Posts tagged US Supreme Court

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 “I earned it, it’s mine”

On “I earned it, it’s mine!”

Tibor R. Machan

In my political circles 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. There is a lot that one owns that one hadn’t earned, made, created, produced or the like. It still is one’s private property and no one is authorized to take it from one.

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 or has inherited? Not always earned at all! Or what about what one has found, free and clear?

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 a bunch of city bureaucrats confiscated private property from citizens and gave it to others was decided on such spurious grounds.

Now, to start with, 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 earned or produced or made it all. It is a complete non-sequitor. Yes, one way to come to own something is by having produced or earned it 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.

So having come by something without having stolen or extorted it from someone is plenty of 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.

All this propaganda in favor of collective, public or community ownership is, in fact, mostly a ruse by various private individuals who want to confiscate the property of other private individuals under some kind of guise that they represent the public or the general will or some fathom thing like that. No, those groups are no more than a gang of other people who want what doesn’t belong to them and wish to sell 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 thieves, lead by hoodlums who just want to come by stuff by violent means.

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 gig on the cover of GQ, nobody is justified robbing 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 to some kind of merit but that’s a trap, for we are not always the owners of things, including our lives and limbs, as a matter of merit. It is still who we are, sovereign individuals, and what we own and others better keep off.

Column on Risk & Liberty

Risks and Liberty

Tibor R. Machan

The New York Times editorialized in panic, predictably, in the wake of the U. S. Supreme Court ruling striking down Chicago’s ban on handgun ownership. Lamenting the Court’s highly abstract debate about the constitutional clause that needed to be considered, The Times alleged that Monday’s ruling will “undermin[e] Chicago’s [sensible] law” and lead to “results [that] will be all too real and bloody.”

The Times’ central complaint amounted to the claim that the freedom to own handguns is entirely too risky. It threw out some completely discredited statistics that suggest a link between the striking down of such bans and the fostering gun violence. (This allegation is discredited in part by the failure to compare it with the beneficial results of handgun ownership, a result that has by now been demonstrated and published, for example in John Lott’s More Guns, Less Crime: Understanding Crime and Gun-Control Laws [Chicago: University of Chicago Press, 1998].)

But what is of greater interest is just how ignorant–or is it duplicitous–The Times’ editors appear to be about the connection between liberty and risky conduct. And this is all the more annoying because of course the very liberty so cherished by The Times, the right to the freedom of the press, is one of the most risky liberties in a free society. Need it be chronicled here how the freedom to speak out and write whatever one wants can produce enormous risks. The Times commonly defends the freedom of the press by fully acknowledging this risk, as in the case of Daniel Ellsberg and the Pentegon Papers some many moons ago, while insisting that the risks posed by this freedom simply must be accepted–it’s indeed one of the costs of a free society.

Handgun ownership is, of course, risky, but then so is the disarming of the citizenry. And let us remember that the most risky feature of a society is when government is the only institution that is legally entitled to wield guns while the citizenry is forbidden to do so. Not only is this a blatant case of the unequal application of the law–somehow government people aren’t supposed to pose risks while peaceful citizens are–but it is oblivious to all the studies that show how leaving free citizens armed tends to put criminals are guard, even discourages them from using their own guns.

But even if it were true that gun ownership is more risky, over all, than is the banning of guns, it is a gross non sequitur to claim that this then proves that the right to own guns must be legally invalidated. Just does not follow.

Free men and women are naturally risky types! Freedom is characterized by making it possible for people to make choices, even bad ones, just as in the case of the liberty of the press. Journalists, editorial writers, reporters and the lot who are free to do as they choose can and will do what is risky, and at times what is indeed outright malpractice. Freedom is a precondition of both good and bad human conduct. And so long as such conduct isn’t violent–and the carrying of handguns plainly isn’t, only their aggressive use is–it is the right of adult human beings to have and even use guns.

But The New York Times’ editorial team has no principled commitment to human liberty. It is concerned only with its own protected privileges while government forbids other citizens to be free. Perhaps The Times prints whatever is fit to be printed but has no concern with integrity, namely, keeping loyal to values it promulgates whenever it is convenient for its own agenda.

Of course, in this as in many other matters The Times is in sync with the Zeitgeist. Who in mainstream politics and law steps up vigorously in support of human liberty? Nearly everything favored by the current administration and its cohorts in Congress wreaks of worries about risk, safety, precaution and the like and hardly anyone cares about liberty. Security si, liberty no!

But as it’s been noted by such champions of freedom as Benjamin Franklin, those who would give up liberty so as to obtain security risk both and probably deserve neither.

Column on Democracy and Liberty

Democracy and Liberty

Tibor R. Machan

The point deserves to be made over and over: majorities have no just authority to trump individual rights! That old dependable standby of the lynch mob is a perfect illustration of this. Just because the whole town wants to hang the suspect, it doesn’t follow that it would be right to do so. The sheriff will defend the process due the accused because justice demands it. Why? Because no one may be punished or indeed imposed upon without it first having been demonstrated that the punishment or imposition is justified, deserved, or warranted.

Of course, this line of thinking takes it as a fact that individuals and their basic rights matter most than the popular will. Yet that should not be very difficult to grasp. So another old saying has it wrong–50 millions frenchmen can indeed be wrong! Millions of Nazis and communists and people around the globe with all kinds of superstitions can be and are wrong.

However, if one is wrong within one’s own sphere of authority, on one’s own property for example, or in one’s own religious or philosophical convictions, that’s no one else’s business to fix except perhaps one’s best friend or a family member who cares and would nudge one in the right direction. But being wrong is an individual right! The US Constitution attests to this with its First Amendment which certainly protects everyone who may be wrong about religion or other matters of belief.

