In a previous blog post, I wrote that the President and the Federal government should impose a 21-day quarantine on persons entering the country from areas of Africa stricken with ebola. I now no longer think the Federal government has the power to do this under the Constitution. In fact, there is no Constitutional authority for the Federal government to restrict entry into the United States at all.
The Constitution is a charter of enumerated powers for the Federal Government. It lists what powers are expressly carved out of state sovereignty( http://en.wikipedia.org/wiki/Enumerated_powers ) If it does not list a power as belonging to the Federal government, then such power is reserved for the states. (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution)
Article I, Section 8 lays out Congress’ powers, and it says nothing about quarantine. In fact, it appears to give the Federal government no power to regulate entry into the country at all, except for the purposes of imposing duties (Art. I, Sec. 8-1) It also says Congress can make uniform laws of naturalization (Art. I, Sec. 8-4), but that is just how people become citizens -not whether they can enter the country. That means the Federal government must be relying on the “catch-all” of Art. I, Sec. 8-3, (“To regulate Commerce with foreign Nations…”), but I fail to see how people entering the country is “commerce” under original meaning. It now appears to me that Congress has no power to restrict entry by people into the country at all -assuming we are going to actually take the Constitution seriously, which I do.
I did some further research online, and discovered this article: http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html It basically seems to say that the courts have found an “inherent power” in the Constitution that allows the Federal government to restrict entry into the country. From the stand-point of original meaning, this seems as problematic as the “penumbras and emanations” that supposedly give rise to a right to privacy in the Constitution (http://en.wikipedia.org/wiki/Griswold_v._Connecticut). I don’t see how Scalia, Thomas, Bork, or other originalist scholars could look at themselves in the mirror in the morning and claim some sort of unenumerated “inherent power” of the Federal government to restrict entry into the country.
Does this mean that quarantine cannot be imposed? I think it must occur at the state level. Each state government must establish its own quarantine laws, consistent with the Fourteenth Amendment’s due process clause.(http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution) As long as some sort of hearing with objective rules of evidence and sufficient proof of a threat to others occurs, then this is probably sufficient. The additional implication of my new understanding of the Constitution, which I won’t get into too much here, is that each state would appear to have the power to set its own rules for entry into that state by immigrants from other countries. This might not be the result that originalists like Scalia would like, but it is what the Constitution seems to require under original meaning.
Category: Law
Law and Jurisprudence
President Refuses to Impose 21-Day Quarantine on Persons Entering the Country From Africa Because He Wants to Sacrifice The Welfare of Americans
Today, I got confirmation from an article that the reason the President and other federal officials are not imposing a 21-day quarantine on people entering the country from ebola-stricken portions of Africa is due to a morality of self-sacrifice that I reject:
“‘It’s typical of what America does best,’ Obama said of the response team. “When others are in trouble, when disease or disaster strikes, Americans help.'”http://www.nbcnews.com/storyline/ebola-virus-outbreak/gods-work-obama-says-u-s-must-support-health-workers-n235776
The President and other federal officials believe it is my job to sacrifice my life for strangers.
I pursue my own rational self-interest, and I am only interested in the welfare of others to the extent that it promotes my own life. For instance, if I had a wife or children, I would be very interested in their welfare because it enhances my own life to have them around. I would take large risks in order to ensure their safety. The same goes for my friends. But, I am not going to willingly sit by and endanger my life, and the life of my friends and family for total strangers.
I recognize that the risk of a major ebola-outbreak in an advanced semi-capitalist economy is small given our superior medical care, but I don’t engage in self-sacrifice, even when the risk is small.
If You Were a Healthcare Worker at Presbyterian in Dallas Who Is Subject to the State’s Travel Restriction, You’re Rights Are Being Violated
I have decided to offer my services as an attorney to any of the health care workers from Presbyterian for free for what I regard as an unconstitutional violation of their liberty without due process of law. If anyone knows any of them, have them call or text message me at 214-336-7440 and I will go down to the Northern District of Texas Federal court today and try to get a temporary restraining order regarding the travel ban that has been imposed on them by the state. I think this is a Section 1983 civil rights case.
http://www.usatoday.com/story/news/nation/2014/10/17/texas-ebola-health-care-workers-travel-ban/17424465/
“I need wider powers!”
In her novel Atlas Shrugged, the socialist villains get together after their numerous attempts to control and plan the economy have resulted in wider and wider disasters. Rather than undoing what they have already done to cause the problem, the lead government bureaucrat, Wesley Mouch declares: “I need wider powers!” A similar spectacle could be seen today with respect to the Ebola outbreak that occurred in my home city of Dallas. It has been revealed that the second nurse from Presbyterian hospital to be infected by “patient zero” reported to the CDC that she had a slight fever. She was planning to fly by plane to Ohio, but she requested guidance from CDC on the matter. Their response was typical of a government bureaucracy:
“Vinson told the CDC her temperature was 99.5 Fahrenheit (37.5 Celsius). Since that was below the CDC’s temperature threshold of 100.4F (38C) ‘she was not told not to fly,’ the source said. The news was first reported by CNN.” http://www.reuters.com/article/2014/10/16/us-health-ebola-usa-idUSKCN0I40UE20141016
Note the double negative here. This is the kind of “weasel language” you would expect from a government bureaucrat trying to cover himself. Instead of saying: “We told her to fly,” which is what really happened, the CDC says: “she was not told not to fly,” in the hopes that they can deflect blame.
As a result this woman flew form Ohio to Dallas, while she was symptomatic. This is significant because ebola only becomes contagious when a person has begun to show symptoms, such as a fever. The CDC, whose alleged purpose is to protect the public from the spread of infectious disease told someone they knew to be symptomatic to board an airplane and fly, thereby potentially spreading the virus throughout the country.
The CDC’s response to the fact that they failed to advise this woman not to fly, which, from every indication, she would have voluntarily agreed to if they had simply asked her?:
“The Centers for Disease Control and Prevention is considering adding the names of health care workers being monitored for the Ebola virus to the government’s no-fly list…” http://www.foxnews.com/politics/2014/10/16/cdc-considers-adding-names-people-monitored-for-ebola-to-no-fly-list/
In other words, the very people that our nations hospitals are depending on to treat patients -doctors and nurses- are going to be placed on the same list as suspected terrorists and told that their right to travel is being restricted without due process of law. The issue of whether and when someone can be restricted in their liberty by virtue of having a dangerous communicable disease is a complicated issue. There may be times when it is justified -but it should never, under any circumstances, occur without that individual being given notice and a hearing in front of a judge. Yet, these people are apparently going to be arbitrarily placed on a no-fly list with no hearing at all.
The CDC’s response to their failure is to whine like the villain Wesley Mouch: “I need wider powers!”
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. Now the CDC response is to claim they need arbitrary power to put people on a no-fly list without due process of law. The real solution is to recognize that “government funded science” is a contradiction in terms, and end the CDC and income taxes so that private individuals can voluntarily work towards real solutions to the world’s problems.
The Epistemology of Originalism
The Constitution embodies certain philosophic, historical, and legal traditions. These included the Enlightenment as a cultural backdrop; the ideas of John Locke, Montesque, and Adam Smith; English legal and political systems; and the experience of the 13 original states under the Articles of Confederation.[1]
Some of the ideas and institutions embodied in the Constitution may have also been novel, such as the Supremacy Clause. This meant that questions regarding the proper sphere of the new Federal Government would not be resolved as political problems of the new Congress or of the State Legislatures, but as legal problems that a court must decide in hearing a case between private parties.[2] Interpreting the provisions of the Constitution would often ultimately lie with how Federal judges chose to interpret that document. But, how should judges go about interpreting it? By what methodology?
The meaning of key terms in the Constitution are often the subject of debate and dispute. For instance, the Second Amendment contains the words “…the right of the people to keep and bear Arms, shall not be infringed…” However, those words are prefaced by: “A well regulated Militia, being necessary to the security of a free State…”, and to the modern ear, a “militia” means something like the Army or the National Guard, and “regulated” means something like “controlled by government” or “restricted by law”. Proponents of gun control seize on the (arguably) modern meaning of these terms, and say that the Second Amendment is referring to the right to keep and bear arms as a member of the armed forces or a state’s national guard. Under this interpretation, the Second Amendment does not guarantee an individual right to keep and bear arms. It is a mere “collective right”.
