issue of governmental financing in a free
society. (Read More: Corporations as Contract and Government Financing in a Free Society)
Why Act on Principle?
I recently said to a friend that any form of “gun control” is an initiation of physical force, and that allowing even a little initiation of physical force abrogates the entire principle of individual rights to life, liberty and property. When I thought about this some, I realized that the question might actually have been this: “Why act on principle at all? Why can’t you occasionally violate a principle without throwing it out altogether?” This is a good question, even if my friend wasn’t actually asking it, so I will endeavor to give an explanation to something he may or may not have actually been asking.
First, what is meant when we speak of a “principle”? I will start with an example and then move from there to a definition. Let’s consider the principle of respecting the property rights of others. I’ll reduce this to the following maxim: “Do not take the property of others without their consent.”
But, why shouldn’t I just occasionally steel when I can get away with it? For instance, when I go to the grocery store, I could take a few items and walk out without paying. If I stuck to stealing food, I might get away with this indefinitely. So why don’t I?
If I’m going to start stealing from the grocery store, I need to develop a methodology to maximize my chances of success. Lets take a look at my “game plan” for stealing from the grocery store:
When I go into the store, I have to check for security cameras.
I have to wait until employees aren’t watching. Once I’ve stolen the items, I’ve got to casually head outside, still checking to see if employees, store customers, or the manager have noticed me stealing from the store. These people are now all potential enemies to me –a threat to my existence- so I cannot trust any of them. I would constantly have to be “looking over my back”, checking to see if anyone noticed me stealing.
I have to develop a plan prior to going in, as this will reduce my chances of getting caught. So I will spend some time working it out. This is time I could have spent doing other things.
I probably want to go in beforehand, and scope out the store, but this could look suspicious -going in, looking around and then returning soon thereafter. So, maybe not?
What will be my “take” from stealing from the grocery store? I can only steal small items, so probably my “gain” will be less than $50.
There are also the penalties involved, if I’m caught. If I steal less than $50, then I am only looking at a fine in Texas, but the fine is up to $500, plus the store can sue me for treble damages and attorney’s fees. If I steal more than $50 of merchandise, I’m looking at anywhere from six months to a year in jail, plus big fines, plus the store suing me.
I think it’s legitimate to consider the government-imposed penalties like this in my analysis since I am not an anarchist -I actually think one of the major ways the government protects rights is by imposing sufficient “pain” or “cost” on the person committing the crime that they won’t want to do it. Criminal laws have a “deterrent effect”. (This isn’t the only reason for criminal penalties, however, they also serve as a “restraint”. For instance, locking up a murderer prevents him from committing more murders.)
Additionally, many jobs will be unavailable to me if I’ve been convicted of a crime involving “moral turpitude” like theft. Many employers won’t hire you with a criminal record for theft or fraud.
After any particular episode of theft from the grocery store, I might get $50 to $100 in merchandise, if I don’t get caught. I also stand to loose up to a year of my time in jail, plus all of the fines and civil penalties. That seems like a very “bad bet” to me. All of these “costs” associated with such a life of crime will also add up to feelings of anxiety about getting caught. Anxiety is not a pleasant emotion to feel on a chronic or long-term basis. (I also suppose I could eliminate the anxiety by refusing to think or consuming a lot of alcohol, but that means I’m really likely to get caught if I don’t think about how to get away with it.)
You should also consider the long-term risks of a policy of theft. You might get away with theft once or twice, but the more you do it, the more likely you are to get caught. It hardly seems worth all that pain for $50 of “free” stuff from the grocery store.
I’ve shown that stealing isn’t actually “free”, in terms of your effort and thought. There is actually a “cost” associated with every time you steal. There is the cost of all the mental energy and labor you expend executing your thefts successfully. There is the cost associated with the risk you’ll get caught. Furthermore, the greater the value of the things you are stealing, the greater the risk, because you will face more severe criminal and social penalties. More people will be watching, the more the valuable items, so the more effort you must expend. For instance, it’s a lot harder to steal from a jewelry store than a grocery store because everything is under glass. That means additional labor, time, and energy goes into a jewelry heist.
