A FIREWALL AGAINST GOVERNMENT
Individualism does present
quandaries and moral paradoxes indeed. But should government solve them? Maybe now we will make more moral and
spiritual progress if government gets out of the way.
To explore this idea, it is useful
first to run through the various ways that our civil rights are derived and
categorized. The federal Constitution
with all of its amendments, most notably the Bill of Rights, enumerates a
number of explicit rights (I used to call them “affirmative rights”).
These rights mostly have to do with protecting the citizen from unfair or
intrusive treatment by government, but the first two amendments particularly
prevent the federal government from interfering with certain personal
expressive functions: speech, assembly, petition, religious practice, the
press, and (given some controversy about interpretation) self-defense
(including protection of family and property).
Of the other amendments, the single most important is perhaps the 14th
Amendment, for several reasons: it
incorporated (as the Supreme Court would gradually determine) many of the
provisions of the Bill of Rights to the states, provided for equal
protection of the laws, a notion of “substantive due process” (in
conjunction with the 5th), and most notably enumerated life, liberty,
and property as expressive rights for all citizens. Rights (in terms of
non-interference from government) derivable from the 14th Amendment
and all other preceding constitutional provisions in combination are generally
called “fundamental rights,” with the general understanding that
tradition or popular “common sense” can further delineate reasonable notions of
life, liberty, and property to be walled off from government (at any
level). Other rights—even as
“fundamental” as voting and marriage—have to be granted by government (usually
state) to exist at all (some scholars call these “affirmative rights”), and
still others are granted by government as entitlements at public expense, and
these may be called “social rights.”
From a constitutional perspective, another important provision is that
of unenumerated rights (in some
writings, the source of the idea of fundamental rights), being reserved for the
people, and explicit limits on federal powers.
The exercise by citizens of what
they believe to be fundamental rights may always create a tension with what
others perceive as general welfare, and typically it is the function of
representative democracy to resolve this tension and, to an extent, allocate
“shared sacrifices.” (Many students are surprised to find that our original
republic, a federal system, is much less “democratic” than most people
believe.) So it is easy to slip into a
condition where the rights of non-conforming people may be suppressed by a
“tyranny of the majority,” fed by politicians who gain personally by bartering
one special interest group against another. There are many protections in our
system of checks and balances to minimize this, but still there are many
troubling problems.
To name a few: (1) “victimless
crime” laws, including laws against sodomy and, in the past, miscegenation, and
to a large extent laws making recreational drugs illegal, as well as laws
against prostitution, gambling, and other “vices.” (2) servitude by government, notably
conscription, which the government still has a capability to enact today, along
with the possibility that government may regulate the most intimate parts of a servicemember’s life, as illustrated by the military ban on
gays (the “Don’t Ask, Don’t Tell” policy)
(3) possible misuse by government of legitimate claims (“the right to
life”) to interfere with reproductive or parental freedom (4) censorship,
zoning, the use of “chilling effects” or other mechanisms to interfere with
dissent or creative expression (5) civil asset forfeiture (6) overzealous gun
control (7) the use of the tax code to manipulate social behavior (8) the use
of civil rights laws to give some groups special rights or retroactive
reparations at the expense of those innocent of the original problems.
Some libertarians believe that
debate in these matters should be greatly simplified by reducing federal
government to its minimalist functions as originally specified in the
Constitution: national defense, a court system, foreign policy, perhaps
currency, standards of measures and copyright and bankruptcy law and (like a
low-fat diet of fruits, vegetables, grains, and beans) “not much else.” Particularly, eliminate the income tax and
replace it with nothing. Presidential
candidate Harry Browne sounds particularly effective in arguing that the choice
about spending money for charitable and social uses belongs with individuals
and families. Libertarians reasonably argue that constitutional arguments based
on limiting the federal government to enumerated powers would make many
government do-good initiatives unconstitutional, and that an unfortunate series
of events at the beginning of the New Deal (blackmail by FDR) would undermine
the Supreme Court forever.