Others say that this method of interpreting the Constitution is incorrect. They say that you must look to the “original public meaning” of the terms “militia” and “well regulated”, and that they meant something very different at the time they were ratified. This “originalist” interpretation of the Second Amendment holds that the Second Amendment enshrines an individual right of private citizens, unconnected to any organized military or law enforcement, to keep and bear arms, because that is how the average person at the time the Second Amendment was adopted would have understood those words.
Another example of a disputed phrase in the Constitution is the Eighth Amendment prohibition on “cruel and unusual punishments”. To a modern American, forms of punishment like flogging or the stocks would probably be considered “cruel and unusual”. Many would also argue today that the death penalty is “cruel and unusual”. The originalist says the modern understanding of those words is irrelevant. What matters is the “original public meaning” of the phrase “cruel and unusual” when it was adopted into the Constitution. The originalist notes that at the time the Eighth Amendment was penned, the stocks and flogging were common, to say nothing of the death penalty. Therefore the stocks, flogging, and the death penalty is not what is meant by “cruel and unusual punishments”.
Part of the appeal of the originalist view of Constitutional interpretation is the claim that “words mean things” and that the “Constitution means what it says”. In fact, this idea tends to be what its proponents put forward to the public as the meaning of originalism, and as the reason why more originalist judges should be appointed to the bench. An example of this “public meaning” of originalism could be seen with the editorial commentary arising around the US Supreme Court’s decision in District of Columbia v. Heller[3]. In this landmark ruling, the Court held that the Second Amendment to the US Constitution did embody an individual right to keep and bear certain firearms, under certain circumstances, subject to certain legal restrictions.
In support of the Heller decision, a noted Constitutional scholar published an Op-Ed titled: “News Flash: The Constitution Means What It Says”.[4] The author is a Professor of Constitutional Law at Georgetown Law School, so his presentation to the public of what originalism means is significant, especially the title of his Op-Ed, since it is what most people will read. The title of the Op-Ed implies: The Constitution uses specific words. Those words have a specific and definite meaning, and, implicitly, judges should follow that specific and definite meaning.
Another example of the “public face” of originalism is what current US Supreme Court Justice Antonin Scalia has said in public speeches and interviews on the subject of originalism: “‘The Constitution means what it says. You figure out what it was understood to mean when it was adopted and that’s the end of it,’ Scalia said.”[5] Justice Scalia has made the assertion that the Constitution “means what it says” on several occasions, and he asserts that this is the essence of the originalist viewpoint: “[Interviewer:] Had you already arrived at originalism as a philosophy? [Scalia:] I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change…”[6]
Scalia clearly says that originalism stands for the proposition that “words have meaning”, and that their meaning is definite and immutable over time. But, is this what originalism actually stands for? When one begins to study the underlying reasoning being put forward by the originalists in greater detail, it is not at all clear that this method of Constitutional interpretation is necessarily consistent with the idea that “words mean things”. It may not, in fact, be the case that all originalists actually believe that concepts have a definite meaning.
Before analyzing the originalist position, it will be useful to think about the phrase “Words have meaning”. What exactly does that mean? A “word” is commonly defined as: “…a speech sound or series of speech sounds that symbolizes and communicates a meaning usu. without being divisible into smaller units capable of independent use…a written or printed character or combination of characters representing a spoken word…”[7]
Words are the symbols that represent a concept. For instance, the words “dog” in English and “perro” in Spanish both mean the same thing. They both denote the same concept. But what does the concept refer to? This points to the fact that when people say “words mean things” what they really are saying is “concepts mean things” –that concepts refer to something definite. However, if words denote concepts, then where do the concepts come from? What do the concepts refer to? In the history of philosophy, this is known as the problem of universals:
“The problem of universals is the problem of the correspondence of our intellectual concepts to things existing outside our intellect. Whereas external objects are determinate individuals, formally exclusive of all multiplicity, our concepts or mental representations offer us the realities independent of all particular determination; they are abstract and universal. The question, therefore, is to discover to what extent the concepts of the mind correspond to the things they represent; how the flower we conceive represents the flower existing in nature; in a word whether our ideas are faithful and have an objective reality.”[8]
“The issue of concepts (known as ‘the problem of universals’) is philosophy’s central issue. Since man’s knowledge is gained and held in conceptual form, the validity of man’s knowledge depends on the validity of concepts. But concepts are abstractions or universals, and everything that man perceives is particular, concrete. What is the relationship between abstractions and concretes? To what precisely do concepts refer in reality? Do they refer to something real, something that exists –or are they merely inventions of man’s mind, arbitrary constructs or loose approximations that cannot claim to represent knowledge?”[9]
Various answers have been put forward over the centuries to answer the issue of concepts. “Realism” and “nominalism” are two popular explanations for what, if anything, concepts refer to in reality. “Extreme realism” represents the view of concepts held by Plato: “According to this view there are universal entities existing in an extra-physical realm. The ideas in the mind correspond to these entities. The objects in the physical world reveal them. Thus there are universal entities both within and without the mind. Therefore, the mental entities are real.”[10]
Another version of realism is the Aristotelian version: “The ‘moderate realists,’ whose ancestor (unfortunately) is Aristotle, who hold that abstractions exist in reality, but they exist only in concretes, in the form of metaphysical essences, and that our concepts refer to these essences.”[11]
Nominalists attempt to present an alternative to the realist viewpoint:
“At the opposite extreme from this view [the extreme realism of Plato] is nominalism. Nominalism models the idea on the thing. Since the thing is particular, the idea is particular. There are no general ideas because there are no general things. What are called general ideas, or concepts, are merely names, nomina, or even noises, flatus vocis. Thus there are no universal entities either within or without the mind. Therefore, universal entities are not real, in fact they are not even fictions, for there are no such things even within the mind.”[12]
Nominalists hold that all of our ideas are only images of concretes, and that abstractions are merely ‘names’ which we give to arbitrary mental groupings of concretes.[13]
In her book “Introduction to Objectivist Epistemology”, Ayn Rand sets out an alternative explanation for concepts that is different from both Realism and Nominalism. Rand disagrees with Plato that our concepts correspond to entities that exist in some supernatural or “extra-physical” realm. In her philosophy the, “universe” means the sum total of all existence, so there can be no realm that is somehow “outside” the universe. Furthermore, all of our knowledge is based on sensory experience and reasoning from our sensory experience. No realm of “pure forms” has ever been perceived, and there is no mystical insight or “revelation”.[14] She also disagrees with the “moderate realism” of Aristotle:
“…Aristotle held that definitions refer to metaphysical essences, which exist in concretes as a special element or formative power, and he held that the process of concept-formation depends on a kind of direct intuition by which man’s mind grasps these essences and forms concepts accordingly. Aristotle regards ‘essence’ as metaphysical; Objectivism [Ayn Rand’s philosophy] regards it as epistemological.”[15]
Rand also does not claim that concepts are merely names that we give to arbitrarily grouped concretes in our minds, as the nominalists claim: “The nominalist and the conceptualist schools regard concepts as subjective, i.e., as products of man’s consciousness, unrelated to the facts of reality, as mere ‘names’ or notions arbitrarily assigned to arbitrary groupings of concretes on the ground of vague, inexplicable resemblances.”[16]
A key distinction from nominalism in Rand’s philosophy is the fact that she regards concept formation as necessary for living. In other words, the only “reason” that human beings engage in reasoning is because human life would be very difficult, if not impossible, if we didn’t: “Since everything man needs has to be discovered by his own mind and produced by his own effort, the two essentials of the method of survival proper to a rational being are: thinking and productive work.”[17]
“The virtue of Rationality means the recognition and acceptance of reason as one’s only source of knowledge, one’s only judge of values and one’s only guide to action…It means a commitment to the fullest perception of reality within one’s power and to the constant, active expansion of one’s perception, i.e., of one’s knowledge.”[18]
“Thinking requires a state of full, focused awareness. The act of focusing one’s consciousness is volitional. Man can focus his mind to a full, active, purposefully directed awareness of reality –or he can unfocus it…a consciousness able to direct the actions and provide for the survival of a human being…”[19]
For Ayn Rand, the purpose of thinking is human survival. One is considered to be “in a state of full, focused awareness” if one is purposefully directing one’s awareness of reality, and “purposeful” ultimately means aimed at the survival of a human being. Unlike the nominalists, since Rand regarded knowledge as necessary for living one’s life, it ultimately serves that purpose, and a mere random grouping of concretes in one’s mind without reference to that purpose would be self-destructive. Rand would distinguish valid concepts from invalid, or arbitrary, concepts by the fact that reality is what it is, and by the fact that human beings, an aspect of reality, also are what they are. A human being who wants to live, must do so by a specific method that is in accordance with his nature. That method of survival incudes the need to form concepts in accordance with the nature of the human mind, the nature of reality, and the thinker’s life, so that those concepts can further his life. Rand regards concepts as serving a purpose that can serve as a standard of proper concept formation, while the nominalists regard the process as purposeless, or “arbitrary”.
