International Law vs. Homeschooling

An international treaty -- which the U.S. Senate has not ratified -- could nevertheless be used to bar parents from homeshooling their children. An article at LifeSite explains:

The Home School Legal Defense Association's (HSLDA) Chairman and General Counsel, Michael Farris, warns that even though the U.S. has never ratified the United Nations Convention on the Rights of the Child, the convention may still be binding on citizens because of activist judges.

According to a new "interpretation" of what is known as "customary international law," some U.S. judges have ruled that, even though the U.S. Senate and President have never ratified the Convention, it is still binding on American parents. "In the 2002 case of Beharry v. Reno, one federal court said that even though the Convention was never ratified, it still has an 'impact on American law'," Farris explained. "The fact that virtually every other nation in the world has adopted it has made it part of customary international law, and it means that it should be considered part of American jurisprudence."

Under the Convention, severe limitations are placed on a parent's right to direct and train their children. As explained in a 1993 Home School Court Report by the HSLDA, under Article 13, parents could be subject to prosecution for any attempt to prevent their children from interacting with material they deemed unacceptable. Under Article 14, children are guaranteed "freedom of thought, conscience and religion" - in other words, children have a legal right to object to all religious training. And under Article 15, the child has a right to "freedom of association." "If this measure were to be taken seriously, parents could be prevented from forbidding their child to associate with people deemed to be objectionable companions," the HSLDA report explained.

The HSLDA report points out that

the U.N. Convention would:

[1] transfer parental rights and responsibilities to the [s]tate,
[2] undermine the family by vesting children with various fundamental rights which advance notions of the child's autonomy and freedom from parental guidance; and
[3] establish bureaucracies and institutions of a national and international nature designed to promote "the ideas proclaimed in the Charter of the United Nations'' and to investigate and prosecute parents who violate their children's rights. . . .

The State Will Determine the Child's "Best Interest'

Article 3: "In all actions concerning children," the courts, social service workers and bureaucrats are empowered to regulate families based on their subjective determination of "the best interest of the child." This article shifts the responsibility of parental judgment and decision making from the family to the State (and ultimately the United Nations).

There is hope, however, thanks to the U.S. Supreme Court's opinion in Pierce v. Society of Sisters (1925) (summary here, full opinion here). The summary:

Facts of the Case

The Compulsory Education Act of 1922 required parents or guardians to send children between the ages of eight and sixteen to public school in the district where the children resided. The Society of Sisters was an Oregon corporation which facilitated care for orphans, educated youths, and established and maintained academies or schools. This case was decided together with Society of Sisters v. Hill Military Academy.

Question Presented

Did the Act violate the liberty of parents to direct the education of their children?

Conclusion

Yes. The unanimous Court held that "the fundamental liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only."

In reaching its decision, the Court wrote that

we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Pierce v. Society of Sisters dates from the era of Lochnerian (substantive) due process, which ended during the New Deal. But a new era of substantive due process may be upon us. Moreover, given the Court's present makeup (four conservatives, one waffler, and five Catholics) I am hopeful that a test of parents' rights would be decided in favor of parents. Given Justice Kennedy's quirkiness, I would be even more sanguine if Justice Stevens or Justice Ginsburg were to retire soon.

(Thanks to my daughter-in-law for the link to the LifeNet article.)

Then and Now

I recently visited my 90 year-old mother, who lives about 1,000 miles from me. Here she is, circa 1929, and in May 2006. The difference 75+ years makes.

In Memoriam

I dedicate today's blogging to the eight of my mother's siblings (all seven of her brothers and one of her two sisters) who served in the armed forces of the United States. Seven of them served during World War II. To Joe, Louis, Lawrence, Helen, Charles, Chet, George, and Fred: Born 1905-1922, Died 1947-2004.

"All, all, are sleeping on the hill."

Cosmic Justice

Personal characteristics should have nothing to do with one's fundamental rights as a citizen -- the peaceful enjoyment of life, liberty, and property -- and should affect a person's procedural rights (e.g., voting) only in an effort to ensure that those rights are exercised responsibly. The right to vote, for example, is circumscribed to take into account

• the attainment of mature judgment, as best as can be determined by a voter's age (though 18 is hardly an age of mature judgment, and 30 would be closer to the mark)

• a stake in the acts of government (though mere citizenship used not be be qualifying, it certainly is better than residence without citizenship); and

• demonstrated respect for the rule of law (imprisoned felons cannot vote in any State but Vermont or Maine).

