individual rights — VOICES for REASON

In posts criticizing my recent Forbes.com column (written with Yaron Brook), Ezra Klein and Will Wilkinson challenge my claim that government housing policy is un-American. As Wilkinson puts it in the comments section of his post:

The argument [that government housing policy is un-American] as stated is obviously (1) untrue: subsidizing specific patterns of settlement, land, houses, etc. is a longstanding American tradition; and (2) fallacious: implying that an idea has merit because it is distinctive of one’s own tradition is a subtle form of appeal to authority.

I can sympathize with people who bristle at claims that this or the other thing is “un-American.” Usually that tactic is used as an undefined smear or an appeal to the authority of tradition. But that’s not what Yaron and I were doing.

Yaron and I have a certain view of what the essence of America is. Our view is that certain basic ideas shaped the founding of this country: namely, the sovereignty of the individual, and government as the protector of the individual’s rights.

Whether or not government housing policy is un-American, therefore, has nothing to do with whether most Americans (now or in 1776) think the government should promote housing. It has nothing to do with what housing policies the Founders themselves might have advocated. The Founders were great men but they were not infallible oracles–they made mistakes and were not always fully consistent. The issue is: something is un-American if it is inconsistent with the principle of individual rights. That’s not a matter of tradition, but of logic.

Klein and Wilkinson suggest that all of this is irrelevant. It shouldn’t matter if a given policy is consistent with America’s founding principles–what matters is the policy’s merits. In Klein’s words, “we should stick to policy argument rather than philosophical projection.”

But Yaron and I share a radically different view of what constitutes the merits or demerits of a policy. We reject the widespread idea that to debate a policy on its merits means to engage in some sort of utilitarian calculus. Our view is that the standard for whether a policy is desirable is precisely its relationship to America’s founding principles–not out of blind obedience to tradition, but because those principles are true. To examine a policy on its merits is to ask: is it consistent with individual rights or not?

Our Forbes.com piece was not an appeal to authority or tradition. In fact, we went out of our way to declare our opposition to government’s traditional promotion of homeownership. Our point was that if you agree with us and the Founding Fathers, that government should protect your right to pursue happiness, then you have to reject the idea that the government should have a position on the wisdom of homeownership.

In my article, “Justice Holmes and the Empty Constitution,” I discussed the widespread doctrine that the Constitution’s underlying purpose—protection of individual rights to life, liberty, and property—has no legitimate role in interpreting the document’s language. I summarized this view, pioneered by Justice Oliver Wendell Holmes, Jr., in the early twentieth century and prevalent among judges today, as holding that “the Supreme Court presides over an empty Constitution—empty of purpose, of moral content, of enduring meaning—bereft of any embedded principles defining the relationship between man and the state.”

In recent hearings, Supreme Court nominee Elena Kagan confirmed her allegiance to this modern orthodoxy.

Kagan’s views came out under clumsy questioning from Sen. Tom Coburn, an Oklahoma Republican and religious conservative. Coburn’s questions mixed together several ideas: that individuals have natural rights—that those rights pre-exist the Constitution—that such rights are God-given—and that those rights include owning guns for self-defense.

Rather than try and untangle Coburn’s mish-mash of truth, falsehood, and controversial detail, Kagan used the knife of Holmesian orthodoxy to slice them away with a single stroke. Inquiries about man’s natural rights are irrelevant to her fitness for the Supreme Court, she testified, because they are “outside the Constitution and the laws.” As such, she told Coburn, “you should not want me to act in any way on the basis of such a belief.” Read the rest of this entry »

Amid the clamorous debate over health care, how much have you heard from the doctors? Very little. Nobody’s particularly interested in what they have to say. It’s taken for granted that they’ll always be there when you need them.

These are the forgotten men and women of American health care. They stand to one side, mostly silent, while self-important politicians noisily debate how to allocate “access” to health care. These legislators hold showy “summit” meetings of “stakeholders,” where doctors are outnumbered by the poor, the uninsured, the already-sick, the health insurers, the drug companies, and big corporations like Walmart. In this political universe of warring pressure groups, no tiny minority can expect to have much influence—even the minority that provides the services everyone is clamoring for.

Since professional organizations like the American Medical Association won’t rise to their members’ defense, it falls to the rest of us—those whose very lives may depend on a physician’s skill and dedication—to consider some pointed questions our leaders won’t ask: Read the rest of this entry »

Montana has joined the short list of states that permit physician-assisted suicide . . . sort of.

It started with a court case brought by Robert Baxter when he was terminally ill with lymphocytic leukemia. His symptoms included infections, chronic fatigue, anemia, night sweats, nausea, massively swollen glands, digestive problems and generalized pain.

“I have lived a good and a long life, and have no wish to leave this world prematurely,” Baxter told the trial court back in 2008. “As death approaches from my disease, however, if my suffering becomes unbearable I want the legal option of being able to die in a peaceful and dignified manner by consuming medication prescribed by my doctor for that purpose.” Without court permission, Baxter’s doctor could not prescribe such a lethal dose without exposing himself to a charge of homicide.

The trial court granted Baxter’s petition—but tragically, not until the day he died.

Read the rest of this entry »

Frustrated Americans around the country are gearing up for another round of grassroots “tea parties” on Tax Day, April 15. Up to this point, it is unclear whether the loosely-connected protests will amount to anything other than a fleeting backlash against an onslaught of government intervention. What unites the protesters is not a consistent intellectual outlook–they appear to hold a hodgepodge of viewpoints–but rather their anger at the alarming expansion of our government. To have real impact, they’ll need a consistent intellectual framework.

Although the Tea Party name adopted by the protesters evokes images of the American Revolution, there is, at present, no basis for comparison. The American Revolution was fundamentally an intellectual movement–a revolt against the anti-freedom ideas motivating Britain’s treatment of the colonists, and, most importantly, a revolt for the idea of individual rights. These radical new ideas about what government should and should not consist of were enshrined by America’s Founding Fathers in the Declaration of Independence, and were the motivating force behind the revolt.

If today’s tea party protesters intend to spark any significant change, they need to understand that ideas drive change, and they need to advocate the right ideas. Both of these points are addressed in Onkar Ghate’s video presentation, “Atlas Shrugged: America’s Second Declaration of Independence.”

I recently attended a Heritage Foundation panel discussion, “Advice to President Obama on Judicial Nominations,” featuring prominent legal commentators. They touched on a variety of factors that go into choosing judicial nominees these days: collegiality, “humility,” diversity, judicial experience, scholarship, age, religion, gender, geographical roots, and so forth. Interestingly, however, none of the panelists suggested ascertaining a potential nominee’s commitment to the basic political principles on which this nation was founded. The individual rights to life, liberty, property, and the pursuit of happiness–apparently, these are regarded as irrelevant in choosing judges, or perhaps too abstract to form a basis for evaluation.

I disagree. The Founders’ wisdom is as true today as it was two centuries ago. Protecting individual rights is the fundamental reason why governments (and judges) exist. As I have argued elsewhere, “America desperately needs a new generation of judges who understand that their function is not to uphold social opinions but to protect our rights.”

The panelists were Walter Dellinger III (Duke law professor, former Solicitor General of the United States), Stuart Taylor, Jr. (author and contributing editor to Newsweek), and Jonathan Adler (Case Western law professor). The program was chaired by Edwin Meese III (attorney general under Ronald Reagan).