The actual mental process that occurs in concept formation is described in great detail in Rand’s book Introduction to Objectivist Epistemology, and it is difficult to do it justice here.[20] Rand starts out by describing something that exists, an “existent”, and the three stages that perceiving an existent undergoes during concept formation. First an existent is viewed as an “entity”, which is like a child’s awareness of things. Second, an existent is viewed as having an “identity”, which is awareness of specific particular things. A child recognizes and distinguishes a particular existent from the rest of his perceptual field, thereby perceiving its “identity”. The third stage in the mind of a human being consists of grasping relationships among entities by grasping similarities and differences of their identities. The “implicit” concept “entity” is transformed into the “implicit” concept “unit”, which is an existent regarded as a separate member of a group of 2 or more similar members.[21]
Prior to regarding existents as a separate member of a group of 2 or more similar members (as units), all that exists in the mind of the perceiver of an existent is a “percept”. “A percept is a group of sensations automatically retained and integrated by the brain of a living organism. It is the form of percepts that man grasps the evidence of his senses and apprehends reality. The base of all of man’s knowledge is the perceptual stage.”[22]
Essentially, a “percept” is like a mental image of an actual, concrete thing that one perceives, held in one’s mind. If someone recalls their favorite dog in their mind, then this is a percept (or, at least, the memory of a percept). One recalls the actual existent that one has perceived, with his particular shape, his particular color, his particular size, and numerous other characteristics as a complete whole individual –as that particulardog. Prior to becoming conceptual, very young children exist on this perceptual stage, which appears to be the highest level of consciousness held by most vertebrate animals. Eventually young children learn to abstract –to mentally separate attributes, motions, or numbers from entities.[23]
Once particular existents are viewed as units, the conceptual stage has been reached: “With the grasp of the (implicit) concept ‘unit’ man reaches the conceptual level of cognition…”[24] Rand initially defines a “concept” as a “…mental integration of 2 or more units which are isolated according to specific characteristics and united by a specific definition.”[25] The act of isolation involved is a process of abstraction. It is a selective mental focus that takes out or separates a certain aspect of reality from all others.[26] Unlike a “percept”, which is a mental image or mental representation of particular existents observed with one’s sense organs, “…the uniting involved in concept formation is not a mere sum, but an integration, i.e., a blending of the units into a single, new mental entity.”[27]
What is the role of a “word” in Ayn Rand’s description of concept formation? “Words transform concepts into (mental) entities…”[28] Language isn’t just necessary for human communication according to Ayn Rand. This can be understood by realizing that even when a person is completely alone, he still uses language in a sort of “inner monologue” within his mind as he thinks or tries to solve a problem. This “inner monologue” is typically silent, in which one imagines to hear the words one is thinking in one’s mind. But, some people even literally “talk to themselves” aloud while alone and thinking. Rand would likely say that this is because language serves the purpose of providing a perceptual concrete that can act as a symbol in one’s mind representing the concept. In order for a concept to be used as a single unit, “…the enormous sum integrated by a concept has to be given the form of a single, specific, perceptual concrete, which will differentiate it from all other concepts.”[29]
Rand gives two examples of concept formation in Chapter 2 of her book. The concept for “length” and the concept of “table”. The pattern in her description of how these two concepts are formed is essentially the same, but each example appears to be used to reveal different aspects of the process. A key aspect of that process is “measurement”, in which there is a mental isolation of a distinctive characteristic of observed entities that all have that characteristic. There is a mental differentiation of 2 or more entities from others by means of a characteristic they have in common with the entities they are mentally isolated from.[30]Measurement is the “…identification of a relationship –a quantitative relationship established by means of a standard that serves as a unit.”[31] The mental differentiation of 2 or more entities establishes a quantitative relationship by means of a standard that serves as the unit.
For instance, when forming the concept “dog”, one perceives 2 or more particular dogs and observes that they have certain characteristics, such as shape, size, and behavior, in common, which is the identification of a relationship amongst the particular dogs observed. The observed dogs are also mentally isolated from other perceived entities, such as cats, birds, and people, based on the shape, size, and behavior that they have in common with each other and that are different from the other perceived entities. Rand defines the characteristics on which units (the dogs) are differentiated from other perceived entities (like cats and birds) as the “conceptual common denominator”, which is the commensurable “…characteristic(s) reducible to a unit of measurement, by means of which man differentiates two or more existents from other existents possessing it.”[32] Birds, cats, and dogs all have some type of shape, size, and behavior, but dogs have a particular distinguishing set of characteristics that represent “…a specified category of measurements within the ‘Conceptual Common Denominator’ involved.”[33] In the case of forming the concept “table”, Rand says that the CCD is shape, which is a characteristic that tables, chairs, and sofas all have in common.[34] In the case of forming the concept “dog”, it would probably be more than just “shape”, because grasping the difference between dogs on the one hand and wolves or coyotes on the other (assuming one had perceived wolves and coyotes) would require an understanding of the size differences between those animals as well as the differences in behavior between wolves and dogs. For instance, wolves behave in a manner that is more “vicious” or “aggressive” and “predatory” than dogs, which have been bred for docility and dependence on human beings. Additionally, given the wide variety of shapes and sizes in domestic dogs, their behavior tends to set them apart as a distinct group more than those other characteristics, which tend to vary greatly. (Consider the size and shape differences between a Great Dane and a Chihuahua.)[35]
Rand says that this process of mentally isolating units, such as perceived dogs on the one hand from perceived birds and cats on the other, involves a mental process in which the units (the dogs perceived) are differentiated from others by means of a distinguishing characteristic, which are a specified category of measurements within the conceptual common demonintator[36] – which is shape, size, and behavior in the case of dogs. These distinguishing characteristics, as already stated, are something like the general “dog-like” shape of dogs (e.g. morphology, claws that do not retract, a tail, four legs), which is different from the “bird-like” shape of birds and the “cat-like” shape of cats, along with the “dog-like” behavior of dogs, such as friendliness towards humans, smelling everything, and wagging their tails when they are glad to see people, etc. Also, it should be noted that the distinguishing characteristics can exist in any quantity, but they must exist in some quantity. In other words, in the mind, the characteristic(s) is retained while “omitting” their particular measurements in the observed existents, the particular dogs that were perceived, that form the existential basis of the unit-perspective.
This brief, and hopefully accurate, summation of Rand’s position on concept formation should make it clear that when someone says “words have meaning” what the speaker means by that will depend either implicitly or explicitly on their position on the “problem of universals”. Do they believe that concepts denote pure “forms” that exist in some other realm, and are grasped by pure mystic insight as Plato did? Do they believe that the essence of a concept exists in each observed concrete instance of that concept, and is grasped by some ineffable “intuition” (the Aristotelian position)? Do they simply throw up their hands and say that it’s all just a matter of arbitrary whim as the nominalists do? Or, do they regard concepts as “…a mental integration of 2 or more units possessing the same distinguishing characteristics with their particular measurements omitted…”[37], where concepts serve a particular purpose that ultimately serves one’s survival?
