Posts tagged Cass Sunstein
Needing Doesn’t Justify Stealing
Tibor R. Machan
What one needs depends on one’s goals. And much of the time what one needs to pursue various goals is produced by other people, including some rather important stuff or services. Nonetheless, among genuine free men and women whatever it is that one needs may only be obtained voluntarily, not by coercion. Even if the need is great.
Yes, now and then one’s needs can be urgent and great, as when one must get the services of a surgeon lest one lose the use of a limb. Yet, one isn’t by any stretch of the imagination authorized, morally, and should not be legally, to conscript those who can provide the necessary service. That would make slaves of those professionals! And no one is justified in enslaving anyone, however urgent one’s needs may be.
One would think these are elementary matters in a society that has experienced slavery or involuntary servitude and finally abolished it. But no. I recently objected to the first class mail monopoly that the US Postal Service enjoys, as a Constitutional grant in fact, and someone commented that people often need first class mail, so surely it must be provided to them.
Doesn’t follow at all. We often need things quite badly that others can supply but they and their labor doesn’t belong to us so we must obtain them voluntarily. And that has proven to be a very workable arrangement, much more so than have coercive alternatives. Why then do people often support the idea that it is OK to conscript other people’s work?
Maybe one reason is the regrettable precedent of taxation. For a while even in the USA, a supposedly shining example of a polity of human liberty, the military draft was legally accepted, tolerated. And of course for centuries on end coercion was routinely used by the powerful to obtain what the less powerful produced. Today it is quite common to have major political and academic figures chiming in favoring robbing the rich because, well, they have what others want from them. The idea that it belongs to them and thus must be obtained without resort to the violation of their basic rights doesn’t even come up. It’s just wished away, silently, as if it should be forgotten in the face of the needs of others. But then, of course, at one time these needs were used to justify chattel slavery and servitude to the ruler. It is not an accident that the Southern social theorist George Fitzhugh considered and favored slavery as a quintessentially socialist institution.
But just because an older generation got wise about these matters it doesn’t follow that we inherited this wisdom. Many of us are perfectly willing to forget what we should have learned from history, including that no matter how precious our goals may be, conscripting others to serve them is morally and should be legally prohibited. So the president of the USA, shamefully, is advocating robbing the rich so as to help him carry on with public policies that he prefers but cannot find sufficient support for.
At this point, of course, it isn’t very simple to sell the public on the idea that the rich must become slaves, so various theories are rolled out that maintain that the rich owe it to us, so taking it from them is just fine. That is the thesis candidate Elizabeth Warren was airing when she was campaigning for a Massachusetts Senate seat. And she wasn’t the only one. Such thinkers as NYU professors Thomas Nagel and Liam Murphy, Harvard Law School’s Cass Sunstein, and others have been making some amazingly spurious arguments that support the notion that all wealth really belongs to the government instead of individual citizens. Sunstein has also been peddling the incredible idea that all rights are grants from government, an idea directly opposed to the American tradition of individual rights (developed mainly by John Locke). Nagel and Murphy wrote a little volume The Myth of Ownership, for (of course) Oxford University Press back in 2002, which would, if it had any merit, clear the way to the government taking from us whatever it wants.
You need to realize, though, that government is nothing more than some people who are hired by others for specific, limited purposes; indeed their proper purpose is to protect or secure the rights of the citizenry, their natural rights! But that is, sadly, still an unfamiliar idea in many circles that stick to the reactionary notion that you and I and our belongings aren’t really ours but were granted to us provisionally by those other people, the government. How they came to have such authority is of course a complete myth. Let’s get past it already and carry on with the American revolutionary idea that citizens are the sovereigns, not the state.
Review of Tim Sandefur’s The Right to Earn a Living, Economic Freedom and the Law (Washington, D.C., Cato Institute, 2011). $25.95
By Tibor R. Machan
Tim Sandefur’s The Right to Earn a Living is so far as I can judge a flawless, superb discussion of how a proper understanding of American constitutional law implies that in this country everyone has a basic right to earn a living. Although this isn’t my specialty, I am well enough versed to be able to tell that Sandefur has a far better handle on the issue than, say, Cass Sunstein or all those who keep defending the contrary thesis in, say, The New York Review of Books.