It seems easier to me to just work a legitimate job, and earn the money I need to buy things at the grocery store. Then, when I walk into the grocery store, I can just get the stuff I want, pay for it, and then walk out.
Additionally, as we saw, if you start stealing from the grocery store, you will wind up “juggling” in your mind, so many variables in trying to pull off a grocery store theft that it will overload your mind’s capacity to deal with all of them at once. This actually points to an important purpose that a “principle” serves. A “principle” is a sort of concept. A concept is a mental summation of relevant observed facts into a generalized “mental tag” -a word and/or a definition. (Although a “principle” is more of a “proposition” –a series of words.) It allows your limited mind to deal with many aspects of reality simultaneously, which would otherwise overwhelm it. You can deal with three or four concrete items as individuals in your mind at one time, but any more than that, and you cannot hold it all successfully. Your mind disintegrates into mental chaos without concepts, and when it comes to concepts of action, which is all I think a “principle” is, your behavior will become equally chaotic.
Given all of this discussion, I will define a “principle” as: “A consistent standard of action you use in the face of a particular set of factual circumstances.”
For instance, “Don’t take the property of others without their consent,” is a standard of action that I use whenever I face a particular set of facts. When I see a man-made thing that doesn’t occur in nature, and I didn’t produce it with my own effort, I do not physically appropriate it for my own purposes without the owner’s consent.
Can there be “exceptions” to this principle? For instance, if you break into a cabin when you are stranded in a snow blizzard in the mountains, have you taken the property of the owner without his consent? I believe this isn’t actually an “exception” to the principle, because “factual circumstances” are different from the grocery store example. You can articulate facts that make the situation different from going into the grocery store and taking groceries without the owner’s consent. The primary factual circumstance that is different is that you are willing to compensate the owner of the cabin at a later date for any loss, so it isn’t likely to be without his consent. (This also gets into the issue of what “consent” is, and whether the owner’s consent has to have a rational basis, but I leave that for another discussion.) Another “factual circumstance” that is different is that it is a “life and death emergency”, which means it is an extremely low-probability event that isn’t likely to occur very often –it is “life boat ethics”. (Remember, that part of the reason you don’t steal from the grocery store is you have to hide it, and the more times you do it, the more likely you are to get caught one of those times.)
By thinking of enough concrete scenarios like the grocery store theft example, I eventually decided that stealing just isn’t worth it. It’s better to adopt a general standard of action in my mind: “Don’t take the property of others without their consent.” I leave it to the reader to think through other examples of general standards of action such as “Don’t kill those who haven’t initiated physical force against you,” (i.e., don’t murder), “Don’t misrepresent facts to gain things from others,” (i.e., be honest), “Judge others according to a rational standard, and treat them accordingly,” (i.e., be just), etc.
How does my definition of “principle” compare to the “socially-accepted definition”? If you perform a “define: principle” search on google.com, you get some of the following definitions (as of 11-10-2016):
“…fundamental truth or proposition that serves as the foundation for a system of belief or behavior or for a chain of reasoning.”
“…a rule or belief governing one’s personal behavior…”
“…morally correct behavior and attitudes…”
“…a general scientific theorem or law that has numerous special applications across a wide field…”
“…a natural law forming the basis for the construction or working of a machine…”
These definitions are all essentially, compatible with mine, I believe. For instance, regarding the principle “Don’t take the property of others without their consent,” it is a “fundamental truth” that human beings must produce the material values necessary for their survival, because most of what we need to survive or flourish does not exist in nature. It is also a “fundamental truth” that human beings must use their reasoning minds to produce those material values, and that if you want to live with others they must respect your desire to live and you must respect theirs. (It’s also a “fundamental truth” that human beings are not omniscient, so they need an impartial system of laws and an institution with the socially-recognized exclusive right to the retaliatory use of physical force to protect rights.)
“Don’t take the property of others without their consent,” is also “…morally correct behavior…” If one wants to live, and if one’s life is the standard of the good, then, in order to live peacefully with others, you must recognize the property rights of others.
“Don’t take the property of others without their consent,” is also a “natural law” in the sense that it recognizes that the human mind functions by persuasion, not coercion. It is a “natural law” in the same sense that the law of universal gravitation is a “natural law”. If you want to build a rocket, you must take the law of inertia into account, because “nature to be commanded must be obeyed”. Similarly, if you want to have a functioning society, it must respect property rights.