I won’t quarrel with this view here,
but I would rather propose that it is possible to modify what we normally view
as conservative policy and steer it in a libertarian direction, with the result
that the protections of civil liberties is greatly improved, while real
problems of motivational morality—along the lines of “personal responsibility
with civility” as proposed in the first essay--are addressed in a voluntary
manner, with a particular emphasis on the willingness of people to understand
how others think. One could say that the objective of such an approach is to maximize
liberty within limited government. There are various vehicles for making
these changes, such as constitutional amendments or statutory changes. Possibly the idea of a succession of “town
halls” would convince the courts to broaden the scope of “fundamental
rights.” But here are some suggestions:
● Repeal all laws against private sexual
activities among consenting adults. Reject the idea of implementing a “social
standard” with laws that will not be enforced.
● Repeal all laws making the private use of
any substance (especially for medical purposes) a crime. We did not have a drug
problem until we had a “War on Drugs.”
● Eliminate the contingent ability of
government to conscript, and contain the ability of government to interfere
(beyond fraternization or reasonable rules of provable conduct) with the
intimate adult private choices even of those in uniform
● Define a specific point at which an unborn
child may be sentient and do not allow governments to interfere with elective
abortion or contraception before that point; emphatically protect the unborn
beyond that point. Consider the fact
that a genetically designed person may have already had his rights abridged
● Define the extent to which parents control
their own children’s education, at least to the point that they do not
subsidize through taxes programs that they find offensive.
● Recognize that families sometimes are at a
serious competitive disadvantage in a modern workplace. However rather than
regulate, allow employers to experiment with differential schemes of
compensation including regard for family responsibilities
● Eliminate race or gender or similar class
based preferences, but include aggressive non-discrimination enforcement
policies. Encourage viewing of individuals according to particular
circumstances when admitting to schools.
● Simplify the income tax with a flat tax
with only exemptions for dependents
● Avoid hate-crimes laws based on class
membership, but aggressively pursue all violent crime with strict sentencing
guidelines and elimination of reduced responsibility defenses
● Consider tort reform to eliminate frivolous
lawsuits and “chilling effect”
● Consider campaign finance reform and term
limits; encourage creative non-politicians to enter public service and run for
office
● Resist calls for government Internet or
media censorship and claims that persons
are “induced” to commit crimes by imitation; prosecute people for their own
crimes; but encourage voluntary ratings and for the entertainment industry to
improve the information portrayed by its rating system
● Allow citizens to defend themselves,
property, and families but allow some consideration of licensing of owners and
of the reasonableness of the weapons owned for legitimate self-defense.
There will, of course, be a lot of “what if” and naysaying in public forums discussing these ideas. How do we handle doomsday threats like killer epidemics, asteroids, brown dwarfs, global warming, terrorists? Wouldn’t we be “safer” (or even just more “civil”) if no private citizen could keep guns at home, if no one could put up a web site without supervision, if no violent acts could be shown in the movies? Well, maybe it would be safer not to have cars, planes, any technology at all. But technology and modern personal mobility and freedom will, in the long run, be found to save and lengthen lives. And it is impossible for government to make things “fair” for everyone by basic grouping—even with the laudable goal of righting past wrongs or skewing society for people with real family responsibilities—without doing grievous injustices to individuals.
Of course, taking moral
debate away from government does not mean that civilization does not have to
make some kind of decision, as to how far it wants to take a paradigm based on
individuality, personal choice and accountability for choice. This is particularly sensitive in issues like
the “economic” status of parenthood (leading to the question of whether to even
have children), how vulnerable members of society are viewed and treated, and
(as we look ahead to the possibility of cloning) the connection or lack thereof
between family and personal intimate choices.
Democracy (“people rule”), of
course, has always been perceived as a way to set these global “environment
variables” or, as George Gilder writes, the “sexual constitution of our
society,” (like in the documentary film “Wolves”) as well as to level the
playing field between rich and poor, aggressor and downtrodden—pretty
appropriate when dealing with issues like slavery and segregation. With individualism alive, social constructs
that previously were never questioned now have to be completely rebuilt around
new paradigms of personal choice and responsibility—answering arguments not
previously conceived. But this may be
good in the long run. With freedom and
individualism increasing, there is no more motive for
wars and silly nationalistic, religious or tribal conflicts, no reason for a
Desert Storm. Okay, maybe that takes an anti-Christ.
The War on Terrorism that started
suddenly on
It is well to remember what FDR had
listed as the four “fundamental rights”: freedom of speech, freedom to worship,
freedom from want, and freedom from fear.
ăCopyright
2001 by
Back
to home page
Email
me at Jboushka@aol.com