I have been following Mr. Sandefur’s career for a while—he has given lectures in my university’s law school, which he also attended after doing his undergraduate studies at Hillsdale College in Michigan. The lectures he has given that I have heard have been excellent–clear and well informed, passionate yet also intellectually well crafted. This to my knowledge is his second book for the same publisher, the Cato Institute, where his Cornerstone of Liberty: Property Rights in 21st Century America came out in 2006.
Although most of this book focuses on the law—and Sandefur explores thoroughly the way the law in America has been influenced by ideas completely alien to the nation’s political-economic tradition (e.g., by that thoroughly misnamed movement, progressivism)—there is an underlying normative thrust to it on which the legal philosophy of the author rests. That normative thrust is Lockean natural rights theory.
As the author makes clear, the right to earn a living is actually implied by the American founders’ reworking of John Locke’s list of natural rights, as per James Madison’s rendering in the Virginia Declaration of Rights where we are told that “all men are by nature equally free and independent, and have certain inherent rights.” These include “the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursing and obtaining happiness and safety.”
I find the book so agreeable that I will now spend just a few paragraphs discussing one possible misunderstanding that could arise from its title and some of what the author says in the spirit of that title. Much of the work is spent on discussing legal, in particular constitutional, topics focused on private property rights. The history of the U. S. Supreme Court’s way of addressing the topic is not a very pretty picture and may even raise the question of what is the use of a written constitution if justices are going to vacillate so drastically in how they read it. Isn’t a written constitution supposed to facilitate stability and predictability in a country’s legal affairs so citizens can make long range decisions?
Let me leave this issue to the likes of Mr. Sandefur, who focus their attention more on jurisprudence than on general political philosophy. I do wish now to address one area of basic political philosophy that some elements of this book leaves unexplored, namely, just how intimate is the connection between earning a living and ownership.
Quite a few people, both now and in the past, defend the right to private property, to individual ownership, based on the idea that whatever one earns—or creates, or makes, or produces—surely is one’s own property and others have no right to it. And up to a point this carries conviction but it doesn’t at all go far enough. The problem is that there is a lot that an individual owns without having earned–made, created, or produced—it. Yet it still is one’s private property and no one is authorized to take it from one. By risking leaving the impression that ownership arises from having earned what one owns, one may be taken to suggest that only if one has earned what one owns can it be legitimately one’s property. And this suggestion will then be exploited by those who would just as soon confiscate from individuals any property they have not earned—such as what they have inherited.
Let’s start with the simple cases. How about one’s second eye that another may well have great use for? Or one’s second kidney? Or indeed one’s heart if one is some kind of no good, lazy loafer and another who’s an ambitious genius with noble aspirations to save the world could make good use of? Then what about what one was given as a gift? Not always earned at all! Or what about what one has found, free and clear, by chance?
There are quite a few political philosophers and theorists, even moralists, whose views imply that if you didn’t earn it, others are entirely free to take it from you. And if what you own is not being put to proper use, then, too, it can be confiscated by the authorities and transferred to someone who is deemed to make wiser use of it. The famous City of New London, CT v. Kelo U. S. Supreme Court case (of July 2005) whereby city bureaucrats confiscated private property from citizens and gave it to others was decided on such spurious grounds. In the famous Harvard University professor John Rawls’ book, A Theory of Justice (Harvard University Press, 1971) the same idea emerges. Because no one actually earns all of his or her assets in life but comes by them through luck or fortunate upbringing, there is nothing objectionable in depriving people of what they are taken to own. After all, as Rawls put it, “The assertions that a man deserves the superior character that enables him to make the effort to cultivate his abilities is … problematic; for his character depends in large part upon fortunate family and social circumstances for which he can claim now credit” (104).
Nothing at all follows about other people having the authority to take from one something one hasn’t come by through hard work, through having actually earned, produced, or made it all. That’s plainly a non-sequitor. Only if one came by something through theft, extortion, robbery, burglary or similar violation of another’s rights is there justification for such taking.