Tying all of this back in, why would any form of “gun control” be an abrogation of the principle of individual rights? What is meant by “gun control”? Does it merely mean: “Prohibiting the possession of a weapon with an intent to commit a crime”? The intent to use a weapon to violate others rights is the start of an initiation of physical force, and, if it can be proved beyond a reasonable doubt, it can and should be prosecuted by the government. Taking any physical steps towards the eventual goal of force being used to destroy the values of others is an initiation of physical force, and therefore a violation of the principle of individual rights. Anyone who has ever seen a John Wayne movie recognizes that you don’t have to wait for someone to actually shoot you in the gut before you can defend yourself. When the bad guy “goes for his gun”, John Wayne shoots him, and that is self-defense, not an initiation of physical force.
An example of an rights-respecting gun law is something like the statute found in the state of Vermont:
“A person who carries a dangerous or deadly weapon, openly or concealed, with the intent or avowed purpose of injuring a fellow man,…shall be imprisoned….” (See http://ago.vermont.gov/divisions/criminal-division/gun-laws.php, emphasis added, last accessed on 11-12-2016.)
This is a perfectly acceptable and appropriate law regarding the possession of a firearm. It only prohibits carrying a weapon if the person can be shown, beyond a reasonable doubt, to have the “intent” or “avowed purpose” of injuring a fellow man. (Presumably, “injuring a fellow man” here means injuries of one’s fellow men other than for purpose of self-defense.)
This, by the way, is why the government could investigate someone who built a weapon of mass destruction in their backyard. Such a device would not be necessary for self-defense. If you walked around with a nuclear bomb strapped to your back for self-defense, even a “low-yield” device, you’d blow yourself up as well as the mugger -and half the city. Your possession of such a device would create the suspicion that you planned to use it for violating the rights of others. There is no likely or probable need for such a device if you are an individual. Now, you might ultimately be able to show that you had an innocent reason for possessing a WMD, but you’d have to go before a court, and the government’s “prima facie case” of an illegal intent is probably satisfied just by showing that you have no business interest in building such a device. For instance, you aren’t engaged in the business of building nuclear bombs for the US military or some sort of mining or industrial concern. After the government makes its “prima facie showing”, the burden can rightly be shifted to you at court to show some reason that doesn’t involve violating the rights of others. (Additionally, you could face civil liability if you create a “nuisance” that invades or imminently threatens the property of others, which a nuclear bomb probably qualifies as.)
But this isn’t what the left means when they speak of “gun control”. What is generally meant by “gun control”, as that expression is used by most members of the Democratic party and the political left, is the following: The government will initiate, or start, the use of physical force against someone for mere possession of a device, in this case, a devise that uses a controlled explosion to release a metal projectile through a tube by means of an explosive material, such as cordite. The government will initiate physical force against such persons even though they have no intent to use the device to violate individual rights. The initiation of physical force by government takes the form of actual or threatened use of force, and, it will continue to escalate the use of physical force until you comply with its commands, or die -whichever comes first.
Here is how government works: If you break a law, you’ll be arrested (force). If you resist arrest, more cops will come to restrain you (more force). If you use a weapon to resist, the cops will use weapons to stop you (deadly force). Ultimately, all laws follow this pattern: “Do not do X, or you will ultimately be killed.” If the government says: “Do not murder, or you will be killed,” then this is fine because murder violates the rights of others. If the government prohibits things like guns and marijuana, then it says: “Do not own a gun or you will be killed,” or “Do not smoke a joint or you will be killed.” At that point you are being threatened with a violent death despite the fact that you are not violating the rights of others. (Like I said, possessing a gun with intent to commit a crime is different, just as smoking a joint and deliberately blowing the smoke in someone’s face is different.)
So what’s wrong with a little governmental initiation of physical force? You face the same sorts of problems that you face with the example of stealing from the grocery store, but this time it’s on a society-wide level. For instance, if the government says you cannot own a gun to defend yourself from a criminal, when there is no time to call the police to protect you, then the government is implicitly saying: “We’re willing to risk your life in order to satisfy a bunch of soccer moms who have an irrational aversion to guns.” How will this be distinguished from other people’s irrational desires that would involve violating your right to life?