"Positive" governmental acts, that is, acts of intervention in private affairs, ought to be similarly neutral and minimally discriminatory. To the extent that such acts are necessary (e.g., taxation for the purpose of funding the common defense), they should be designed so as not to create dependence on government or to stifle initiative by penalizing success, and especially not to distort voluntary social and economic relationships.
Why? Because it is through those relationships that we signal each other to inculcate and elicit wanted behaviors, and to discourage unwanted behaviors. Those relationships and signals become less effective when government goes beyond the assurance of fundamental rights and the minimal administration of procedural rights, that is, when government abandons neutrality.
"Neutral government" is an oxymoron, of course. For example, government has at various times enforced slavery and racial segregation, denied voting rights on the basis of race and gender, and -- more recently -- enabled the suppression of political speech (through campaign finance "reform" and speech codes at public universities) and foisted racial discrimination (i.e., affirmative action) on private places of employment.
Affirmative action is one of those policies (like progressive taxation and tax-funded disaster relief) that has arisen from a misguided "quest for cosmic justice" (to use Thomas Sowell's term). Those who seek cosmic justice are not content to allow individuals to accomplish what they can, given their genes, their acquired traits, their parents' wealth (or lack of it), where they were born, when they live, and so on. Rather, those who seek cosmic justice cling to the Rawlsian notion that no one "deserves" better "luck" than anyone else. But "deserves" and "luck" are emotive, value-laden terms. Those terms suggest that there is some kind of great lottery in the sky, in which each of us participates, and that some of us hold winning tickets -- which equally "deserving" others might just have well held, were it not for "luck."
That is not what happens, of course. Humankind simply is varied in its genetic composition, personality traits, accumulated wealth, geographical distribution, etc. Consider a person who is born in the United States of brilliant, wealthy parents -- and who inherits their brilliance, cultivates his inheritance (mental and monetary), and goes on to live a life of accomplishment and wealth, while doing no harm and great good to others. Such a person is neither "lucky" nor less "deserving" than anyone else. He merely is who he is, and he does what he does. There is no question of desert or luck.
Such reasoning does not dissuade those who seek cosmic justice, which seems to be almost everyone. It's probably a good chunk of the "80 percent," who envy the other "20 percent," that is, those persons whose brains, talent, money, and/or drive yield them a disproportionate -- but not unwarranted -- degree of fortune, fame, and power. But among the seekers of cosmic justice also are many of the "20 percent," that is, the rich, famous, and powerful who hypocritically use government to enforce their notions of what is "right."
Our law-makers are, for the most part, seekers of cosmic justice. And they accrue power by appealing to their fellow seekers of cosmic justice. Thus they have saddled us with progressive taxation, affirmative action, and a plethora of other disincentivizing, relationship-shattering, signal-distorting policies. It is supremely ironic that those policies have made all of us (except perhaps thieves) far worse off than we would be if government were to get out of the cosmic justice business.

The Slipperier Slope in England

See this, about "a London Times piece on the selective abortion of well-advanced fetuses with minor and easily corrected genetic defects." Then see my earlier post about "The Slippery Slope in England," and follow the links therein.

How "24" Should Have Ended

Here's how "24" ended:

• Jack Bauer and the treacherous Christopher Henderson take out the terrorists who had captured a Russian missile sub (moored conveniently in Los Angeles harbor), from which the terrorists were planning to shoot missiles at major American cities. (San Francisco, presumably wasn't a target because it's not a major American city.)

• Henderson volunteers to shut down the missle launch sequence (doesn't that phrase ring authoritatively?), in exchange for immunity (stupid, stupid), but demands that Jack give him a gun because he doesn't trust Jack. Jack agrees to the immunity (talk is free) and gives Henderson a gun. Henderson starts shutting down the missile launch sequence (wow!) -- and it's up to him because the Navy can't launch (there's that word, again) an attack on the sub before the missiles launch (and again).

• Henderson shuts down the missile launch sequence (I love it!) and tries to bushwack Jack, but (click) Henderson's gun isn't loaded. Jack shoots him -- dead -- because Henderson had accepted an unloaded gun from Jack. (First mistake Henderson makes all day, but it's a doozy.)

• Next, Jack has to get the reptilian President Logan to confess his involvement in the whole megillah. How can Jack do that? By taking command of the presidential helicopter (see below) and by making Logan believe that he (Jack) is going to shoot him (Logan) if he (Logan) doesn't confess. Jack almost pulls the trigger, then relents. Logan thinks he (Logan) is off the hook. But the real plan is for Logan to carry a micro-transmitter that Jack has cunningly placed into a Mont Blanc ballpoint pen that's a replica of the one Logan usually carries. (Jack, of course, manages to switch pens during the aforementioned confrontation.) Now, how is Jack going to get Logan to speak into the Mont Blanc pen?

• That's where Mrs. (Ms. ?) Logan comes in (so to speak). Earlier she had tricked Pres. Reptile into believing that she still had the hots for him. Her real purpose being to delay the helicopter flight long enough for Jack to trick his way into commandeering it. (She succeeds because, Pres. Reptile is -- after only -- only human.) After Jack pulls the pen switch and releases Pres. Reptile, Ms. L. confronts him (Pres. Reptile) and gets him to talk into the gimmicked up pen.

• Chloe O'Brien, of course, records Pres. R's confession, and plays it for the attorney general. The AG then tells federal marshals to arrest Pres. R. The presidential Secret Service detail goes along with this. Call it professional courtesy.

• Jack is ready to fade into the sunset -- after a smooch or two with Audrey -- but he's tricked into answering a phone call from his estranged daughter, Kim, who had gone off in a huff several hours earlier because Jack had failed to tell her that he was really alive. (See, when this season began, Jack was pretending to be dead because the Chinese were after him for something he had done last season. And everyone in the world, except Kim, knew that Jack was alive -- and she was so angry that Jack hadn't clued her in that she quit speaking to him. That'll teach him to play dead.)

• Anyway, there isn't a phone call from Kim -- just a bunch of Chinese persons (hah, you thought I was going to say "Chinks") who jumped on Jack, beat him to a bloody pulp, and put him on . . . a slow boat to China.

• End of season. (Of course I left out a lot, including the re-appearance of Morris O'Brien, Chloe's ex-husband, who in fact had never before appeared in the series, and who was in such putative disgrace that he had gone from being a member of CTU to selling shoes in Beverly Hills. It looks like he and Chloe may get back together. Perhaps there will be more O'Briens next season. I also left out the mysterious, bald geek who spent a lot of time on phone with Pres. R during the last several hours of the series. What's with him? No one knows, perhaps all will be revealed next season.)

