Archive for August, 2010

Mr. Yoo, a law professor at Berkeley, wrote an opinion piece in today’s Wall Street Journal that makes me question his ability to teach law.  He argues for a federalist approach to gay marriage, i.e. let the votes of each state decide.  Though I agree with many aspects of federalism, to use it as a means to reduce the individual liberties of a minority (or a majority) seems illogical.  And just not practical.  I have the following questions for Mr. Yoo:

• Would you have used this same argument for slavery and women’s rights?
• Is a couple only to be recognized in the states that allow it?
• If one is hospitalized in a state that does not recognize gay marriage, is their spouse without visitation rights?
• How about if they move for a job to a state that doesn’t recognize them, are they no longer married?

In his article, he uses a quote from Hamilton ‘that the Constitution would never permit the federal government to “alter or abrogate” a state’s “civil and criminal institutions [or] penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals.”‘  I entirely agree with this point but it does not suggest that Hamilton would have accepted a state doing the same.

It has been stated many times here and elsewhere that the federal government was originally defined by its power to defend us and to protect our personal property, no matter if the threat was from outside our borders or within.

Too often, way too often, people confuse democracy with individual liberty.  They are not the same.  In more normal times, to compare them would be like comparing apples to oranges.  But recently, it’s even worst.  They are directly opposed to one another.  Just look at the gay marriage issue and yesterday’s decision to void California Prop 8.  Thankfully, a federal judge ruled that a democratically approved rule that favors some individuals over others and invades one’s right to life, liberty and pursuit of happiness was unconstitutional.  Finally!  Tons of praise for that activist judge that actively represented individual liberty (and the Constitution)!

“‘Democratic’ in its original meaning [refers to] unlimited majority rule . . . a social system in which one’s work, one’s property, one’s mind, and one’s life are at the mercy of any gang that may muster the vote of a majority at any moment for any purpose.” – Ayn Rand

Democracy is a method of governing, but nothing in it’s structure protects individual rights.  Democracy does not wait for all to agree, it looks for some sort of majority.  So, by definition, someone will always be in the minority.  And that minority could, and typically does, have their rights diminished, removed, or just squandered.

Individual liberty is quite different.  It is a moral belief, independent of any political mechanism.  Heck, with the ‘right’ person as dictator, individual liberty could potentially be maximized.  The problem is that is incredibly unlikely and, even if it were to occur, it would not be stable or self-sustaining.  Our founding fathers, far from perfect, gave this a lot of thought and decided that a representative democracy, a republic, would be best.  They hoped that having the general population elect representatives (that would, first and foremost, protect the Constitution and it’s emphasis on protecting and enhancing individual liberty) would be the best form of government.

So why are democracies not equivalent to individual liberties?  Madison writes in #10 of the Federalist Papers on the risks associated with democracies:

“A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.”

We have forgotten that warning and appear to be moving towards a full on embrace of democracy (see the movement towards a popular presidential vote as one example) and the populist mentality that comes with it.  We have stopped talking about defending personal property and liberty and gone right to discussing how best to take from some for the betterment of others.  From Madison to Hayek, we have been warned repeatedly that this is a path to totalitarianism.

It is this poor sense of direction that gave me hope for the Tea Party movement.  At first, it was a large and informal group of individuals that were demanding that our representatives get back on the right path.  The path to individual liberty and low government involvement in individuals’ personal lives.  Yes, at the beginning, it was focused on taxes and our wallets, but it represented much more.  To me, it represented a desire to reassert our moral belief that all are created equal and deserve a society that respects and protects their rights.

However, I fear that it is being hijacked by some small (or not so small, who knows) faction that has changed the dialogue from protecting individual liberty to fighting for democracy.  In the Twittersphere, many a Tea Partying endorser is complaining about the elitist judge going against the 7 million that voted for Prop 8.  By doing so, they are showing their support for mob rule (be it through a populist vote or otherwise) and pushing to the side THE unalienable right to “one’s work, one’s property, one’s mind, and one’s life”.