Since no one wants to say: “Government officials can arbitrarily murder some people whenever they feel like it,” the legislature and courts will need to come up with some sort of principled distinction between the prohibition on the ownership of a gun for emergency self-defense and any other number of actions you might take to maintain your life. This is why our legal code has become so “Byzantine” with all sorts of “loopholes”, exceptions, and exceptions to the exceptions. Our legal code is mostly unhinged from any principles distinguishing what should be prohibited and what shouldn’t be because we no longer follow the principle of individual rights.
Additionally, once the principle of individual rights is discarded, the legislature will be constantly bombarded by individuals, and groups of individuals, all trying to appropriate the property of others. It becomes a system of constant “pressure group warfare”, a “cold civil war”, if you will, with a particular political faction gaining power and stealing from some to give to others. They will hold onto power, handing out political favors to their cronies, until some other faction takes over the levers of government and imposes their will on others for a bit.
As I said, a “principle” is a sort of concept, which is a mental summation of relevant observed facts into a generalized “mental tag” -a word and/or a definition. It allows your limited mind to deal with many aspects of reality simultaneously, which would otherwise overwhelm it. You can deal with three or four concrete items as individuals in your mind at one time, but any more than that, and you cannot hold it all successfully. Your mind disintegrates into a mental chaos without concepts, and when it comes to concepts of action, which is all I think a “principle” is, your behavior will become equally chaotic. When society-wide principles like individual rights to life, liberty, and property are disregarded, that society will become chaotic. Eventually the “cold civil war”, of political factions fighting in the legislature, will disintegrate into an actual, shooting, civil war, and people will form gangs fighting one another for the scraps of what is left of civilization, or a “strong man” will take over and the country becomes a dictatorship, with his gang appropriating the property of all. Either way, life will become nasty, brutish, and short without the principle of individual rights to guide us.
All Black Lives Matter, But Some Matter More Than Others
There is an aphorism that I find helpful when deciding what to focus my time and energy on. It’s the expression: “Pick your battles.” In my mind, it basically means you shouldn’t get caught up in minor conflicts and should focus on the “big picture” objective you are trying to achieve. You want to focus your time and energy on things that will most effectively achieve your overall goal.
I see something similar happening with white “liberals” and black “civil rights” groups that express concern over the “problem” of unjustified killings of black men by police. Are there bad cops out there? Sure. But, I suspect that the vast majority of cops are hard-working professionals. Are black men sometimes shot by police without legal justification? I’m sure that also happens. Everyone agrees that the unjustified killing of people in America, and the world, should be reduced to zero. But, what is the most effective method of achieving that goal? And, what does it reveal about a political movement when they seem unable or unwilling to recognize the most effective means of achieving the goal of reducing the number of unjustified killings of black people?
The “Black Lives Matter” web site is fairly short on specifics, in terms of what their goals are. They make a lot of claims but they back few of those claims up. For instance at “http://blacklivesmatter.com/about/” we are told:
“How Black poverty and genocide is state violence.
How 2.8 million Black people are locked in cages in this country is state violence.
How Black women bearing the burden of a relentless assault on our children and our families is state violence.
How Black queer and trans folks bear a unique burden from a hetero-patriarchal society that disposes of us like garbage and simultaneously fetishizes us and profits off of us, and that is state violence.
How 500,000 Black people in the US are undocumented immigrants and relegated to the shadows.
How Black girls are used as negotiating chips during times of conflict and war.
How Black folks living with disabilities and different abilities bear the burden of state sponsored Darwinian experiments that attempt to squeeze us into boxes of normality defined by white supremacy, and that is state violence.” (see http://blacklivesmatter.com/about/, last accessed 9-5-2016)
I couldn’t find any actual proof on the web site to back up any of these assertions. The biggest “head-scratcher” for me was: “How Black girls are used as negotiating chips during times of conflict and war.” Exactly what wars and conflicts are they talking about? What do they mean black girls are used as “negotiating chips”?