Here's how it should have ended:

• Jack saves time by shooting Henderson at the outset. He is then able to call in an air strike to blow up the sub -- terrorists, missiles, and all -- before the missiles are launched.

• Jack shoots Pres. R, after getting him to divulge the name, location, and function of the bald geek.

• Jack shoots the bald geek and the other weirdos who have been hanging out with him (the bald geek).

• Jack shoots Audrey because she should be dead anyway, having lost 15 million pints of blood after Henderson had cut one of her arteries several hours earlier.

• Jack shoots everyone else, including the Chinese persons who try to kidnap him. No witnesses, no laundry.

• Jack commandeers the Chinese persons' boat, and he and Ms. Logan sail off . . . on a slow boat to Tahiti.

The Indivisibility of Economic and Other Freedoms

John Stuart Mill, whose harm principle I have found wanting (e.g., here, here, and here) had this right:

If the roads, the railways, the banks, the insurance offices, the great joint-stock companies, the universities, and the public charities, were all of them branches of government; if in addition, the municipal corporations and local boards, with all that now devolves on them, became departments of the central administration; if the employees of all these different enterprises were appointed and paid by the government, and looked to the government for every rise in life; not all the freedom of the press and popular constitution of the legislature would make this or any other country free otherwise in name.

From On Liberty, Chapter 5
(thanks to Mike Rappaport of The Right Coast for the pointer)

Friedrich A. Hayek put it this way:

There is, however, yet another reason why freedom of action, especially in the economic field that is so often represented as being of minor importance, is in fact as important as the freedom of the mind. If it is the mind which chooses the ends of human action, their realization depends on the availability of the required means, and any economic control which gives power over the means also gives power over the ends. There can be no freedom of the press if the instruments of printing are under the control of government, no freedom of assembly if the needed rooms are so controlled, no freedom of movement if the means of transport are a government monopoly, etc. This is the reason why governmental direction of all economic activity, often undertaken in the vain hope of providing more ample means for all purposes, has invariably brought severe restrictions of the ends which the individuals can pursue. It is probably the most significant lesson of the political developments of the twentieth century that control of the material part of life has given government, in what we have learnt to call totalitarian systems, far‑reaching powers over the intellectual life. It is the multiplicity of different and independent agencies prepared to supply the means which enables us to choose the ends which we will pursue.

From part 16 of Liberalism (go here and scroll down)

A Precedent for the Demise of the Insanity Defense?

Lou Michaels writes at Suits in the Workplace about a recent decision by the Massachusetts Judicial Supreme Court:

Looking to both Massachusetts and federal disability law, the court noted that nothing in the Massachusetts law suggested that a lower standard of conduct should apply to handicapped employees vice employees without a disability. Examining a specific case involving drunken behavior by an alcoholic employee of an airline, the court refused to distinguish between misconduct due to alcoholism and misconduct due to mental illness. In other words, an employer is not required to "accommodate" a disabled employee by altering the fundamental conduct standards of the workplace. The dissent misses this key point, and opens the door to a completely unmanageable workforce, by trying to save the case noting that a "reasonable" jury could conclude that the conduct was not egregious because it was the result of mental illness.

In other words, the majority's opinion rejects the notion that conduct is excused by mental illness. "Conduct" includes murder, no? Ergo, murder should not be excused by mental illness, perhaps not even in Massachusetts. End of "not guilty by reaon of insanity" -- I wish.

Related post: I'll Never Understand the Insanity Defense

A Market Solution to the Social Security Mess?

Andrew Roth of The Club for Growth posts about a

man [who] is trying to sell his future Social Security benefits on eBay. The starting bid is $200,000. . . .

[D]oes this portend the public’s desire to do an end run around the government? If Washington is unwilling to create personal accounts for Social Security, what’s to prevent citizens from creating an alternative market themselves? Of course a big legal roadblock, which would make all of this irrelevant, is the fact that people don’t technically own their benefits so the law might prevent them from selling to another person.

But I don't think that the law could prevent something like this from happening:

1. A borrower (B) gives a prospective lender (L) full access to B's Social Security earnings record, employment record, financial data, health history, and other information relevant to B's future earnings prospects and life expectancy.

2. L estimates B's Social Security benefit (or likely range of benefits), using the detailed calculator that is available at the Social Security website.

3. L computes the present value (v) of the B's Social Security benefit, using a rate of interest (r) that would enable L to earn an acceptable rate of return, given (a) L's prospecitve uses of B's loan payments; (b) B's personal, physical, and financial situation; and (c) the possibility of changes in (uninflated) Social Security benefits during B's expected lifetime.

4. L offers B a loan in the amount of v, repayable over the remainder of B's life at rate of interest r, and subject to certain safeguards for L. For example, the loan (or portions of it) might be secured by a mortgage and/or a life insurance policy.

5. L and B negotiate the terms and conditions of the loan.

6. The model established by L and B is adopted on a large scale by financial institutions, resulting in a market for Social Security-benefit-backed securities.

No one would force the Ls and Bs of the country to make or take loans. The would act only if they believe that they would be better off by making and taking such loans. And -- most of the time -- both would be better off. The Bs would receive lump sums on which they could earn better returns than the 2 to 3 percent current workers will earn on their "contributions" to Social Security. The Ls would gain by making fairly secure long-term loans, the payments on which they would be able to roll over into similar loans or ventures with potentially greater payoffs.