Surprisingly, Justice Scalia, the premier public spokesman on originalism, seems to fall into the nominalist camp regarding the problem of universals:
“I do not suggest that Madison was saying that common-law lawmaking violated the separation of powers. He wrote in an era when the prevailing image of the common law was that of a preexisting body of rules, uniform throughout the nation (rather than different from state to state), that judges merely “discovered” rather than created. It is only in this century, with the rise of legal realism, that we came to acknowledge that judges in fact “make” the common law, and that each state has its own.”[38]
In the above quote, Scalia seems to suggest that there are only two alternatives for understanding the concept of law: The epistemological realist camp (either Platonic or Aristotelian), which is what Scalia thinks the founding fathers believed, or the “modern view”, in which the concept of law is “made”, rather than “discovered” (“legal realism”). In other words, for Scalia, the concept of law is ultimately arbitrary and purposeless. Legal concepts have no basis other than human social whim and arbitrary convention.
Furthermore, when you look at the underlying arguments in favor of originalism, they seems like arguments that a nominalist would be very comfortable with. Nominalists tend to look to social convention when determining the meaning of concepts. Since the nominalist regards concepts as just arbitrary groupings of concretes in the human mind, with no reason or purpose behind the groupings, the question of why particular concretes are grouped together arises. The nominalist will typically claim it is just a matter of social convention:
“Denying that concepts have an objective basis in the facts of reality, nominalists declare that the source of concepts is a subjective human decision: men arbitrarily select certain characteristics to serve as the basis (the “essentials”) for a classification; thereafter, they agree to apply the same term to any concretes that happen to exhibit these “essentials,” no matter how diverse these concretes are in other respects.”[39]
“Observe that, while condemning Plato’s mystic view of a concept’s meaning, the nominalists embrace the same view in a skeptic version. Condemning the essence-accident dichotomy as implicitly arbitrary, they institute an explicitly arbitrary equivalent. Condemning Plato’s “intuitive” selection of essences as a disguised subjectivism, they spurn the disguise and adopt subjectivism as their official theory…Condemning Plato’s supernaturally determined essences, they declare that essences are socially determined, thus transferring to the province of human whim what had once been the prerogative of Plato’s divine realm. The nominalists’ ‘advance’ over Plato consisted of secularizing his theory.”[40]
Originalists like Justice Scalia also tend to look to “social convention” when discussing the concept of law: “Hence the importance, to all of us, of textual meaning. How is that meaning to be determined? By convention. Neither written words nor the sounds that the written words represent have any inherent meaning. Nothing but conventions and contexts cause a symbol or sound to convey a particular idea.”[41]
Admittedly, Scalia could be saying one of two things here. It could mean that concepts are an arbitrarily grouping of percepts in the mind, based on nothing but human convention, which is nominalism. A more charitable interpretation of this quote is that Scalia simply meant that the words that concepts denote are based on nothing but convention. In other words Scalia could be saying some people refer to the concept “dog” using the English word “dog” while Spanish-speaking people refer to the same concept “dog” with the word “perro”, which is conventional, but the underlying concept has some connection to reality other than mere convention. (It is also possible that Scalia has simply never considered the distinction between words and concepts, and is confused on the issue.) However, a Platonist would not disagree that the word that denotes the concept (“dog” in English and “perro” in Spanish) is conventional. Platonism, nominalism, and any other popular theory of concepts could all agree that the word chosen (“dog” or “perro”) is conventional. The issue is whether the concept that the words denote is conventional. If all Scalia meant was that the word chosen is conventional, then no one would disagree with that assertion. That does not get to the essence of the issue, which is what does the concept refer to, and is there any other basis for it other than mere social convention? The evidence seems to suggest that Scalia is a nominalist, even if his nominalism is implicit, and he doesn’t fully recognize it.
In addition to a nominalist being comfortable with the originalist position, an originalist would not necessarily disagree with the nominalist position on the issue of concepts resting ultimately on nothing but arbitrary social whim. This is because originalists ultimately believe that judges should be restrained from overriding “the democratic process” because “democracy” tends to be their political ideal. Originalism tends to hold “majority will”, another phrase for “social convention”, as a sort of political-philosophical axiom, with no other ethical or political concepts underlying it:
“This belief in a jurisprudence of original intention also reflects a deeply rooted commitment to the idea of democracy. The Constitution represents the consent of the governed to the structures and powers of the government. The Constitution is the fundamental will of the people; that is why it is the fundamental law. To allow the courts to govern simply by what it views at the time as fair and decent is a scheme of government no longer popular; the idea of democracy has suffered.”[42]
“A concept of original intent, one that focuses on each specific provision of the Constitution rather than upon generalized values, is essential to prevent courts from invading the proper domain of democratic government.”[43]
“…the question to be decided is not whether the historically focused method is a perfect means of restraining aristocratic judicial Constitution-writing; but whether it is the best means available in an imperfect world. Or indeed, even more narrowly than that: whether it is demonstrably much better than what JUSTICE STEVENS proposes. I think it beyond all serious dispute that it is much less subjective, and intrudes much less upon the democratic process. It is less subjective because it depends upon a body of evidence susceptible of reasoned analysis rather than a varety of vague ethico-political First Principles whose combined conclusion can be found to point in any direction the judges favor…What is more, his [Justice Steven’s] approach would not eliminate, but multiply, the hard questions courts must confront, since he would not replace history with moral philosophy, but would have courts consider both…And the Court’s approach [which is Scalia’s approach in this case] intrudes less upon the democratic process because the rights it acknowledges are those established by a constitutional history formed by democratic decisions; and the rights it fails to acknowledge are left to be democratically adopted or rejected by the people, with the assurance that their decision is not subject to judicial revision…”[44]
In essence, the above passages by noted originalist jurists all reflect the idea that originalism is the method of Constitutional interpretation most consistent with the concept of “democracy” or “majorty will”. An originalist judge will only strike down legislation if it can be shown that the legislation violates “majority will”, and the only way that can be shown is if it contradicts an express clause of the Constitution. To think about it another way, the originalist believes that the Constitution, as originally enacted, represents the primary will of the people. The originalist recognizes that the Constitution was enacted by people long dead, but to him, the fact that the currently living have the power to amend the Constitution -and choose not to- means that its provisions still represents current majority will. Since the current majority could amend the Constitution, the originalist judge can safely assume that if they haven’t, then the majority does not recognize such a right.
This emphasis on the ability of the current majority to amend the Constitution to place new rights in it is why the originalist, for instance, would reject the idea that the Constitution enforces a right to an abortion. The originalist notes that there is no express provision in the Constitution granting a “right to privacy”, much less a derivative right to an abortion, as the courts have found. The originalist scoffs at the notion of judges finding “penumbras and emanations” in the Constitution, since, to his mind, the majority arbitrarily determines the scope and nature of rights in the first place, and the majority has chosen not to amend the Constitution to place a right to an abortion in the Constitution, which it could easily do if that was what it wanted.
