Posts tagged Obamacare

Obamacare & Involuntary Servitude

Obamacare and Involuntary Servitude

Tibor R. Machan

However much one learns to squirm out of one’s inconsistencies, logic usually bites one in the butt. Of course, strictly speaking logic is the formal system that’s supposed to guide our reasoning process and on its own doesn’t serve much more than that vital, indispensable task. That is why it is usually studied in symbolic form–As and Bs or ps and qs. When one complains that someone is being illogical, it means that he or she isn’t following the guidelines of logic.

In any case, the discussion of President Obama’s federal policy requiring that everyone obtain health insurance has frequently focused on the fact that either an employer or individual would be forced to obtain private health insurance instead of, as Wikipedia points it out, “or in addition to the institution of a national health service of insurance”. And many have suggested that this is a very unusual measure since it mandates specific performance from citizens, contrary to the legal tradition of the country. One may be forced to give up property but never to carry out a task, something that is reminiscent of slavery or involuntary servitude and thus directly in conflict with the idea of a free society.

It has been noted, now and then, that some laws do require specific performance despite all this, such as being forced to prepare tax returns, but this has been dismissed as rather trivial. However, there is a requirement imposed upon nearly every citizen, namely jury duty and complying with subpoenas–which often takes several days, even weeks from one’s life and imposes specific conduct that one must perform. Is this not just like the individual mandate to obtain health insurance–to go out and purchase this service?

In America jury duty has been objected to mainly by libertarians who have a firm conviction that the right to liberty is a natural–and should be a constitutional–right. Thus to coerce someone to serve on a jury in opposition to what he or she chooses to do would be to subject the person to a form of–maybe not Draconian but still significant–involuntary servitude.

Thus, the argument goes, as a matter of consistency the USA is already awash with a type of compulsory individual mandate and those who complain that Obamacare is breaking with a powerful American principle and tradition are wrong. Or, put more precisely, there is strong precedence for doing this so Obamacare isn’t something extraordinary in requiring specific performance from the citizenry.

There is a good case to be made to counter this, however. Both jury duty and complying with a subpoena do demand specific performance from American citizens, yes, but arguably in consequence of a voluntary commitment they have made in choosing to be citizens of the country. Both jury duty and complying with subpoenas are deemed as necessary for the pursuit of justice. And citizenship in a free country has exactly that as its central purpose, namely, to secure justice for everyone.

So if someone has witnessed a crime and is the only one who can provide testimony about it, refusing to do so is arguably going back on the free choice of a citizen of the country committed to securing justice for all. Refusal to serve on a jury might be so construed as well, although in that case the particular individual’s compliance could well be dispensed with. One could obtain the service involved by hiring a fellow citizen to sit on the jury. This is no option in most cases that one is subpoenaed to testify about what one has witnessed.

In any case, when one performs jury duty or testifies in response to a subpoena, it could be construed as fulfilling a implied promise one has made by becoming or being a citizen of a country the legal system of which is committed to securing justice for all. And that is clearly not involved in the individual mandate that’s part of Obamacare.

Obamacare would, in fact, set at least a federal precedent by compelling citizens to follow a mandate they haven’t consented to follow, to submit to the demand for involuntary servitude!

Column on Who is Near Socialism Now?

Who is Near Socialism Now?

Tibor R. Machan

Nearly all people who believe in a pro-active government–one that doesn’t merely make sure the rule of law by which individual rights are protected is followed but gets in there picking winners and losers–have a good deal in common with socialists. They are more or less avid statists. This includes monarchists, fascists, communists (with some peculiarities though), welfare statists, modern liberals, many conservatives and so on. Only classical liberals and libertarians are exceptions. They either adhere to a very limited role for the government–they are, in short, minarchists; or they may even embrace a kind of anarchism.

In America there are very few thinkers who come right out a identify themselves as socialists but quite a few are clearly statists. They believe government ought to make large contribution to the way the society and culture shapes up, from education, economics, science, all the way to the arts. Only religion and the press are excluded, mainly because the framers of the US Constitution to explicit and firm objection to government involvement in religion and journalism.