The Social Security system, in large part, would become a mechanism for funding productive investments in the private sector. That would be a major, positive change -- given that the current (de facto) function of Social Security is to direct funding away from productive investments and toward current consumption.

Related post (with links to reference materials and other posts on the subject): Social Security: The Permanent Solution

Actionable Harm and the Role of The State

THERE IS A REVISED VERSION OF THIS POST HERE. 

 

Selected bibliography of relevant posts (with links to other relevant posts therein):
The Erosion of the Constitutional Contract (03/23/04)
Why Outsourcing Is Good: A Simple Lesson . . . (03/31/04)
Fear of the Free Market: Part I, Part II, and Part III (04/08/04, 04/11/04, and 04/16/04)
Trade Deficit Hysteria (05/14/04)
Getting It Wrong: Civil Libertarians and the War on Terror (A Case Study) (05/18/04)
Social Injustice (05/23/04)
The Cost of Affirmative Action (06/01/04)
Who Decides Who's Deserving? (08/13/04)
Refuting Rousseau and His Progeny (08/14/04)
The Rationality Fallacy (08/16/04)
The Main Causes of Prosperity (08/21/04)
It Can Happen Here: Eugenics, Abortion, Euthanasia, and Mental Screening (09/11/04)
Why Class Warfare Is Bad for Everyone (09/21/04)
Is There Such a Thing as Legal Discrimination? (09/23/04)
More on the Legality of Discrimination (09/24/04)
Race and Acceptance (09/27/04)
Does Capital Punishment Deter Homicide? (10/04/04)
Libertarian Twaddle about the Death Penalty (10/13/04)
Debunking More Myths of Income Inequality (10/13/04)
Free-Market Healthcare (10/15/04)
Social Security Is Unconstitutional (10/31/04)
Social Security -- Myth and Reality (11/20/04)
Peter Singer's Fallacy (11/26/04)
A Crime Is a Crime (11/26/04)
The Origin and Essence of Rights (01/01/05)
Notes on the State of Liberty in American Law (01/01/05)
Liberty and Its Prerequisites (01/01/05)
The Economic Consequences of Liberty (01/01/05)
The Destruction of Income and Wealth by the State (01/01/05)
The Broken Promise of Liberty (01/01/05)
Redeeming the Promise of Liberty (01/01/05)
Affirmative Action: Two Views from the Academy (01/19/05)
A Century of Progress? (01/30/05)
Socialist Calculation and the Turing Test (02/12/05)
Free Speech and Limited Government (02/15/05)
Feminist Balderdash (02/19/05)
Judeo-Christian Values and Liberty (02/20/05)
Social Security: The Permanent Solution (02/21/05)
The Social Welfare Function (03/17/05)
Killing Free Speech in Order to Save It (03/23/05)
Yet Another Look at Democracy (03/30/05)
A Mathematician's Insight (04/03/05)
Libertarianism, Marriage, and the True Meaning of Family Values (04/06/05)
Rich Voter, Poor Voter, and Academic Liberalism (04/13/05)
Conservatism, Libertarianism, and Public Morality (04/25/05)
Illusory Progress (05/15/05)
A Contrarian View of Segregation (05/18/05)
I Dare Call It Treason (05/31/05)
Raich and the Rule of Law (06/07/05)
Free Markets, Free People, and Utter Disgust with Government (06/24/05)
An Agenda for the Supreme Court (06/29/05)
The Old Eugenics in a New Guise (07/14/05)
Saving the Innocent? (07/23/05)
But Wouldn't Warlords Take Over? (07/24/05)
Conservatism, Libertarianism, Socialism, and Democracy (08/05/05)
Three More Cheers for the Great Political Divide (08/12/05)
Schelling and Segregation (08/15/05)
Treasonous Speech? (08/18/05)
Foxhole Rats, Redux (08/22/05)
After the Bell Curve (08/27/05)
A Footnote . . . (08/30/05)
Science, Evolution, Religion, and Liberty (08/31/05)
Katrina's Aftermath: Who's to Blame? (09/01/05)
"The Private Sector Isn't Perfect" (09/02/05)
Common Ground for Conservatives and Libertarians? (09/04/05)
A Modest Proposal for Disaster Preparedness (09/07/05)
The Supreme Court: Our Last, Best Hope for a Semblance of Liberty (09/22/05)
Liberals and the Rule of Law (09/26/05)
The Legality of Teaching Intelligent Design (09/26/05) and Part II (09/28/05)
Thoughts That Liberals Should Be Thinking (09/27/05) and More Thoughts . . . (10/09/05)
Consider the Children (10/07/05)
Liberty or Self-Indulgence? (10/10/05)
Same-Sex Marriage (10/20/05)
A Useful Precedent (10/22/05)
Consider the Children (10/27/05)
"Equal Protection" and Homosexual Marriage (10/30/05)
Law, Liberty, and Abortion (10/31/05)
Equal Time: The Sequel (11/05/05) and addendum
Understanding Outsourcing (11/07/05)
Science, Logic, and God (11/08/05)
Joe Stiglitz Ig-Nobelist (11/11/05)
Abortion and the Slippery Slope (11/20/05)
Taxes, Charitable Giving, and Republicanism (11/24/05)
Libertarianism and Preemptive War: Part II (11/27/05)
Liberty of Contract, Substantive Due Process, and States' Police Power (11/28/05)
Privacy, Autonomy, and Responsibility (11/29/05)
A Simple Fallacy (12/01/05)
Ten Commandments of Economics (12/02/05)
Torture and Morality (12/04/05)
More Commandments of Economics (12/06/05)
Peter Singer's Agenda (12/15/05)
The Media's Measurable Bias (12/19/05)
Anarchy: An Empty Concept (12/20/05)
Productivity Growth and Tax Cuts (12/29/05)
Capitalism, Liberty, and Christianity (01/01/06)
More Punishment Means Less Crime (01/03/06)
More about Crime and Punishment (01/06/06)
A Dissonant Vision (01/09/06)
Privacy: Variations on the Theme of Liberty (01/11/06)
Debunking "Scientific Objectivity" (01/16/06)
More about Crime and Punishment: A Footnote (01/17/06)
The Fatal Naïveté of Anarcho-Libertarianism (01/28/06)
Recommended Reading about NSA's Surveillance Program (02/05/06)
Liberty, General Welfare, and the State (02/06/06)
Legalism vs. Liberty (02/07/06)
Time on the Cross, Re-Revisited (02/09/06)
Riots, Culture, and the Final Showdown (02/15/06)
Government's Role in Social Decline (02/16/06)
A Rant about Torture (02/16/06)
More Final(?) Words about Preemption and the Constitution (02/17/06)
Anarcho-Authoritarianism (02/18/06)
Apropos Academic Freedom and Western Values (02/23/06)
Monopoly and the General Welfare (02/25/06)
Sunstein and Executive Power (02/26/06)
Anti-Western Values in the West (02/28/06)
On Income Inequality (03/09/06)
The Adolescent Rebellion Syndrome (03/10/06)
Calling a Nazi a Nazi (03/12/06)
Trade, Government Spending, and Economic Growth (03/17/06)
The Meaning of Liberty (03/25/06)
Thomas Woods and War (03/31/06)
An Immigration Roundup (04/04/06, with links to later posts on the subject)
Two Heroes and a Blackguard (04/06/06)
The Causes of Economic Growth (04/08/06)
Charles Murray's Grand Plan (04/10/06)
Slippery Paternalists (04/13/06)
Let the Punishment Fit the Crime (04/14/06)
Courtly Doings (see the second item, on nullification by State courts, 04/20/06)
E Pluribus Unum? (04/23/06)
Moussaoui and "White Guilt" (05/03/06)
There's More to Income Than Money (05/03/06)
Science, Axioms, and Economics (05/06/06)
Nock Reconsidered (05/08/06)
The Harm Principle (05/11/06)
Footnotes to "The Harm Principle" (05/16/06)
Republicanism, Economic Freedom, and Charitable Giving (05/19/06)
The Harm Principle, Again (05/20/06)
Don't Tar My Nationalism with the Racism Brush (05/22/06)
The Indivisibility of Economic and Other Freedoms (05/23/06)
Rights and "Cosmic Justice" (05/29/06)
A Flawed Defense of Anarcho-Capitalism (06/02/06)
Mises on Liberty and the State (06/23/06)
Varieties of Libertarianism (07/01/06)
Liberty, Human Nature, and the State (07/08/06)