Some will counter this originalist view by noting that judges, indirectly, are also the agents of majority will, since they are appointed by the President and confirmed by the Senate, both of which are ultimately elected by the people. The originalist does not deny this. He believes that both the legislature and judges should represent the majority will in their actions but, the originalist regards the legislature as being more likelyto represent the current views of the majority. This is because judges are appointed for life, while Congressmen and the President are constantly subject to election, and therefore represent the current views of the people on a matter. Representatives in the legislature are “directly appointed”, and are constantly subject to “dismissal” by the people via the electoral process. Therefore, the originalist reasons, since Congress and the President are more likely to represent the views of “the people”, judges should only override the decisions of Congress and the President when there is an express term in the Constitution forbidding the legislation. Furthermore, those express terms in the Constitution must be interpreted in accordance with its “original public meaning” when adopted, because the judge must assume that the current political majority would amend the Constitution if they wanted that term to mean something else, or if they wanted to enshrine new rights in the Constitution: “The most accurate spokesman for the people of each generation are the legislators that those people elect to represent them.”[45]
The originalist adopts a hierarchy with regard to Constitutional interpretation: the Constitution, as understood by the ratifiers, is supreme, because if the majority alive today didn’t agree with it, they would amend it. The legislature is then of penultimate importance –with only the Constitution’s express terms, interpreted through their “original public meaning”, limiting its power. Judges should be given the narrowest latitude because they are the farthest away from majority will. Is there some other method of interpreting the Constitution’s terms that does not rely on the arbitrary whim of judges or the arbitrary whim of majorities? Not according to Antonin Scalia. The opinion he penned in the Heller decision makes his position clear: “JUSTICE STEVENS abhors a system in which ‘majorities or powerful interest groups always get their way,’ post, at 56, but replaces it with a system in which unelected and life tenured judges always get their way.”[46]
For Scalia, there can be no reference to the facts of reality, and man’s choice to live, in order to determine what Constitutional provisions mean. It is either the whim of the majority of voters or the whim of judges, because all concepts are nothing more than a subjective human decision that serves no purpose. Human beings arbitrarily select certain characteristics to serve as the basis for a classification, and they agree to apply the same term to any concretes that happen to exhibit these “essentials”.[47]
Unfortunately, originalists do not appear to believe that the Constitution “means what it says” because most originalists probably believe that concepts have no other basis than arbitrary human convention, which they call “majority rule” or “democracy”. In reality, concepts are the products of the human mind, but if they are to be considered “valid”, then they refer to things in reality, and serve the purpose of human survival. Legal concepts like “freedom of speech” and “due process of law” serve specific purposes, and describe certain fundamental truths about man and his relationship to the universe, if he wants to live. As the fundamental charter delegating each individual’s right to the retaliatory use of physical force to a central authority, a written constitution cannot be properly interpreted without a proper epistemology, which, in turn, requires an understanding of the ultimate purpose of concepts, which is the choice to live.
*********************************
[1]Dan Lacy, The Meaning of the American Revolution, Chapter 1, “The Eighteenth Century World” and Chapter 11, “The Federal Solution”. New York: Mentor Books (1964).
[2]Id.
[3] District of Columbia v. Heller, 554 U.S. 570 (2008)
[4]Randy Barnet, “News Flash: The Constitution Means What It Says.” http://www.cato.org/publications/commentary/news-flash-constitution-means-what-it-says
[5] M. Mbugua, “Justice Scalia says ’originalism’ protects American liberty.” http://www.udel.edu/PR/UDaily/2007/apr/scalia043007.html
[6] J. Senior “In Conversation: Antonin Scalia.” http://nymag.com/news/features/antonin-scalia-2013-10/
[7]Merriam-Webster, Merriam-Webster’s Collegiate Dictionary, 11th Edition (Kindle ed.), Merriam-Webster, Inc. (2009).
[8]E.C. Moore, American Pragmatism: Peirce, James, and Dewey. New York: Columbia University Press (1961), quoting DeWulf, M. Catholic Encyclopedia, XI, “Nominalism, Realism and Conceptualism”(1909).
[9]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., “Forward to the First Edition”. New York:Meridian (1990).
[10]E.C. Moore, American Pragmatism: Peirce, James, and Dewey, Chapter 2, “Theory of Knowledge”. New York: Columbia University Press (1961).
[11]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., “Forward to the First Edition”. New York:Meridian (1990).
[12]E.C. Moore, American Pragmatism: Peirce, James, and Dewey, Chapter 2, “Theory of Knowledge”. New York: Columbia University Press (1961).
[13]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., “Forward to the First Edition”. New York:Meridian (1990).
[14]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 5. New York:Meridian (1990).
[15]Id.
[16]Id.
[17]Ayn Rand, The Virtue of Selfishness “The Objectivist Ethics.” New York: Signet Penguin Books (1961).
[18]Id.
[19]Id.
[20]This will be, at best, a brief sketch of my best understanding of some of the key concepts set forth in Introduction to Objectivist Epistemology, and the reader should consult that book for a better and definitive presentation of Rand’s position on the matter. See: Ayn Rand, Introduction to Objectivist Epistemology 2nd Ed. New York: Meridian (1990).
[21]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 1: Cognition and Measurement. New York:Meridian (1990).
[22]Id.
[23]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[24] Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 1: “Cognition and Measurement”. New York:Meridian (1990).
[25]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[26]Id.
[27]Id.
[28]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[29]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[30]Ayn Rand Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[31]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 1, “Cognition and Measurement”. New York:Meridian (1990).
[32]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[33]Id.
[34]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[35]It is also seems possible that someone, given their own particular observations and life-purposes might conceptualize wolves, dogs, and coyotes together as one concept initially, and then subdivide later as the need arose. Rand discusses “borderline cases” in Chapter 7 of Introduction to Objectivist Epistemology.
[36]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[37]Id.
[38]Antonin Scalia and Amy Gutmann, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws” in A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law (Kindle Ed.) Princeton University Press (1998).
[39]Leonard Peikoff, “The Analytic Synthetic Dichotomy.” In: Rand, A. Introduction to Objectivist Epistemology, 2nd Ed.” New York:Meridian (1990).
[40] Id.
[41]Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts, “Preface”. St. Paul: Thompson/West Publishing (2010).
[42]“Speech Before the American Bar Association”, Washington, D.C., July 9, 1985, Attorney General Edwin Meese, III. In: Antonin Scalia, Originalism: A Quarter-Century of Debate (Kindle Ed.) Perseus Books Group (2007).
[43] “Speech at the University of San Diego Law School” November 18, 1985, Judge Robert H. Bork. In: Antonin Scalia, Originalism: A Quarter-Century of Debate (Kindle Ed.) Perseus Books Group (2007).
[44] McDonald v. Chicago, 561 US 3025 (2010), emphasis added.
[45] Section 70, “The false notion that the Living Constitution is an exception to the rule that legal texts must be given the meaning they bore when adopted”. In: Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts, St. Paul: Thompson/West Publishing (2010).
[46] McDonald v. Chicago, 561 US 3025 (2010).
[47]Leonard Peikoff, “The Analytic Synthetic Dichotomy.” In: Rand, A. Introduction to Objectivist Epistemology, 2nd Ed. New York: Meridian (1990).
Frontline’s “United States of Secrets”
Last night I watched this 2-part special on Frontline. Overall, I thought it was a decent presentation on an important topic. I somewhat question one of the premises of part 2, “Privacy Lost”. In that episode, they basically said that since Google uses an automatic system to scan your emails for keywords and then present advertisements to you automatically -without any person ever actually knowing the content of your email- then that opened the door for the government to scan your email without a warrant, because courts wouldn’t be able to make the distinction.
But, to me, this is like saying: because I allow a maintenance man into my apartment to repair something, then I have somehow given permission to the police to enter my apartment at any time and search it from top to to bottom. You should be able to agree by contract to allow someone to have access to something that is private without it meaning that you have granted permission to everyone else in the world to view it. I think you can also grant someone access to something with the understanding that they are to keep knowledge of that thing confidential, absent a warrant or subpoena issued by a court.
http://www.pbs.org/wgbh/pages/frontline/united-states-of-secrets/
We Don’t Need Gun Control We Need a Philosophy of Individual Rights
France has extensive gun control laws. The civilian ownership of most semi-automatic firearms, handguns, and automatic firearms is prohibited. http://www.gunpolicy.org/firearms/region/france Despite this, a Muslim Jihadist was able to kill three people and wound one with an AK-47. http://www.bloomberg.com/news/2014-06-01/jewish-museum-murder-suspect-arrested-in-france-hollande-says.html
Mass shootings like this have nothing to do with the ease or difficulty of obtaining such weapons, as this killing in Belgium demonstrates, and everything to do with the existence of societies filled with people who no longer take personal responsibility for their own wellbeing and for the wellbeing of their loved ones. It is a result of a Western Culture of Individualism that is so far in decline that people join various cults and groups that advocate the subordination of individual lives and happiness to a god or a tribal group. It is a result of people who no longer use their own minds to search for the truth, but instead depend on some collective or religious authority to tell them what is right and wrong. It is a result of schools, journalists, and politicians that encourage envy and hatred of others by claiming that there is something wrong with those who do choose to pursue their individual, secular happiness in a free market system.