But there is a good test for telling if an American statists is in fact nearly a socialist, even a socialist of the Marxist variety. This is to see if he or she holds that people’s labor belongs to the society or to them–is one’s labor private or public property? The recent controversy about President Obama’s health care policy, one feature of which is that government is authorized to force citizens to purchase health insurance, is a kind of litmus test. This policy involves the government coercing people to engage in a certain kind of labor, even if only the labor of purchasing health insurance. Citizens, just for being citizens, are deemed subject to being forced to do something they may very well not choose to do, namely, to expand their labor and resources in ways they may believe is wrong.

Yes, this is not a Draconian measure for sure. And there are some other similar measures already on America’s law books, so it isn’t even entirely exceptional. But it is rather blatant and unabashed. Forcing people to get a license to work in some profession is similar but one might chalk that up to an overly zealous concern with safety, not to making people purchase what they do not want. The idea that a citizen’s labor belongs to the government to manage, to give direction to, is not just statist but indeed part and parcel of Marxian socialism.

Here is the late Professor Robert Heilbroner, famous mainly for writing The Worldly Philosophers (Simon & Schuster, 1961, a history of economic thought nearly all students are assigned upon entering college), spelling out the point in his less well know book, Marxism: For and Against (W. W. Norton, 1980):

“Indeed, the creation of socialism … requires the curtailment of the central economic freedom of bourgeois society, namely, the right of individuals to own, and therefore to withhold if they wish, the means of production, including their own labor. The full preservation of this bourgeois freedom would place the attainment of socialism at the mercy of property owners who could threaten to deny their services to society—and again I refer to their labor, not just to material resources—if their terms were not met…” (p. 157, my emphasis)

That is the crux of the issue: Not just private property but the private control or freedom of one’s labor is abolished under socialism; the state in that system (which is to say the group people in government) knows best what citizens need to do and have the legal authority, even duty, to make citizens comply for the good of society.

Is this what is involved in Obamacare? To a certain extent it is and if it is an intricate aspect of Mr. Obama and his supporters’ public philosophy, it signals that they are moving toward socialism, the state’s rule over the population of the society. (It bears out F. A. Hayek’s warning issued back in the 1940s about the heavy handed welfare state, in his The Road to Serfdom [Routledge & Sons, 1944]!)

And that means that all those who have made the charge that Obamacare is socialist have been on target and not engaging merely in badmouthing, besmirching the president’s efforts to solve an important social problem. And why protest the charge anyway? Why don’t Mr. Obama and his supporters admit outright that they want a socialist health care system and maybe even a socialist political economy in America? If such honestly were to obtain, we could start a real argument instead of engaging mostly in name-calling.

Column on Tunisia’s Free Trade Revolt

Tunisia’s Free Trade Revolt

Tibor R. Machan

In many circles it is a prominent mantra that property rights are not human rights. The rights to private property and to trade it are treated by many political thinkers and jurists as far from binding on us. So, for example, the US Supreme Court ruled in 2005, City of New London, CT, v. Kelo, that taking a person’s land for development by another private party–who might pay higher taxes on it–is just fine. In the current controversy about whether the government is authorized by the US Constitution to force citizens to purchase health insurance, the right to trade freely–or refrain from doing so–is at issue and defenders of President Obama’s position insist that the commerce clause–Article 1, Sec. 8–of the US Constitution should be so interpreted as to authorize such state coercion.

Then, of course, thousands of regulatory edicts, rules and commands from governments at all levels, are defended by many prominent academics as quite OK. This despite the fact that government regulations are tantamount to the unjust practice of prior restraint–interfering with people’s conduct not because it is illegal but because it might be.

The legal history of rationalizing such regulation–what should, in fact, be called regimentation–to authorize such unrelenting intrusiveness and interference in people’s lives is quite tortured. Initially “regulate” was taken to mean “regularize,” and sensibly so since the point was to eliminate tariffs and duties between states that had been colonies and as such used to engage in economic warfare. Once united into one country, all this made no sense and also undermined the free flow of commerce and its contribution to prosperity, so it was wise to regularize all peaceful trade.