Don't Tar My Nationalism with the Racism Brush

I cannot resist sharing the comment that I just added to McQ's post about racism, over at QandO. McQ began by offering a couple of brief definitions of racism, both of which I found inadequate. He then managed to imply that tribalism and nationalism are merely forms of racism. And so I wrote that

I prefer this rather more complex definition:

Racism is the hatred of persons of a different race, simply because they are of that race. The hatred may be rationalized, and the rationalization may even have some factual basis (e.g., persistent differences in the distribution of IQ as measured by standardized tests), but the hatred precedes the rationalization. The hatred may arise because it helps the hater compensate (psychologically) for his own felt inadequacies, or because it "excuses" the hater’s behavior toward members of the hated race.

Racial hatred — along with its rationalizations and expressions of racial superiority — also may be learned, as one seeks solidarity with and approval by one’s kinsmen, peers, and acknowledged superiors.

But racism, at bottom, rests on hatred and the psychological needs served by that hatred.

That covers white-hating blacks, black-hating whites, etc. And it puts the horse of hatred before the cart of (compensatory) claims of superiority.

Tribalism and nationalism may have origins similar to those of racism. But that need not be the case, for tribalism and nationalism can be motivated by and serve positive ends. I believe, as do many (but not all) Americans, that the United States is superior to other nations in its promise of liberty, as given in the Declaration of Independence and the Constitution. The basis for my nationalism (and that of many Americans) is the belief that it is necessary for Americans to defend mutually that promise of liberty against its enemies, foreign and domestic.

Ho-Hum

Barr-oid Bonds has tied Babe Ruth's regular-season home run total of 714. Ruth, assisted only by his over-indulgence in food and drink, compiled his 714 home runs in 8,399 at-bats. In spite of steroids, it took Bonds 9,236 at-bats to hit 714 home runs. That's about two seasons' worth of additional at-bats to. Big deal.

P.S. (05/21/06): On September 30, 2004 ("Back to Baseball -- Hyping the Heroes"), I wrote:

Remember when Hank Aaron broke Babe Ruth's all-time home run record by hitting his 715th? Well, Ruth hit 714 in 8,399 official at-bats. By the time Aaron got to 714 home runs he already had more than 11,000 official at-bats.

Then there was Pete Rose eclipsing Ty Cobb's all-time record for base hits. Rose surpassed Cobb's record (4,191 hits) but it took him about 2,400 additional at-bats in which to do the trick. That's why Rose's lifetime batting average is only .303 to Cobb's .367.