Yes, one way to come to own something is by having produced or earned it—something that is made very clear in Sandefur’s book—but there are others, including having been born with it, having it as part of one’s very identity as the human individual who one happens to be, or having been given it. That’s enough. Others just have no warrant for butting in, however great their goals, be it the will of the people or of wise leaders or anything like that.
Private property rights flow from one’s having an unalienable right to one’s life, a life that is one’s own and no one else’s, not the family’s, not the tribe’s, not the clan’s, nor of the nation or community or some other group of other people who already own exactly what they have a right to, namely, their own lives. Sandefur suggests nothing other than this but still, it is important to make clear that it would be to misunderstand the nature of property rights to suggest that only when one earns property is it in fact one’s property.
So having come by something without having stolen or extorted it from someone is plenty or warrant for owning it. And then, of course, if one has put one’s mind to making good use of something no one else owns, that is also an excellent reason to be deemed its owner. It is also one of the best incentives for productive work.
All the supposed scholarship favoring collective, public, or community ownership results, mostly, in providing some private individuals with free goods—a type of rent seeking—who want to confiscate the property of other private individuals under the illusion or guise that they represent the public or the general will or some fathom entity like that. No, those groups are no more than a group of other people who want what doesn’t belong to them. Mostly they wish to promote the idea through the myth of the superior importance of the greater numbers. But there’s no substance to it—millions of people can all be plain takers, lead by misguided thinkers who just want to come by wealth without having to meet the terms of those who own it.
The right to private property applies not only to owning what one has created—although few of us create something entirely anew, from scratch—but also to what emanates from us, from who we are. So if by total accident I am a good-looking bloke and can cash in on it by getting a paid appearance on the cover of GQ, nobody is justified to take from me of my proceeds, not my neighbor, not the government, no one.
Some defenders of our private property rights are tempted to link ownership rights too intimately to merit but that’s folly for we are not always the owners of things—including our lives and limbs as well as much else we own free and clear—as a matter of merit. It can all still be our property if it isn’t anyone else’s. And whatever we do own others better keep away from unless we permit them to do otherwise. Any system of “laws” that fails to heed this point is, as Mr. Sandefur demonstrates in this excellent volume, ultimately illegitimate.
Society’s Rules Don’t Create Wealth
Tibor R. Machan
In olden days people were forced to labor for the king and his minions in return for being allowed to live within the realm. This kind of extortion finally got tossed over and people’s basic right to their lives became acknowledged–in the political philosophy of John Locke and the Declaration of Independence, for example. You don’t belong to society, to other people. Your life is yours to live as you choose, although, admittedly, you could live it bad or well but not in terms set by others who claim a portion of it.
But this realization that each individual has the right to his or her life got a bit arrested when later thinkers, like Auguste Comte and Karl Marx, argued that your property does belong to everyone else, not you. (In the case of Marx this didn’t quite fit his labor theory of value, but skip that for now.) Among some of today’s most prominently placed intellectuals, such as Professors Cass Sunstein of the Harvard Law School and Thomas Nagel of New York University, private property rights are taken to be nothing but a myth. (As one of Nagel’s co-authored book, The Myth of Ownership, announces, wealth is a collective phenomenon, never mind that some produce hardly any while others make gobs of it!)
Since one’s life is intimately dependent upon property–no way to live without some stuff, to be plain about it–if all property is owned by the public at large, collectively, that pretty much means one’s life is too. So the liberation from serfdom, one of the greatest achievements of classical liberal thinking, is to be undermined, reversed, by the idea that it is after all society that owns our resources, not we individually or corporately (in each others voluntary company). Taxes, then, amount not to a coercive taking but a rightful claim by the government that’s standing in for society as a whole (or so statists love to pretend). Taking private property for public use need not be very carefully justified as the fifth amendment to the U. S. Constitution insists, no. Such taking is really just government’s way of affirming its ownership of everything while generously leaving bits of it for the people to use.