If too many people reject individualism and their own secular happiness in favor of some sort of collective ethnic group or afterlife, then they will violently turn on those that are not of their “tribe” or don’t worship their god, and we will see a relapse to the sort of perpetual warfare that hasn’t been seen in Europe since the Middle Ages. If too many people listen to left-leaning politicians and their politics of envy, then more mentally unstable people will find a rationalization for indulging their own feelings of envy and hatred of others with violence -such as the 2007 Virginia Tech mass-murderer who espoused his desire to kill “rich kids” in his suicide note.
The Western World doesn’t need gun control, it needs to rediscover a philosophy that advocates the pursuit of individual happiness in this life, and reason as the cardinal means of achieving that happiness. It needs governments that respect and protect individual rights to life, liberty, and the pursuit of happiness.
Greg Abbott Is Opposed To the Second Amendment
Greg Abbott: No friend of the Second amendment
“The state of Texas, arguing against the challenge, noted that three-quarters of the states have laws requiring a person to be at least 21 to get a license to carry a gun. The state’s attorney general, Greg Abbott, was in the uncomfortable position of defending the law…”
http://www.nbcnews.com/news/crime-courts/court-passes-challenges-restricting-handguns-young-adults-n37196
Legal Paternalism
Few people seem prepared to say that they are in favor of totalitarian ideologies like Communism or Fascism today. Most people are typically in favor of “some controls”, or “some limitations on freedom”. There can be different reasons why someone advocates a “middle of the road approach” when it comes to the choice between a purely free society and totalitarianism. One reason that I have heard repeatedly in response to my advocacy of freedom in the economic and personal realms is that what I believe is “overly idealistic” and that it will not “work” because not everyone is as rational as I am. In essence, the allegation is that a capitalistic, free society is impossible because there are people who need to be “protected from themselves”.
The first thing to note about this critique of capitalism is that it assumes that a proponent of capitalism is primarily concerned with the welfare of others, rather than his own rational self-interest. If the proponent of capitalism is also an egoist, then his primary concern is his own welfare. However, a genuine egoist can be concerned with the welfare of others to the extent that living in a free social environment promotes his own self-interest. The more other people act in their own rational self-interests, the better it is for the rational egoist. It means there are more people who work and produce, which increases opportunities for trade and the gaining of new knowledge.
It is also clear there are currently people who are not 100% rational in all situations, and the rational egoist has selfish reasons for wanting them to be more rational. However, laws aimed at “protecting people from themselves” do not promote rational behavior by the people living under such laws. In fact, such laws tend to discourage rational thinking and action in the general population, thereby creating a vicious cycle in which such laws discourage rational thought, thereby creating the impression that more laws are necessary. The end result of this would have to be either: the original restrictions are discarded, or eventual totalitarianism.
What does it mean for a law to be aimed at “protecting people from themselves”? As mentioned, some adults are not completely rational. This means that they do not consistently recognize or act on what is in their self-interest. There are people who continue to inject heroin despite the fact that it does not serve their long-term self-interest. There are people who stay in abusive relationships. There are people who purchase bogus cure-alls from “snake-oil salesmen”, even though they have no rational basis for believing that the product works. There are people who go to palm-readers and fortunetellers, and make major life decisions based on the word of con artists. All of these actions are typically going to be irrational. Why are all of these actions considered “irrational”?
The previous examples all involve actions that do not serve a particular goal or purpose. The heroin addict continues to use, despite the fact that his actions harm his health. His action is not considered “rational” because it does not serve the end of good health. The people who purchase bogus cure-alls from the snake-oil salesman want good health, but the means they have chosen do not serve that goal. So, the money and time that they have spent are wasted. The people who go to fortunetellers are wasting their money since no one can predict the future by means of some sort of mystic insight. No such mystic insight exists. The goal, good decisions about what course of action they should take, is not served by the means they have chosen. They would be better served by observing the facts for themselves, deciding what their goals are and how best to achieve them in light of the facts, and then making a decision based on those evaluations. Rationality, which is a proper exercise of the mind, involves evaluating the facts in order to determine how best to serve a particular goal or purpose. It is in reference to a goal or purpose that certain actions are considered “rational”, and others are not.
A high school student who wants to get into college is considered “rational” if he studies hard and goes to class. A high school student who wants to go to college, but spends every night at parties, and never attends class would generally be considered, other things equal, “irrational”. With enough examples of “rational” and “irrational” actions by people, it quickly becomes apparent that “rationality” is that which serves the end of promoting the actor’s life and wellbeing. Actions are judged “rational” or “irrational” to the extent that they serve that ultimate objective. Rationality is not primarily a “quality” that some people magically have while others don’t, but a choice to actively used one’s mind to serve certain purposes and achieve certain goals. Rationality is a mental state that must be cultivated by focusing one’s mind, objectively appraising the facts, and thinking about how best to achieve a goal in light of the facts.
A few clarifications about rationality should be noted before going on. “Rationality” is not the same thing as one’s degree or level of knowledge. A person with a minimal education can be completely rational, if they use the knowledge that they have available to them to think about how best to achieve their long-term survival, and act on that knowledge. To the extent that a rational person is ignorant about an important subject, he will attempt to gain the knowledge he needs to live successfully. “Rationality” is also not the same thing as “intelligence”. Intelligence is the speed or ease with which one is able to think, not whether one choses to think. The fact that one is rational also does not guarantee long-term survival, no matter what. Factors beyond one’s control can cause failure despite rationality. Rationality is a necessary, but not a sufficient, condition of long-term success. Most of the time, a rational person will succeed, but that doesn’t mean he can’t be randomly struck by lightning or a tornado and killed, despite his best efforts to avoid it.
It would also be virtually impossible to be totally irrational, since it would likely lead to instantaneous death. People who are beyond a certain threshold of irrationality are typically referred to as “insane”, and are usually dependent on the charity of others, or the state, to be kept alive. Some people are also irrational in some areas of their lives, but they are able to “compartmentalize” their irrationality, at least in the short term. People who seek guidance from fortune tellers may have jobs where they generally work hard, and use their minds, and they only seek the advice of fortune tellers regarding their personal relationships. In their work lives, they have a goal of career success, and they use means that tend to achieve that goal, but in their personal lives, they are dependent on the word of a mystic, and that dependence will not tend towards long-term success in that area of their lives.
It is also important to remember that when it comes to thinking, your mind is like a muscle. The more you exercise it, the better you get at it. There is probably a strong connection between rationality and intelligence for this reason. The more you think logically and rationally, the more you develop a habit of doing so. Similarly, the more you choose to be mentally lazy, or are otherwise discouraged from thinking, the more difficult it is to exercise your thinking faculties in the future.
In philosophy of law, the notion of protecting people from themselves is commonly referred to as “legal paternalism”. Most actual statutes have numerous, possibly conflicting, justifications. Legal paternalism may not be the only rationale for a particular law, but one category typically justified on the grounds of legal paternalism are “consumer protection” statutes. These statutes will restrict freedom of contract in some manner on the grounds that the consumer is too irrational to be left free to decide for himself. In law, a “contract” is an agreement between two or more people to exchange a value for another value. The values involved in a contract are generally either material goods or some sort of service used in the production of goods. There is usually a time element involved in a contract, where one party may provide a good or service prior to the other party providing what they have promised in exchange. Consumer protection laws include laws that restrict the sale of medical drugs that have not been approved by a government organization as safe or effective. In the United States, the government organization that approves drugs is the Food and Drug Administration.