Aaron hit 41 more home runs than Ruth in about eight seasons' worth of at-bats, and Rose "amassed" 65 more hits than Cobb in about four seasons' worth of at-bats.

Triple ho-hum.

The Harm Principle, Again

Today is the 200th anniversary of the birth of John Stuart Mill, author of the seminal essay, On Liberty, in Chapter 1 of which we find the lodestone of libertarianism, the harm principle:

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

I addressed the harm principle recently, in "The Harm Principle" and "Footnotes to the Harm Principle." Joe Miller of Bellum et Mores has done me the honor of commenting on "The Harm Principle" at his blog and in a post at Catallarchy, which post is an entry in a Mill-fest organized by Joe in honor of the Millian bicentennial.

What Joe has not done, in either of his commentaries on my post, is address my underlying objections to what I call "the superficial . . . interpretation of [Mill's] words by most adherents of 'liberalism'." Why superficial? The answer is found in my series "The Meaning of Liberty," which I incorporated by reference into my post, "The Harm Principle." Specifically, it is found in the installments entitled "Liberty as a Social Compact" and "Social Norms and Liberty," from which I quote at length:

Liberty arises from a social compact, it is not in our genes and does not flow from heaven like manna. The social compact -- in its simplest terms -- is this: Each of us may do as he or she pleases as long as what we do does not bring harm to others. But that formula (essentially John Stuart Mill's "harm principle") is misleadingly simple.

Liberty requires a consensus about harms and the boundaries of mutual restraint -- the one being the complement of the other. Agreed harms are to be avoided mainly through self-restraint. Societal consensus and mutual restraint must, therefore, go hand in hand.

Looked at in that way, it becomes obvious that liberty is embedded in society and preserved through order. There may be societally forbidden acts that, to an outsider, would seem not to cause harm but which, if permitted within a society, would unravel the mutual restraint upon which ordered liberty depends. . . .

What happens to self-restraint, honesty, and mutual aid outside the emotional and social bonds of family, friendship, community, church, and club can be seen quite readily in the ways in which we treat one another when we are nameless or faceless to each other. Thus we become rude (and worse) as drivers, e-mailers, bloggers, spectators, movie-goers, mass-transit commuters, shoppers, diners-out, and so on. Which is why, in a society much larger than a clan, we must resort to the empowerment of governmental agencies to enforce mutual restraint, mutual defense, and honesty within the society -- as well as to protect society from external enemies.

But liberty begins at home. Without the civilizing influence of traditional families, friendships, and social organizations, police and courts would be overwhelmed by chaos. Liberty would be a hollower word than it has become, largely because of the existence of other governmental units that have come to specialize in the imposition of harms on the general public in the pursuit of power and in the service of special interests (which enables the pursuit of power). Those harms have been accomplished in large part by the intrusion of government into matters that had been the province of families, voluntary social organizations, and close-knit communities. . . .

In sum, liberty is not an abstract ideal. Liberty cannot be sustained without the benefit of widely accepted -- and enforced -- social norms. A society that revolves around norms established within families and close-knit social groups is most likely to serve liberty.

Social norms can and do evolve. Moreover, in a society with voice and exit they will evolve toward greater liberty, rather than less, if exit is not mooted by legislative and judicial imposition of common norms across all segments of society. . . .

Social norms may evolve beneficially, but they are overthrown by legislators and judges to the detriment of society. . . .

Social norms may be consistent with the abstract idea of liberty -- that one may be left alone if one leaves others alone -- but they necessarily go beyond that generality to set specific limits on acceptable behavior. Behavior that strays beyond those limits is that which may lead to the subversion of liberty, either through the direct harms it may cause or through its subversive effects on social cohesion. (Such prospects underlie much of the opposition to legislatively or judicially imposed abortion rights and same-sex marriage, for example. . . .)

The point is that liberty and happiness cannot be found in the abstract; they must be found in the real world, among real people (or totally apart from them, if you're inclined to reclusiveness). Finding an acceptable degree of liberty and happiness in the real world means contending with many subsets of humankind, each with different sets of social norms. . . . It is unlikely that any of those sets of social norms affords perfect liberty for any one person. So, in the end, one picks the place that suits one best, imperfect as it may be, and makes the most of it. Sometimes one even tries to change it, but change doesn't always go in the direction one might prefer.

Think of the constrasting visions of liberty and happiness represented in a hippie commune and a monastic order. The adherents of each -- to the extent that they are free to leave -- can be happy, each in his and her own way. The adherents of each are bound to, and liberated by, the norms of the community, which set the bounds of permissible interaction among the adherents. Happiness is not found in the simplistic "harm principle" of John Stuart Mill; happiness is not found in a particular way of life; happiness is found in the ability to choose (and exit) a way of life that, on balance, serves a person's conception of happiness.

In sum, there is no escaping the fact that the attainment of something like liberty and happiness requires the acceptance of -- and compliance with -- some social norms that one may find personally distasteful if not oppressive. But it is possible -- in a large and diverse nation where each social group is free to establish and enforce its own norms -- to find a place that comes closest to suiting one's conception of liberty and happiness. The critical qualfication is that each social group must free to establish and enforce its own norms, as long as those norms include voice and exit.

I summarize at the end of the final installment, "Finding Liberty":

The bottom line of this series:

• Liberty suffers when a central government does more than make war, conduct foreign affairs, and regulate inter-State commerce for the sole purpose of ensuring against the erection of barriers to trade.

