Posts Tagged ‘Rule of Law’

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”.

I’m not a big fan of foul language in public but was jail time really necessary?  What was the judge protecting law abiding citizens from?  A shirt?

“Man has a single basic choice: to think or not, and that is the gauge of his virtue. Moral perfection is an unbreached rationality–not the degree of your intelligence, but the full and relentless use of your mind, not the extent of your knowledge, but the acceptance of reason as an absolute.” – Ayn Rand

We have an issue in this country.  We think the wrong people are stupid.  Sarah Palin may be the best current example.  Watching the interviews with Katie Couric would give many the impression of stupidity, less so if you read the uncut transcripts.  (Editors are magicians, aren’t they?)  However, stupidity is a descriptor relative to some absolute.  So, what is she stupid at?  Managing a complex and inherently unstable federal system that dominates over 25% of the US economy?  Maybe it’s her inexperience in negotiating with terrorists?  Or maybe its her desire to exert her right to have an opinion on the act of abortion without getting into the legality of it?  Why are those adequate measures of intelligence?

I don’t want this post to become a discussion on Mrs. Palin’s intelligence but I use it as an example of a problem I see when people disparage her.  I feel comfortable saying that I have listened to more of Sarah Palin’s speeches and interviews than the typical person.  Even with that, I do not have the confidence in saying anything about her mental abilities.  And if I can’t, I dare say most can’t.  Honestly, at least.

Why is it that no questions were directed at her philosophy of governing?  I think she has a leg up over many in the current federal government system because of her beliefs that less government influence in our personal lives will lead us to a stronger nation.

NOTE:  Right after hitting the publish button on this post, I went to the WSJ Opinion page and saw an opinion piece by Norman Podhoretz.  Chills up and down my spine…  For a much better discussion on this topic, I would refer you to the WSJ article.

chron.com

In the Wall Street Journal’s opinion section, Scott Sperling of THL Partners (a private equity firm) defends the current administration’s auto workout plan as a capitalistic approach.  With all due respect, I don’t believe he understands the meaning of capitalism.

Rather than re-inventing the wheel, I present the wikipedia definition of capitalism below;

Capitalism is an economic system in which wealth, and the means of producing wealth, are privately owned.  Through capitalism, the land, labor, and capital are owned, operated, and traded for the purpose of generating profits, without force or fraud, by private individuals either singly or jointly, and investments, distribution, income, production, pricing and supply of goods, commodities and services are determined by voluntary private decision in a market economy.  A distinguishing feature of capitalism is that each person owns his or her own labor and therefore is allowed to sell the use of it to employers.  In a “capitalist state”, private rights and property relations are protected by the rule of law of a limited regulatory framework.

I believe that the above adequately defines capitalism and further discussion on it would be a waste.

In no way do the actions taken by the federal government (this administration or past administrations) to ‘save’ the US auto industry have any resemblance to 1) the fair trade of land, labor, and capital, and/or 2) the respect for the rule of law.  For him to offer that it is capitalistic because all parties suffered is ludicrous. In his own words, he mentions that the government “demands… …retirees take equity” and that it (government) “used rigorous analysis to make tough decisions.”  Remember, it was Bush and Congress (including Obama) that decided to get involved in the first place by writing a bailout check rather than letting these two (GM and Chrysler) go through the rational and logical process called Chapter 11.  The definition of capitalism does not include a caveat allowing an elected majority the right to dictate terms that go against the rule of law.

Actually, we can go back a little farther and assess some blame on the banks for being willing to fund a leverage buyout of Chrysler by a private equity firm, knowing that said firm has never been self-sufficient, was at the peak of an economic cycle, and had massive fixed labor costs (most of that is not hindsight).  They, under capitalism, have every right to make bad decisions, but they should have to suffer the consequences.  If they did, maybe Chrysler would have been liquidated and GM would have survived, as a major market participant would have been eliminated from the market.  Who knows the outcome since the free market was never allowed to operate.

It may be that the action taken by the current administration was the best solution available to lessen the pain by the largest amount for all parties directly involved, but in no way can it be confused with capitalism.  It was an action taken (forcefully and against the general population of the US) by a body of government elected by about 50% of the population, with the thought (right or wrong) that immediate steps were needed for the good of “society.”  In my opinion, the likely immediate benefits are far outweighed by the lasting implications of this decision, especially, if we resign ourselves into thinking that these actions represent capitalism. 

As mentioned above, maybe this was the best coarse of action, but we need to be honest about it residing outside the basic principles of capitalism.  If we accept Mr. Sperling’s argument, we do ourselves an injustice, redefine the word ‘capitalism’, and bend to forces of those in power, neglecting the rights of Individuals (singly or jointly) to succeed and fail.

If you don’t read the entire article, please read the excerpt below.

“The value of the rule of law is not merely a matter of economic efficiency.  It also provides a bulwark against arbitrary governmental action taken at the behest of politically influential interests at the expense of the politically unpopular.  The government’s threats and bare-knuckle tactics set an ominous precedent for the treatment of those considered insufficiently responsive to its desires.” – Todd J. Zywicki