The consumption of most medical drugs involves a certain degree of risk. Even a drug that is approved by the FDA may have unknown side effects for certain people. Certain drugs are also safe for some people, but are unsafe when taken by other people, in other situations. In general, the concept of “safety” is nothing more than an acceptable degree of risk in relation to the rewards and expenses involved, because every action one takes involves a certain degree of risk. Legal paternalism in the area of drugs is the attitude that some people are not rational enough to make a decision about the risks of a particular drug. If left free to do so, some people might take drugs that would kill or seriously injure them, or at least spend money on drugs that any reasonable person would know to be ineffective. Since all drugs involve risk, proponents of legal paternalism are saying some people would refuse to weigh the risks and benefits of a particular drug, and make a rational decision about whether to take it. The Drug Enforcement Agency also occasionally justifies its activities on the grounds of legal paternalism: “The DEA represents the unspoken interests of tens of thousands of victims harmed or killed each year by prescription drug abuse.” (Letter to the Editor, Wall Street Journal, April 1, 2012, by Peter Bensinger, who served as administrator of the U.S. Drug Enforcement Administration from 1976-1981, and Robert L. DuPont, M.D., who was the first director of the National Institute on Drug Abuse from 1973-1978)
Most advocates of legal paternalism in the area of drugs will combine their argument that “most people are too irrational” with the argument that “most people are too ignorant”. They fail to make a distinction between irrationality on the one hand, and a mere lack of knowledge on the other. In other words, proponents of drug-approval laws might also say that most people lack the knowledge to make a decision on which drugs to take. It is true that most people do not lack the knowledge to know which drugs to take when they have a medical condition. Most medical decisions are made with the assistance of expert legal advice, such as a doctor. However, if there truly is a lack of knowledge on the part of the general public about this issue, then private certification companies could certify certain drugs as safe and effective. People with insufficient knowledge could then base their decision on which drugs to take on whether a certification company with a good reputation had approved the drug. At its best, all the FDA does is certify that certain drugs are safe and effective. The staff at the FDA are, in the best case, appointed by members of Congress who have no medical backgrounds themselves. The members of Congress also rely on the medical reputation of FDA personnel when deciding to appoint them. Since members of Congress are “appointed” by the voting public, the FDA represents, in the best case, nothing more than an organization that most people in the voting population regard as reputable when it comes to designating certain drugs as safe and effective. (I say “in the best case” because most political appointments usually involve “political pull” and personal friendships, rather than which appointee is the best person for the job.) Since the FDA is, at best, based on nothing more than reputation in the medical community, there is no reason why private companies could not perform this certification function to solve the problem of lack of knowledge by the general public.
This leaves advocates of legal paternalism with the “people are irrational” argument, since the “people are ignorant” argument can be solved more effectively through a voluntary free market system. However, governmental force reduces the incentive to think about which drugs consumers should take, since their choices have been reduced to the government-approved drugs. The benefit of thinking and learning about whether one should take drugs that haven’t been approved by the FDA is greatly reduced, since even if one comes to the conclusion that such drugs are best for a particular situation, none of us are free to obtain and use those drugs. As was mentioned, whether a particular drug is right for you turns on your particular circumstances, and certain people may be more willing to take a greater risk, particularly if they have nothing to loose. This has been the case for people with certain types of serious cancer who sued the FDA for refusing to allow them take experimental chemotherapy drugs, even though they had a high probability of dying from cancer anyway. The appeals court in that case said that such people had no right to take the drugs, even though the drugs might save their lives. (“Court Rejects the Right to Use Drugs Being Tested”, New York Times, August 8, 2007) Part of thinking involves making decisions about what level of risk you are prepared to take in order to obtain a goal. The ultimate goal to be obtained by thinking is the maintenance of one’s life. Restrictions on people’s freedom leaves them less able to obtain that goal, and thereby emasculates the need for thought.
It is probably true that if left free to do so, there would be some people who would take drugs that are harmful to their health, or who would spend money on drugs that have no benefit. This happens today, even with prohibition. People have free will, so it is possible that some people will choose not to use their minds on this particular topic, and will suffer the consequences. It is entirely possible that some people could even loose their lives as a result. But, restricting the freedom of the population as a whole in this area just to protect a small number of people from themselves has consequences too. It destroys the need for thought in this area, thereby reducing the incentives in favor of thinking. This in turn means that everyone will be less incentivized to think, and therefore more likely to depend on the state to make choices for them. The few people who choose to be irrational regarding what drugs they take harm primarily themselves. Restricting freedom in this area to protect these people sacrifices the people who do choose to think.
Another area of legal paternalism in the United States, and the rest of the world, is in the area of purchasing stock in corporations on secondary exchange markets like the New York Stock Exchange. Prior to stock being sold on such exchanges, they must be approved by government agencies like the Securities and Exchange Commission. Many of the principles discussed above regarding the FDA apply here too. In both the case of consuming medical drugs and purchasing securities, there is a risk associated with it. The consumer must educate himself regarding the risks and benefits, and then decide whether, for his particular circumstances, the benefits outweigh the risks.
Just as with other statutes, legal paternalism isn’t the only justification for securities and exchange laws. Just as some will argue that they are primarily trying to project the mostly rational public from dishonest drug companies, so too will some people argue that the securities and exchange laws are aimed at protecting rational people from fraudsters. This is not an argument based in legal paternalism, but involves attempting to protect rational people from the bad actions of others. However, fraud was already illegal long before the existence of state and federal securities laws. A fraud involves a lie to exchange, money, goods or services with another, when the goods or services provided to the victim are not as the fraudster claimed. The fraudster holds the other person’s valuables and refuses to give them back, or he holds the other person’s valuables sufficiently long enough to prevent them from using them for other purposes. An example of fraud in the area of securities and exchange would be if a person sells stock in a corporation that he claims to be solvent and profitable when he knows for a fact that the corporation is actually bankrupt. A “pump and dump” scheme is likely fraudulent because the seller of the stock is falsely claiming that the company is more profitable than it actually is, or that it will become more profitable than the facts would suggest –even taking into account the possibility of risk. All fraud should be illegal and that is all the “consumer protection” that is needed to protect rational people.
Just because fraud is prevented under capitalism does not mean that people who choose to invest will never loose their money. All investing, by its very nature, is risky. Much, if not all, of the profit from investing is associated with the fact that you are deferring consumption in favor of the production of future goods or services. It is possible, due to factors beyond anyone’s control or knowledge at the time, that an investment will not pay off, and the deferred consumption will be wasted. If someone invests in a farm, it is possible that there will be a massive hurricane that destroys the crops. If someone invests in a company with a new product, it is possible that consumers will prefer some other company’s product better, and that the company will not succeed. Risk is not just inherent in investing. Risk is a fact of life, and it is impossible to live entirely risk-free. So long as the seller of a stock does not make claims about the stock that he knows to be false, or actively conceal the facts from a buyer, the legal principle of caveat emptor (“buyer beware”) should apply.
By adopting the legal principle of caveat emptor, people are encouraged to think carefully about the risks associated with investing, and not to invest money that they can’t afford to risk. Caveat emptor encourages thought in the area of investing and money. If the government restricts certain types of investments as “too risky for any rational person to make”, then it is discouraging people from thinking about what investments they should make (if any). It discourages people from learning basic economics and business principles, and from thinking about which investments are sound. It also discourages people from thinking about how much risk makes sense for them, given their particular situation. Furthermore, it discourages those who do want to think extensively about investing, and are willing to take extra risks in exchange for greater potential rewards, from doing so.
This principle -that legal paternalism in the realm of economics and trade tends to discourage thought, and thereby create the apparent need for more legal paternalism- has applicability outside of areas besides economics and trade. The proponents of legal restrictions on “pornography” and “obscenity” often couch their arguments in terms of legal paternalism. This justification for restrictions on “obscenity” goes back at least a hundred years. In 1868, a British court promulgated what has become known as the “Hicklin rule”:
“I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. Now, with regard to this work, it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character...” (Regina v. Hicklin, L.R. 3 Q.B. 360 (1868). Court of the Queen’s Bench.)
In that case, the court noted that even adults (“…persons of more advanced years…”) could have their minds “deprived and corrupted” by certain types of material. (In the Hicklin case, it was a restriction on certain material meant to mock the Catholic Church.) This is essentially an argument based in legal paternalism, since the aim of the restriction is not to protect “society” or “others”, but to protect the people who would otherwise choose to read such material.
In 20th Century America, legal paternalism has also been used by the courts as one of the justifications for legal restrictions against certain types of “obscenity”. In 1973, the United States Supreme Court decided Paris Adult Theater I v. Slaton. The case involved the State of Georgia prohibiting two “adult” movie theaters from showing films that depicted sexual conduct. While legal paternalism was not the only reason the Court upheld the prohibition, the opinion in that case was at least partially based in the notion of legal paternalism:
“If we accept the unprovable assumption that a complete education requires the reading of certain books…and the well nigh universal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a state legislature may not act on the corollary assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior?” (Paris Adult Theater I v. Slaton, 413 U.S. 49 (1973).)