• Liberty suffers when a central government imposes rules on all at the instigation of the majority or coalitions of minorities.

• Liberty thrives when the rules that govern relations among the members of a group are agreed among the members of the group -- even if those rules vary from group to group. One group's liberty may be another group's strait-jacket, and vice versa.

It is easy to say that liberty consists of doing what we please as long as what we do does not bring harm to others. It is very hard to say what will and will not do harm. Socially evolved norms offer the best guide. We ignore and summarily reject those norms at great peril to liberty.

The simplistic definition of liberty -- do as you please but do no harm to others -- is superficially appealing. But it glides over the definition of harm, which may vary widely from group to group. Those who advocate abortion and same-sex marriage, for instance, may see those practices as harmless, but they fail to take into account the downstream effects of those practices on civility, without which life would be "solitary, poor, nasty, brutish, and short."

Those who wish to live the simplistic libertarian life of "do no harm to others" are welcome to it, if they can find it in a group of like-minded persons. There is no such thing as a neutral or objective definition of "harm." Simplistic libertarians merely have a particular conception of "no harm" that they should not be able to impose on others who disagree with that conception. I, for example, do not wish to be bound by the simplistic libertarians' blind adherence to the non-aggression principle, which is both fatuous and suicidal. (See this, this, this, this, and this.)

That is why it is so important to devolve most governmental power to small groups. Doing so enables exit and makes it more likely that leaving will be rewarded by finding membership in a more congenial group. (For that reason I would constrain the size and membership of each zone of liberty, creating more of them instead of allowing any one of them to grow beyond the size of a small village -- perhaps not exceeding a population of 150.)

In conclusion, true liberty can be found in these four rules:

1. A group's behavior must be governed by norms that have evolved among its members, rather than being forced on them through executive, legislative, or judicial edict. (Though legislation, if backed by a super-majority of the populace, may reflect evolved norms.)


2. The norms must be susceptible of further, unforced change.


3. Dissidents must be free to state their dissent openly, without fear of coming to physical harm at the hands of society or the state. (One must accept the possibility of disapproval, and even ostracism, but disapproval and ostracism are much less likely if one begins as an accepted member of a social group.)


4. Dissidents must be free to leave, without paying any penalty other than the cost of leaving.

What I have done is craft a richer version of the harm principle, a version that recognizes the realities of human co-existence, the difficulty of defining harm, and the possiblity (under the proper system of federalism) of finding one's niche, according to one's particular vision of the "good life" (which necessarily requires compromises involving myriad "goods" and "harms").

Joe nevertheless dismisses my richer version (if he ever really considered it) by saying that

the sorts of things that . . . [he] point[s] to as the dangers of permissive individual liberty [e.g., state sponsorship of abortion and same-sex marriage] are not at all obviously bad. Maybe it’s true that . . . dudes marrying dudes will destroy society. More likely, though, is that allowing . . . gay marriage will undermine one possible society, not the very possibility of society. But whether that one possible society is the one at which we all ought to aim is a matter of debate. Here’s Mill again:

On questions of social morality, of duty to others, the opinion of the public, that is, of an overruling majority, though often wrong, is likely to be still oftener right; because on such questions they are only required to judge of their own interests; of the manner in which some mode of conduct, if allowed to be practised, would affect themselves. But the opinion of a similar majority, imposed as a law on the minority, on questions of self-regarding conduct, is quite as likely to be wrong as right; for in these cases public opinion means, at the best, some people’s opinion of what is good or bad for other people; while very often it does not even mean that; the public, with the most perfect indifference, passing over the pleasure or convenience of those whose conduct they censure, and considering only their own preference.

It’s hard to imagine what could possible be more self-regarding than whom one marries. . . . This brings us to Mill’s “experiments in living.” . . . Mill would, at the very least, probably endorse something like the Massachusetts experiment with legalized gay marriage. If Massachusetts collapses as a result, then we’ll know better than to repeat that particular experiment. When, as I think likely, the great Massachusetts experiment ends with lots of gays and lesbians living happily together (and, more than likely, an almost equal number divorcing and living happily with someone else), well then there won’t be all that much reason for other states to resist following suit.

Close, Joe, but no cigar. First, there's the question of self-regarding conduct -- what it is and what it isn't. Joe doesn't address abortion, but abortion cannot be seen as self-regarding conduct unless one is willing to accept the propagandistic view that a fetus is "merely" part of a woman's body and not a human life. Even a simplistic interpretation of the harm principle might (should) lead one to conclude that abortion is wrong. (For much more, read this.) That is to say, the notion of self-regarding conduct -- like the harm principle -- is a misleadingly simple formulation that masks a plethora of difficult issues.

Joe confines himself to the seemingly more clear-cut examples of pornography (not my issue) and same-sex marriage. He dismisses my indictment of same-sex marriage -- which I indict on libertarian grounds (spelled out at length, here) -- by invoking self-regarding conduct (even though marriage is a social institution, not self-regarding conduct) and Mill's notion of "experiments in living."

The problem with "the great Massachusetts experiment" in same-sex marriage is this: A long-standing law, rooted in longer-standing social norms, has been overthrown not by the further evolution of those social norms but by four justices of the Massachusetts Supreme Judicial Court (Goodridge v. Department of Public Health), just as abortion was legalized throughout the United States by seven justices of the U.S. Supreme Court (Roe v. Wade), based in part on poor constitutional reasoning and in part on a bogus history of abortion in the United States.