But this is all nonsense and a ruse, to boot. For there is no society as such apart from the people who comprise it. Like my classes at the colleges where I teach–they do not exists as some kind of separate entity, only as a group of individual students with a common purpose. So then when it is argued that in fact society owns all the resources, the cash value of this is that some people who have laid claim to speaking for the rest of us own it all or at least get to use it as they see fit.
One retort to this is that without society’s rules and laws property could not exist. So society must, after all, own the stuff. But this is like claiming that because without the rules of tennis or football or any other game there could not be points scored or touchdowns run, it really isn’t the players who score the points or achieve the touchdowns but the referees! This is complete bunk. The referees, like governments, have a job, namely, to make sure the rules are observed as the people or players go about their tasks. They aren’t’ the ones who carry out those tasks and may not lay a claim to the results, either.
There have always been those who were insistent on lording it over other people, including their lives and property. In ancient times they rationalized this by reference to some alleged special status among us–natural aristocracy, superior race or class, God’s assignments, etc. But then it was discovered and finally driven home in many places that no one has any claim to lording over others, not without their consent (as when members of an orchestra consent to the conductor’s role). But this doesn’t sit too well with those who wish to rule us all. So they are now inventing different reasons, such as their supposed role of speaking for society, which is used by them justify their rule. Let us not fall for this, please.
Revisiting Obama’s Selective Pragmatism
Tibor R. Machan
Some may remember that during the debate about federal government bailouts and stimuli the Obama regime made it very clear that no ideology will be allowed to sway the administration and that what is important is that the government stick to a pragmatic policy, meaning a policy of expediency, one concerned with what works not with what conforms to principles, such as the right to private property or limited governmental powers. As he is quoted to have said, “What the cynics fail to understand is that the ground has shifted beneath them,” Mr. Obama told Americans with what he regards as old-fashioned ideological beliefs, “that the stale political arguments that have consumed us for so long no longer apply. The question we ask today is not whether our government is too big or too small, but whether it works….” That is indeed the calling card of the pragmatist–do whatever works! (In a recent movie by Woody Allen. Whatever Works, the protagonist follows this advice but it isn’t clear how well he comes off doing so!)
Ironically, pragmatism, the quintessentially unprincipled philosophical movement, was born in America, the one country in human history and around the globe most explicitly tied to certain basic principles of community life–e.g., the existence of unalienable, natural human rights, a tradition now widely mimicked (more or less, around the world, not least by many members of the United Nations). Such American thinkers as William James, C. I. Lewis, John Dewey, Oliver Wendell Holmes, Jr., Willard Van Orman Quine, Richard Rorty and, right near the current White House, Harvard Law Professor Cass Sunstein, all professed to be pragmatists. Although their specific positions are not identical, what they share most of all is that they reject the idea of foundations to human thought and action. Anti-foundationalism is a prominent stance they all share, meaning that what people think and do cannot be given some kind of basic grounding in reality or thought or God or anything. Whatever works is all that can be produced in support of what one thinks, does, supports as law and public policy. No principled support for–or opposition to–what we think and do is possible to find, so we need to abandon the myth of foundationalism! Let’s just settle for what pans out in practice.
As many critics of this position have pointed out, it is a non-starter; it cannot be practiced at all since what works is always related to some objective or goal that one aims to achieve and if there are no principles on which to rest such goals, they remain simply a wish list of powerful, influential people, quite arbitrary in the last analysis; most importantly, pragmatism is the foe of a society that aims to establish and maintain justice among its citizens since principles of justice are plainly unknowable so far as pragmatism goes. It is also blatantly offensive–no basic reason can be given for opposition to torture or rape or murder? Give me a break!
In the recent dispute over the building of a Muslim mosque near Ground Zero in New York City, however, President Obama elected to try to take a principled, totally anti-pragmatic, stand when he said that everyone has a right to practice his or her religion, never mind whether it is done wisely or not. As the president said, the right to religious liberty “includes the right to build a place of worship and a community centre on private property in lower Manhattan, in accordance with local laws and ordinances.” He went on to say, “This is America, and our commitment to religious freedom must be unshakable.”