Individual rights apply to all, including, especially, to those in the minority. In a bona fide free country one is free to be and do what one choses provided this doesn’t impose on others something they do not deserve coming to them. So when someone doesn’t want to carry health insurance, that is something he or she has a perfect right to do. (The example of car insurance is a bad one since the roads are government run, so the government may make the rules for who may or may not use them. One’s body and health doesn’t belong to the government!)

A few years ago the journalist and Newsweek International’s editor Fareed Zakaria published a book, The Future of Freedom in which he worked out a pretty good set of criteria for which countries are liberal and which are illiberal democracies. I think he was too easy on some topics so he allowed for a lot more democratic meddling in people’s lives than is justified, morally or politically. Nonetheless, the distinction Zakaria worked with is a very instructive one. When democracy intrudes on individual liberty, it is wrong–it amounts to mob rule, period, however civilized it may appear to be. But when democracy operates without such intrusiveness, it is a permissible method (though not always the soundest) for making decisions in small or large groups.

The American Founders identified every human being as equal in respect of having certain unalienable rights, among them to life, liberty and the pursuit of happiness. This pretty much amounts to the best guide as to what may not be done to the citizens of a country–their lives, liberty and their choice of what is important to them may not be voted on. It is for them to decide and no one else, other than as advisors or consultants or teachers. Certainly not as daddies or nannies, even if they are in the majority. As the US Supreme Court once ruled, “One’s right to life, liberty, and property . . . and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” (U. S. Supreme Court 319 U. S. 62, 638)

It is in fact a quintessential feature of the American political tradition, this insistence on individual rights, something that irks so many rulers and their apologists across the globe and even here in the U.S.A. The fact that everyone has these rights is clearly the greatest bulwark against tyranny. Sadly, this element of the American political tradition has never been fully accepted even in America, let alone elsewhere, so one must constantly be vigilant in opposition to those who would ignore it, from the Right or the Left or indeed any circle of enthusiasts who want to ride roughshod over us.

Column on Are Corporations Persons?

Are Corporations Persons?

Tibor R. Machan

Actually, no one thinks corporations are persons but some do believe they are groups of persons. No one thinks orchestras, or football teams or universities are persons but many do think they are variously configured people. If this is so, then they, as groups of persons, have rights, including the right to private property and freedom of speech.

When people come together for some common purpose, they do not lose their basic human rights. So all the hollering about how the recent Supreme Court ruling about whether corporations have the right to engage in political advocacy, based on the allegation that corporations aren’t persons, is off base.

Even those who oppose the ruling implicitly acknowledge the above. Thus Justice Stevens, the major dissenter on the Court, wrote, that “[T]he distinctive potential of corporations to corrupt the electoral process [has] long been recognized.” But only persons can corrupt something! Theodore Roosevelt advocated prohibiting “all contributions by corporations to any political committee or for any political purpose.” And this, too, implies that corporations are made up of people, people who have rights! There is no other way corporations can make contributions–buildings, trees, land, the sea, none of these can make contributions, only people can. Ergo, corporations are people!

In any case, I have no idea what else corporations would be. Yes, they have some kind of legal identity but that is completely derivative of their being made up of people. Usually, it is a bunch of people who get together and incorporate–now that monarchs no longer create such associations–which is to say they form a specific type of organization, usually involving pooling some resources and hiring specialists to administer these resources either for profitable or non-profitable purposes. But whichever it is, it is persons who are doing this and nothing else. You may not like those types of persons but in a democracy they have the right to obtain and wield political power.

Now it is true that when people unite with one another, they tend to gain in influence, even power, if power is at issue. Sadly, given how much politics is not a matter of upholding principles, as the American Founders envisioned it, but of confiscating funds and then distributing them–that whole redistribution thing that candidate Obama had out with Joe “the Plumber”–having united powers can go a long way to gaining political clout. But this has nothing to do with corporations as such, which are perfectly benign outfits unless they commit crimes, just as this is so with individual citizens.

So then what is up with all the corporate bashing? Mostly that if you aren’t a part of the corporation but a lot of others are, it is they and not you who will wield more political power. And if one believes in democratic politics, why complain about this? If a huge company, owned by thousands of stockholders and other investors, exerts power, such is democracy. You cannot cherry pick which group of citizens should get democratic power and which should be ignored.

The remedy for out of control corporate political influence and power is to limit democracy to very few tasks in the country, such as the selection of public officials. They will then represent those who elected them but not by doing them special favors but by helping in extending the principles of the country to new and uncharted areas of the law.

I am no corporate attorney, nor a constitutional scholar but our legal system must make sense to all citizens, not just to experts. And as a plain, ordinary citizen it seems to me that all the derision extended toward corporations amounts to rank prejudice, bias, as a generalized dislike of movie actors or farmers would be. This is nothing to be proud of, that’s for sure, even if it is widely accepted and practiced. So was racial prejudice once. Not that those who have shares or manage corporations are all fine people, not by a long shot, but neither are all doctors, teachers, engineers or bureaucrats upstanding citizens. At any given time the bulk of the members of a professional could be engaged in malpractice or be decent in how they conduct themselves.

But there is no reason to suspect those who own or run corporations of any greater predilection toward malpractice than anyone else. Sometimes, of course, they operate in a system that encourages corruption, which the welfare state clearly does, what with all the selling and buying of political favors it involves. And big firms will probably be able to get more from politicians than little ones. That, however, is the problem of the system, not of any given profession.