The Black Lives Matter web site does discuss why they were formed:
“#BlackLivesMatter was created in 2012 after Trayvon Martin’s murderer, George Zimmerman, was acquitted for his crime, and dead 17-year old Trayvon was posthumously placed on trial for his own murder. Rooted in the experiences of Black people in this country who actively resist our dehumanization, #BlackLivesMatter is a call to action and a response to the virulent anti-Black racism that permeates our society. Black Lives Matter is a unique contribution that goes beyond extrajudicial killings of Black people by police and vigilantes…When we say Black Lives Matter, we are broadening the conversation around state violence to include all of the ways in which Black people are intentionally left powerless at the hands of the state.…#BlackLivesMatter is working for a world where Black lives are no longer systematically and intentionally targeted for demise. ” (See http://blacklivesmatter.com/about/, last accessed 9-5-2016.)
There are numerous dubious assertions made here, but I’ll focus on the last one. The assertion that black people are “…systematically and intentionally targeted for demise.” The assertion here isn’t just that black people are accidentally or unintentionally being killed due to certain bad government policies. An example of an unintentional death due to bad government policy would be something like this: The state highway commission passes a regulation requiring roads to be made out of a certain type of asphalt, and it turns out that asphalt is more likely to cause cars to skid off the road and wreck.
“Black Lives Matters” is asserting that black people are being “…systematically and intentionally…” murdered -intentionally killed without justification. Since “Black Lives Matters” tends to focus on black people who die while interacting with the police, which is why they tend to use terms like “state violence” and “extrajudicial killings of Black people by police”, it is the assertion that black people are intentionally targeted by police for murder.
To be clear, intentional murder by the state has happened before. It happened during the “rein of terror” in post-revolutionary France in the late 1700’s. It happened during the Soviet famine of 1932–33 when forced collectivization of farms by Stalin killed millions. It happened in Rwanda when the Hutu-controlled government ordered the slaughter of ethnic Tutsis in 1994. But are black people being “…systematically and intentionally targeted for demise…” by one of the fifty states or by the Federal government? It seems highly unlikely, and I think the burden of proof lies with “Black Lives Matter” on that assertion, and they haven’t met their burden of proof. It sounds more like a “conspiracy theory” than reality.
The belief that the major problem facing black people in America is the death of black men during law-enforcement encounters has led to the rise of an associated “Black Lives Matter” group, “Campaign Zero”. (See http://www.joincampaignzero.org/, last accessed 9-5-2016; see also, http://reason.com/blog/2015/08/21/black-lives-matter-activists-release-pol, last accessed 9-5-2016.)
This group says:
“More than one thousand people are killed by police every year in America. Nearly sixty percent of victims did not have a gun or were involved in activities that should not require police intervention such as harmless “quality of life” behaviors or mental health crises. This year is no different. There have only been fifteen days this year when the police have not killed somebody. Last month alone, the police killed 100 people. This must stop. We must end police violence so we can live and feel safe in this country.” (See http://www.joincampaignzero.org/problem/, last accessed 9-5-2016.)
This group offers the following policy solutions:
(1) End Policing of Minor “Broken Windows” Offenses
(2) Community Oversight
(3) Limit Use of Force
(4) Indepenently Investigate and Prosecute
(5) Community Representation
(6) Body Cams/Film the Police
(7) Training
(8) End for-profit Policing
(9) Demilitarization
(10) Fair Police Union Contracts (See http://www.joincampaignzero.org/solutions/#solutionsoverview, last accessed 9-5-2016.)
Without going over all of these policy solutions in detail, I will note that some of them are worthy of consideration. For instance, requiring police officers to wear body cameras could be useful for both the officer and the civilians the officer encounters. However, there is clearly an issue of cost involved. Body cameras cost money, and the government’s funds are limited. So, the question is this: Is it worth the cost? Are we as taxpayers prepared to pay for body cameras for all police officers? Is this the best use of that money? I do not know the answer to this question, and this is why we have legislatures to help make a determination as to how to spend limited taxpayer money in a way that most effectively achieves the goals of government.
Is the major problem facing black people today the fact that some black males are killed by police? Even assuming for the sake of argument that some police officers are committing murder and intentionally killing black men for no legally justifiable reason, is this the major problem facing black people today?