So, suddenly Mr. Obama is one of those old fashioned principled Americans, right? Forgive me if I am skeptical. Pragmatists do not change their colors so easily. Once a pragmatist, pretty much always a pragmatist, so that whether in matters of economic policy, torture, or the right to religious liberty no pragmatist would cite an alleged basic principle in support of what he or she supports. No, what would matter is whether the policy being promoted works.
Accordingly, Mr. Obama must believe that insisting on the rights of Muslims to build a mosque near Ground Zero in New York City and not commenting on the wisdom or propriety of their doing so is indeed what works! But what does it work for?
Well, that is the 64 thousand dollar question. My suggestion is that it works to keep Mr. Obama’s image reasonably respectable by way of its ultimate obscurity. Nothing like rolling out one’s credentials as a sophist, an obfuscator of ideas, so as to make one seem erudite and cool.
Two Insidious Trends in America
Tibor R. Machan
Two powerful intellectual developments are ruining America. One is egalitarianism, the other pragmatism.
The former is an effort at the highest levels of American education, at institutions such as Harvard University and the University of Chicago, for example, to help establish a regime or political system that has as its firm and unrelenting goal to make all people equal in the benefits and burdens they enjoy and shoulder in their lives–economic, educational, medical, psychological, etc. The clarion call of this movement is to demand government mandated fairness for everyone.
The latter, pragmatism, is also being promulgated at some of the most prominent and prestigious institutions of higher education. This is a broad philosophical school of thought, originally forged on American soil by the likes of Charles Peirce, William James, C. I. Lewis, John Dewey, and numerous others, including the most radical member of the school, the later Richard Rorty; it insists that no basic principles can be identified in any area of human concern, not in ethics, not politics, not even metaphysics or epistemology (or theory of knowledge). Instead of finding basic principles on which to rest one’s reasoning and actions–in morality or law, for instance–an attitude of practical expediency is all that human beings can hope for.
“Whatever works,” is the simplified motto of pragmatism but there is a big problem with this, since things work always with respect to some goal and certain goals are clearly not worth pursuing, others are. Pragmatism insists, however, that there is no way to tell which goals are important, which are trivial and which are out and out insidious. That is all a matter of the intuitions of those who are in charge of calling the shots. (Currently, for example, President Obama and his team–most notably Professor Cass Sunstein of the Harvard Law School–proclaim the superior merit of pragmatism and pursue workable approaches to solving problems they feel need solving.)
Both egalitarianism and pragmatism tend to unleash an army of government regulators upon members of society, in the effort to cut everyone down to the same size and achieve goals the leaders believe need to be achieved, respectively. But both of these outlooks are hopeless, futile and must produce confusion and the tyranny of some people over others. As a result, the egalitarian objectives will mostly turn out exactly as George Orwell indicated in his novella, Animal Farm, namely, a group of members of society will be running the show and thus defeat the very idea of equality among human beings. And given how unprincipled conduct also encourages the rise of elites and petty tyrants, pragmatism also produces very bad public policies. Moreover, the pragmatist agenda flies directly in the face of some of the most noble aspects of the American political tradition, namely, the rule of law and the Founders’ declaration of the vital need for basic principles, such as individual human rights within the legal system. (Cass Sunstein explicitly insists that such rights do not exists and the only “rights” you have is what the government grants you!)
What might be put in oppositions to these two clearly dangerous movements so widely embraced by elite public philosophers? A renewed commitment to the American Founders’ idea that human beings all have basic rights–in this respect they are indeed equal–and the most vital public good or purpose is the protection of their basic rights to life, liberty, the pursuit of happiness, etc. Some adjustment will have to be made on the Founders’ ideas but very little. One point to keep in mind is that just because basic principles can indeed be identified in areas such as ethics, law and politics, it doesn’t mean they are going to be timelessly fixed, unalterable. (That is the point of the amendment process)
Unfortunately the education of American students is mostly in the hands of those who embrace both egalitarianism and pragmatism, so it isn’t going to be easy to rekindle the commitment to the Founders’ ideas and ideals. Still, that is the most significant way to counter the drift of the country toward greater and greater government regimentation. Everyone who understands this needs to discover ways to arrest that drift. It is an eternal struggle but worth it.