In other words, the Court said that since it is widely assumed that encouraging the reading of Shakespeare and other classic works of literature makes one a better person, then it is just as easy to believe that viewing films with strong sexual content would lead a person’s mind to be, in some sense, damaged or “debased” by the experience. The Court went on to note that just as the states have “blue sky laws”, which prevent the “gullible” from making bad investments, “for their own good”, so too can the states have laws that prohibit obscenity in order to protect the “weak” and the “gullible”:
“Most exercises of individual free choice—those in politics, religion, and expression of ideas—are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. We have just noted, for example, that neither the First Amendment nor ‘free will’ precludes States from having ‘blue sky’ laws to regulate what sellers of securities may write or publish about their wares…Such laws are to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition.” (Id.)
In other words, the Court said that laws prohibiting obscenity are necessary, at least in part, to “protect people from themselves”, because such works can “debase” or “corrupt” their minds. Both the Hicklin case and Paris Adult Theater share a common attitude. It is the idea that certain material, when read or viewed, will have a tendency to cause some sort of mental or psychological injury to the viewer. Although some people seem to have sufficient “will power” to overcome the “corrupting influence” of that material, other people do not seem to have the “will power”, and it will damage their minds.
There does seem to be some evidence that certain types of books, movies, or magazines can have a negative impact on some people’s minds and wellbeing. Some people do seem to become “desensitized” by viewing excessive amounts hardcore pornography. They become incapable of having a normal sex life. There are articles that report on some men having become “addicted to pornography” to such an extent that they became temporarily impotent with actual women. “Lots of guys, 20s or so, can’t get it up anymore with a real girl, and they all relate having a serious porn/masturbation habit.” ( Psychology Today, “Porn-Induced Sexual Dysfunction Is a Growing Problem” Published on July 11, 2011 by Marnia Robinson http://www.psychologytoday.com/blog/cupids-poisoned-arrow/201107/porn-induced-sexual-dysfunction-is-growing-problem) This suggests that viewing excessive amounts of certain sexually explicit material may cause psychological problems, for some people, in some specific contexts. (The article goes on to say that the “cure” is to abstain from viewing pornography for a while, and a normal sex drive will eventually return, so any damage done is probably not permanent.) However, there are also numerous people who may occasionally read a “Playboy” magazine (and not just the articles), or even go to a topless bar for a bachelor party, and they do not seem to suffer any long-term consequences. They can enjoy the experience occasionally, without loosing their sexual desire for their girlfriends or wives. Most people would also be unlikely to deny that a “steamy” love scene in a mainstream R-rated movie or novel can be great, and that if the scene were removed, the plot would be weakened.
The fact that there are some movies that have gratuitous sex or violence and therefore are considered “obscene”, while other works of art are considered to have “legitimate adult material” in them points to another common question that arises when the government attempts to ban “obscene” matter: What is and isn’t “obscene”? Even some of the proponents of banning “obscene” matter seem to recognize that some sexual content in art is legitimate and should not be banned:
“Pornography is not objectionable simply because it arouses sexual desire or lust or prurience in the mind of the reader or spectator; that is a silly Victorian notion. A great many nonpornographic works –including some parts of the Bible –excite sexual desire very successfully. What is distinctive about pornography is that, in the words of D.H. Lawrence, it attempts to ‘do dirt on [sex]…[It is an] insult to a vital human relationship.’” (Morality, Harm, and the Law, edited by Gerald Dworkin, Westview Press, Inc. 1994, Chapter 4 Liberalism: Objections and Defenses, “Pornography, Obscenity, and the Case for Censorship”, by Irving Kristol, originally appearing in New York Times Magazine, March 28, 1971, pp. 246-247)
Rather, obscenity should be censored because it:
“…differs from erotic art in that its whole purpose is to treat human beings obscenely, to deprive human beings of their specifically human dimension. That is what obscenity is all about….To quote Susan Sontag: ‘What pornographic literature does is precisely to drive a wedge between one’s existence as a full human being and one’s existence as a sexual being –while in ordinary life a healthy person is one who prevents such a gap from opening up.’” (Id.)
“Obscene material” in the United States is generally considered to include graphic, detailed depictions of sexual intercourse. (“Hardcore pornography”) But, it is very difficult, even for a rational person, to determine when the sex scene in a work of art is “legitimate” and when it is not. It takes great mental effort to make such a judgment regarding a work of art, and reasonable minds can easily disagree on such a complex, fact-specific topic. One Supreme Court Justice went so far as to say that he couldn’t define what was and wasn’t “hard core pornography”, but he knew it when he saw it. (Concurrence of Justice Stewart, Jacobellis v. Ohio, 378 U.S. 184 (1964)). It would appear that one would first need to understand something about why art is important, and what “art” consists of, which is no small task in and of itself. In literature and movies, it would then appear that one must weigh the scene in relation to the overall plot, the characterization, and the theme of the work before determining if the sex, or the violence, is gratuitous or attempts to “do dirt on” sex. The point is not just that there is no general consensus on what is “obscene”, and therefore the government shouldn’t get involved -although that is probably a correct observation. The point is that it takes mental effort and thinking to make this determination, and it is not easy for even a rational person to make. It requires the exercise of one’s rational faculties to judge a work of art as “good” or “bad”. By leaving people free to decide for themselves what content in art is appropriate, they are provided with the opportunity to exercise their rational judgment and discrimination in the realm of art. Censorship of “obscenity”, assuming that a universally accepted definition of what that means could be determined, would deprive people of the opportunity to exercise their minds. Since all thought involves the mental formation and manipulation of ideas developed from observations and inferences derived from reality, censorship in the realm of ideas probably destroys thinking in a society faster than any economic regulation ever could. Economic regulation may be the road to serfdom, but censorship is the expressway to totalitarianism.
Eventually, the restrictions on freedom that made thinking irrelevant must be lifted, or more will follow. Will the censorship of “just a few hardcore porno movies”, or “just a few economic regulations” lead to immediate totalitarianism? No, but it discourages thinking in the realm of ideas, and that makes the people a little less capable of thinking for themselves, which creates the apparent need for more restrictions on the freedom of a growing number of individuals who are increasingly incapable of thinking for themselves and who seem to constantly make poor choices. For some people, especially those who have already become accustomed to letting the government do most of their thinking for them, the prospect of more freedom will seem daunting and frightening at first. There are now several generations of people who are dependent on the state, but the alternative to the dawn of complete freedom is the eventual long night of totalitarianism.
The “Assault Weapon” Ban
“…no reason civilians need to own assault weapons and high-capacity magazines…” http://abcnews.go.com/US/wireStory/us-judge-bring-back-federal-assault-weapons-ban-18040037#.UNc95onjk1c
1) The “assault weapons” ban basically banned certain cosmetic features on some semi-automatic firearms (guns that fire one bullet for every pull of the trigger), that had nothing to do with the function of the weapon.
2) The only major change in the functionality of semi-automatic weapons that the assault weapons ban affected was the limitation of the magazine to 10 rounds. Does anyone really think that limiting magazine capacity to 10 rounds will stop someone from going on a shooting spree?
3) The only way such a magazine capacity limitation might affect a shooting spree is to require the shooter to carry multiple guns or multiple magazines. Is Diane Feinstein seriously saying that her “solution” is for civilians at the scene of a shooting spree to tackle a gunman while he is reloading his 10-round magazine? If civilians are going to be asked by Diane Feinstein to take personal responsibility for their own self-defense (a worthy goal), then why does she want to make it more difficult for civilians to own guns?
4) High capacity magazines do have a civilian use: In the Los Angeles riots in the early 1990’s, civilian business owners used AK-47’s and other semi-automatic firearms to defend themselves and their property from large numbers of rioters who wanted to harm them and destroy their life’s work. These civilian business owners were abandoned by the police and the local authorities, and they took personal responsibility for their own lives and the security of their community.