This question is important to ask because, as I’ve alluded to already, resources are limited. Given the goal of reducing the number of unjustified killings of black people, is the best use of time, money, and energy, on things like additional training of police officers in use of force and not to engage in racial profiling when they pull black people over on the road? If we spend money on things like body cameras for cops will that most effectively reduce the number of unjustified black killings in America, given our government’s limited funds? How are most black people who are illegally killed in America killed? Is it at the hands of cops or someone else?
First, we should ask the following question: How many people are killed during a law enforcement encounter? The government tries to collect these statistics:
“After the passage of the Death in Custody Reporting Act (DICRA) of 2000 (P.L. 106-297), the Bureau of Justice Statistics (BJS) began collecting data on deaths that occurred in the process of arrest.” (See http://www.bjs.gov/content/pub/pdf/acardp.pdf, last accessed 9-5-2016.)
“From 2003 through 2009, BJS obtained reports on 4,813 such deaths through its Arrest-Related Deaths (ARD) program. About 3 in 5 of these deaths (2,931) were classified as homicides by law enforcement personnel. The remaining 2 in 5 deaths were attributed to other manners, including suicide (11%), intoxication deaths (11%), accidental injury (6%), and natural causes (5%). In three-quarters (75%) of homicides by law enforcement personnel, the underlying offense of arrest was a violent offense.” (See http://www.bjs.gov/content/pub/pdf/acardp.pdf, last accessed 9-5-2016.)
Since 2,931 deaths from 2003 to 2009 during an “arrest” were homicides by law enforcement, this means that approximately 489 people per year were killed by police over 6 years, where the killing was a “homicide”. A “homicide” is not necessarily an unlawful killing. Killing someone in self-defense is classified as a “homicide”, and it appears that these statistics include both legally justified and unjustified killings by police. (The “…three-quarters…of homicides…underlying offense of arrest was a violent offense…” language suggest this.) But, even assuming that all of these homicides were unjustified police killings, that is 489 killings of people (of all races) per year by cops.
Lets compare these 489 killings per year, of people of all races, by cops to the murder statistics.
In 2013, 2,491 people in the US classified as “black” were murdered, according to the FBI. (See https://ucr.fbi.gov/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/offenses-known-to-law-enforcement/expanded-homicide/expanded_homicide_data_table_6_murder_race_and_sex_of_vicitm_by_race_and_sex_of_offender_2013.xls,last accessed 9-5-2016.)
Of those 2,491 black persons murdered in 2013, the race of the offender was classified as “black” in 2,245 of instances. In other words, out of 2,491 black people murdered, 90% of the perpetrators of the crime were also black. How does this compare to the white murder victim rate? The same FBI statistics say that in 2013, there were 3,005 white murder victims, and that the race of the offender was white in 2,509 of those murders. This means that out of 3,005 white people murdered, 84% of the perpetrators of the crime were also white.
Let’s assume for the sake of argument that all of the 489 persons per year killed by cops from 2003 through 2009 were black, and also assume that all of those 489 persons per year were illegally killed by a cop, as opposed to a police shooting in self-defense or pursuant to the cop’s legal right to enforce the law. How does that compare to the fact that in 2013, 2,245 black people were murdered by another black person? 2,245 divided by 489 equals 4.59. A black person is at least 4.59 times more likely to be murdered by another black person than he is to be unjustifiably killed by a cop. (Keep in mind, it’s actually much higher, since I made the “generous” assumption that all of those 489 people per year killed by cops between 2003 and 2009 are black and that all of those killings were unjustified.)
If you were betting on a team that was almost 5 times more likely to win than another team, you’d want to put your money on that team. It would be foolish to spend a lot of money betting on the team that is 5 times more likely to loose, and if you did so, people would question your motives and rationality.
So, why do “Black Lives Matters”, and white “liberals”, focus so much time and energy on the much less likely incidence of unjustified killings by cops rather than the much more likely incidence of unjustified killings of black people by other black people? I have a few possible theories:
(1) They are unintelligent. They simply cannot see the truth because they aren’t very good at making logical connections. There is no shame in this. Some people are just smarter than others.