In time, however, once interventionism became popular and the US Supreme Court started to back this up–in part because it was thought that such intervention was needed to abolish slavery and segregation–the term “regulate” was interpreted to mean “regiment” instead of “regularize.” And that is the dominant current reading of the clause, with only a few justices, legal scholars, and jurists critical of it. The recent rulings by a few federal judges invalidating President Obama’s health care policy because it orders people to engage in trade with insurance companies has made some use of the older rendition of “to regulate” but opposition to it has been frantic. (The New Republic’s Jonathan Chait referred to it as “laughable”!)

How ill conceived it is that government is thought to be authorized to regiment people’s economic activities and affairs should be plain to anyone who understands a thing or two about human liberty. But what happened in Tunisia to set off the recent rebellion might illuminate the point a bit. Here is what we find in the pages of THE WEEK (February 19, 2011, p. 48), originally published in The Times/N.I. Syndication:

“[Mohamed Bouazizi, the] young [street] trader had been in trouble with the authorities before….Under the dictatorship of President Ben Ali, permits were required for every form of business activity, often accompanied by a bribe. Bouazizi’s family would later claim that he had refused to pay the bribe demanded by the officials….According to other fruit and vegetable pedlars, vendors have a choice when faced with a municipal inspector: they can flee, and leave behind both borrow and merchandise; pay a fine equivalent to several days’ earnings, or fork out a bribe. Bouazizi, it seems, was not inclined to do any of these. When [a 45 year old female inspector] Hamdi began seizing his applies, he tried to grab them back, and she slapped him in the face….”

After this event all hell broke loose and escalated and ended, eventually, in the ouster of President Ben Ali’s government. So, by any reasonable account what brought about the Tunisian upheaval is the government’s intervention with freedom of trade, exactly the kind of conduct by government officials that a good many American jurists, political thinkers and politicians claim is constitutional and certainly not dictatorial. So then all those who try to rationalize such intervention based on a distorted fascistic or socialist ideological reading of the commerce clause, should by all rights defend President Ben Ali’s government, just as they are so willing to defend government’s commercial regimentation throughout America or, indeed, anywhere else where governments embark upon such policies. And it makes no difference whether the policies have the support of the majority, for the same reason that lynching is not justified even if the whole town supports it.

Column on A Stupid Analogy

A Stupid Analogy

Tibor R. Machan

Now that Judge Henry E. Hudson of the Virginia district court ruled that the Obama health care measure violates the U. S. Constitution by forcing people to make purchases they may not want to make, there are innumerable sophists who want to refute the rationale for the ruling. They trot out the “argument” that since people living in states may be required to carry auto insurance, they can also be made to purchase anything the government, including the feds, decides they must.

But this analogy fails because people do not have to drive! Yet under Obamacare by simply being living citizens, they would have to purchase health insurance. Never even mind that the state regulations requiring people to purchases auto insurance aren’t universal across the country and different states have the constitutional authority to handle the issues involved in their own way, with no federal mandate dictating to them what they must do.

Furthermore, one rationale in support of the state requirement that citizens who choose to drive carry insurance is that nearly all driving happens on state roads. There is no requirement to get insurance if one stays off them and confines one’s driving to private thoroughfares. And this is because it is the states that claim legal ownership of roads and they then get to set the standards for what those using the roads need to do for the privilege. (Yes, it is deemed a privilege, not a right, because of the state’s collective ownership of most roads.)

So the analogy with state requirements to carry driver’s insurance is fallacious. But when that’s pointed out, another tack is put forth, namely, that ill health is contagious like the plague or leprosy. This is desperate since it is blatantly wrong. One can have all sorts of ailments that will not be communicated to anyone near or far. One can contract ill health, injuries, maladies and so forth without the involvement of others. Sometimes it is just misfortune that brings this about, sometimes it is one’s own reckless conduct, sometimes the recklessness of people with whom one freely associates and rarely because of injuries sustained from what others do. In no such cases are those left out implicated and thus no one should be legally required to foot the bill of the health care measures, including insurance, that may be need to fix or treat things.

The sophists who bring up this line of shabby reasoning are capitalizing on the common sense idea that when people emit harm from their private activities–such as manufacture, smoking, reckless driving, and so forth–they ought to shoulder the burden that befalls others in consequences of it all. In short, no one ought to dump on other people the cost and liabilities of one’s own malpractice.

