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 September 11, 2001, has of course raised new questions about balancing civil liberties with our need to depend upon government to protect us from foreign enemies—and we know that we have those that hate us for our freedoms. The general principle that we must follow is respect for personal privacy and intimacy, expressive choices, and responsible free speech, while at the same time accepting measures aimed narrowly at terrorism and at foreign enemies. We are now, after all, at war.  There is a more thorough exploration of this balance at the new essay on terrorisn and civil liberties, at http://www.doaskdotell.com/content/terorism.htm.

            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 Bill Boushka. All rights reserved, subject to fair use

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