(2) They are ignorant of the facts. They simply haven’t studied the issue in sufficient detail or have never been presented with the evidence. There is no shame in this, as long as one is willing to continue learning. Nobody is omniscient, and it’s impossible to know everything.
(3) They are irrational. They are deliberately, mentally, evading facts and refusing to make logical connections because it satisfies their unexamined and unquestioned emotional whims. There is great shame in this. Irrationality is a major vice. (It’s actually the major vice, but that is for another time.)
(4) Their actual goal isn’t reducing the number of black people unjustifiably killed. (This is actually just another version of theory #3.) Their goal is to find a scapegoat for the fact that there is a disproportionate amount of crime being committed by black people, and that most of that crime is aimed at other, peaceful, law-abiding, and respectable, black people. It’s a way for the “civil rights” movement to divert the attention of law-abiding and good black people onto something other than the fact that they are the victims of crime primarily at the hands of members of their own race. It’s also a way for white “liberals” to focus their attention and outrage on something that is more “politically correct” than the fact that black people commit a disproportionate amount of the crime in America, and that most of that crime is aimed at other black people.
I hasten to add, that with any group or movement, especially one with ill-defined goals and methodology like “Black Lives Matter”, different people within that movement can have different reasons for being involved. That means these theories aren’t necessarily mutually exclusive. The movement can be made up of some mixture of people with mental states and goals that match all four of my theories above. It’s also possible there are other reasons, that better explain the facts, and I just haven’t thought of them. (I am certainly open to suggestions.)
A person’s time, money, and energy is limited. He or she should pick a cause that maximizes his or her goal. If your goal is truly to reduce the number of black people being unjustifiably killed, then you should focus most of your time, money, and energy on reducing black on black crime like murder.
How do we best reduce the number of black people being murdered by other members of their own race? I don’t have all of the answers, but I suspect many of them are not political solutions, which is probably why politicians don’t like to spend too much time on the subject –they cannot even appear to be doing anything to solve it if the problem must come from within the “hearts and minds” of individuals in society.
Some possible solutions that I see are:
(1) Ending the cycle of dependence and single-motherhood caused by the welfare state. That means ending welfare and requiring people to live with the consequences of their own choices, or to seek private charity if they truly are impoverished through not fault of their own.
(2) Changing attitudes about sex and birth control. Both the “left” and the “right” have some solutions that make sense on this front. (I also think both political groups share blame when it comes to educating young people about sex and when to have it, but that is for another time.) Young women should be encouraged to use birth control if they are going to have sex. (The “liberal solution”.) However, young women should also be encouraged to be more selective regarding the men that they sleep with, and to only have children with men they are married to. (The “conservative solution.”) If young unmarried women do have accidental pregnancies they should be encouraged to either (a) have an abortion, or (b) give the baby up for adoption. Although it is the subject of debate, it appears that there is a connection between being raised by a young single mother and becoming a criminal later in life. (See http://www.theatlantic.com/sexes/archive/2012/12/the-real-complex-connection-between-single-parent-families-and-crime/265860/ ) It would also seem to make sense that a young boy without a reliable father-figure to model himself on is going to be more likely to make bad choices.
(3) Encouraging young men and young women to educate themselves and to instill “bourgeoisie” values of hard work and thrift.
There are others possible solutions I can think of, but that’s not really the focus here. I also tend to think that inner cities need more police patrolling, not less. But, I am uncertain. I suspect, but cannot currently prove, that a large portion of people, both black and white, are murdered by a friend or family member, and I don’t know how much additional police presence in inner cities is going to change that.
It’s not entirely clear in my own mind how to reduce the unjustified killing of black people by other black people, but it is clear to me that focusing on the relatively low occurrence of unjustified police killings of black people in America is an effort to direct attention away from a much bigger problem. The title of the blog entry is a reference to George Orwell’s short novel “Animal Farm”. At the end of it, the pigs who have taken over the farm declare that while “All animals are equal”, as the revolution had initially declared, “…some animals are more equal than others.” “Black Lives Matter” activists apparently believe that the lives of people like Michael Brown matter more more to the “civil rights” movement and white “liberals” than the lives of people like Jamyla Bolden, and there are a lot more of the later than the former.