But this doesn’t apply to having to cope with most of one’s illnesses. A viral infection need not have come from someone else, nor a broken leg or nosebleed or upset stomach. When these occur people are supposed to be prepared to deal with it all, including foot the cost of getting them taken care of. Other people should not be placed into involuntary servitude so as to bail one out of either bad luck or misconduct that creates medical problems for one.

It is always a puzzle to me that so many people who are notoriously righteous about the past enslavement of millions of people around the globe, including in America, have no compunction about partially enslaving others so as to get their own agendas fulfilled. But if slavery is wrong, then so is imposing on others the negative consequences of one’s own life, just as it is wrong to deprive people of the positive consequences of the same.

This is the central issue in so many public policy debates not only in our time but from time immemorial. People are not for other people to be used against their will. Never, nohow, under no circumstances. Until this is learned good and hard everywhere, the world will be very far from having become truly civilized.

Column on Charity and Generosity that Aren’t

Charity and Generosity that Aren’t

Tibor R. Machan

In a recent stump speech urging people to keep Democrats in power, President Obama told his audience that America is a country based in large measure on the principle that “we are all our brothers’ keepers.” This is not true, but even if it were and even if that idea were itself a good one, President Obama’s political philosophy has nothing to do with it.

What the president and those who share his politics believe in is the coercive welfare state, not in charity or generosity. For both of these are strictly voluntary–one cannot be charitable or generous by putting a gun to the heads of other people and ordering them to part with their resources for the purpose of supporting various endeavors that these other people haven’t chosen to support. Neither the enforcers nor the victims can claim to be charitable or generous, not by a long shot.

Why, then, does a perfectly well educated man like President Obama, who clearly must know better, insist on characterizing what he favors as charity and generosity? It is very likely a ruse, a way to disguise the real truth which is that he and his cohorts aren’t in favor of charity and generosity at all but in favor of coercing other people to part with their resources to support programs they have not chosen to promote.

Take Obamacare, as an example, which by all accounts isn’t favored by most Americans. Even if it were clearly morally commendable to give health care and health insurance to people who aren’t able to afford it, there is nothing morally praiseworthy in making such “giving” a matter of law and public policy that one isn’t permitted by the government to withdraw from or reject.

The hallmark of morality is to do the right thing of one’s own free will. It isn’t morality when one is regimented to do what is right, it is tyranny! Such regimentation deprives the deed of its moral significance–at most it becomes desirable behavior, at worst involuntary servitude.

But for some reason these facts are systematically disguised when people like the President try to defend the coercive welfare state. The effort to make it all look like a matter of charity and generosity instead of what it is, robbing Peter to benefit Paul (but not before a good portion of the take is handed to the coercive agents themselves), most likely aims to fool people by making them feel like they are greedy, cold hearted, and stingy if they don’t support the program.

This the people clearly need to reject, disown, big time. There is nothing greedy about rejecting the coercive welfare state, not at all. It amounts, instead, to rejecting criminal confiscation of one’s resources, a confiscation that in fact makes the victims less and less able to be charitable and generous and enables the criminals to do with the resources what they please.

Back in the days when pharaohs, kings and czars claimed they owned the countries they ruled, including all its wealth–never mind that they had little to do with producing any of it themselves–government may have seemed to be charitable and generous when it handed over some of this wealth to certain of its subjects. (Even then it was mostly for favors gained from them, not to be helpful!) This is because these monarchs did in fact have legal–though rarely moral–title to the wealth under their control. So their handing it to some (few) needy others could plausibly look like charity and generosity.

But there is no justification for this view seeing that the idea that the government owns the country’s wealth is pure poppycock (despite what some prominent legal scholars claim). It is the citizenry that owns the wealth, not the government (apart from some of the politicians’ private holdings which they rarely part with other than so as to help them gain power).

In our day it is pretty clear that government does nothing much that’s productive. It may, if it does its job right, provide protection for its citizenry from those who would violate their rights, including their property rights. But as it now stands this proper job of government is nearly everywhere corrupted and government has joined the criminal gangs that embark upon extortion, theft, confiscation and oppression, not on what the Declaration stated as its task, the securing of our rights.