It is true that both court decisions (and others of their ilk) overturned laws that were made by "mere" majorities of legislatures, but those laws, in fact, arose from evolved social norms -- unlike the decisions that overturned them. Moreover, whether "gays and lesbians liv[e] happily together" is not the issue. The issue is the effect of same-sex marriage on the societal cohesion that underlies liberty, and how the state's effective denigration of heterosexual marriage -- which is the central civilizing influence in our society -- will affect that social cohesion. Joe dismisses that possibility, but I cannot. As I say here,

I do not find it a coincidence that loud, loutish, crude, inconsiderate, rude, and downright foul behaviors seem to have become the norm since the the end of World War II. Such behaviors have risen in parallel with the retreat of most authority figures in the face of organized violence by "protestors" and looters; with the rise of political correctness; with the perpetuation (in deed if not word) of the New Deal and its successor, the Great Society; with the erosion of swift and sure justice in favor of "rehabilitation" and "respect for life" (but not for potential victims of crime); and with the legal enshrinement of infanticide and buggery as acceptable (and even desirable) practices.

People respond to signals. The state's signals are drowning out the signals that used to be transmitted primarily by voluntary social institutions: family, friendship, community, church, and club. (Again, go here for the full treatment.)

The disagreement between Joe and me is (I think) a disagreement about means, not ends. Joe rightly views the state as a threat to liberty, and so he celebrates those actions by the state that seem to be liberating because they comport with his reading of the harm principle. What he seems to overlook, or to credit insufficiently, is the dependence of liberty on civil society, and the dependence of civil society on evolved social norms. I, too, view the state as a threat to liberty, in many ways (e.g., through taxation and regulation). But the state also threatens liberty when it undermines civil society by overthrowing laws that reflect evolved social norms. The only social norms that the state should overthrow, for the sake of liberty, are those that deny voice and exit.

Recommended reading:

"Thoroughly Modern Mill," by Roger Scruton at OpinionJournal
"Happily Burying Bentham," by Max Borders at TCS Daily
"The Family vs. the State," by Arnold Kling at TCS Daily

More Clarity about Immigration

From Ann Coulter (of course). See also " An Immigration Roundup."

Republicanism, Charitable Giving, and Economic Freedom

Thanks to Mike Rappaport (The Right Coast), I found the most recent edition of the Economic Freedom Index for each of the 50 United States. I then created this graphic:The lower the index, the greater the degree of economic freedom enjoyed by the residents of a State.

It's not surprising to find that Republican-leaning States enjoy more economic freedom than Democrat-leaning States. Whatever Bush is -- or isn't -- with respect to "big government," persons who vote Republican tend to favor a greater degree of laissez-faire than persons who vote Democrat. (In fact, Bush's record, properly interpreted, is on a par with that of other post-Great Society presidents. It isn't worse, as some pundits would have you believe.)

Residents of Red States not only enjoy more economic freedom (e.g., lower tax rates), they also are more open-handed than residents of Blue States when it comes to charity. That is, they not only talk about the value of voluntarism, they do something about it. So-called "Republican greed" isn't "greed," it's a legitimate desire to decide for one's self how best to apply the fruit's of one's labor. Democrats would nevertheless persist in calling Republicans "greedy," but by the standard of charitable giving, "greed" is a Democrat trait:Details and sources are given in this post, where I wrote:

[G]iven the same tax burden -- Red States outstrip Blue States in charitable giving.... [T]here is a strong negative relationship between taxes and charitable giving. It doesn't show up in the data for the Blue States, which are almost uniformly parsimonious when it comes to charitable giving, but it's definitely there in the case of the Red States. For all States (with the exception of Wyoming, the far "outlier" at the top of the graph), a linear regression yields a one-to-one negative relationship between the tax burden and charitable giving; that is, for every 1 percentage point rise in the tax burden, after-tax charitable giving drops by 1 percentage point.

I draw two conclusions:

• There is a significant, positive relationship between Republicanism and charitable giving....
  

• Taxes crowd out charity (no surprise)....

Economists out of Touch with Reality

Steve Burton, writing at Right Reason, has much to say about a survey by the Pew Hispanic Center of the beliefs and attitudes of Hispanic Americans. Here's a sample:

Those surveyed overwhelmingly prefer "higher taxes to support a larger government that provides more services" - by contrast to American whites, who, by an equally overwhelming margin, prefer "lower taxes and...a smaller government that provides fewer services."

But I already knew that, as did most persons who are attuned to reality. As I say here,

It is stupid to let people enter the U.S. if the result of doing so is an expansion of the regulatory-welfare state, both directly -- for the benefit of immigrants -- and indirectly -- as a result of the votes those immigrants cast (eventually) for politicians who seek to expand the regulatory-welfare state. . . .

Immigration is an economic issue, but a far more complex issue than the one depicted by most economists, who omit the economic implications of the politics of immigration.

Most academic economists -- that is to say, "intellectuals" -- nevertheless ignore the economic implications of unfettered immigration. Over-educated idiots!

A "Taste" for Segregation

It isn't only whites who have a "taste" for segregation:

Standard intuition suggests that residential segregation in the United States will decline when racial inequality narrows. In this paper, we hypothesize that the opposite will occur. We note that middle-class black neighborhoods are in short supply in many U.S. metropolitan areas, forcing highly educated blacks either to live in predominantly white high-socioeconomic status (SES) neighborhoods or in more black lower-SES neighborhoods. Increases in the proportion of highly educated blacks in a metropolitan area may then lead to the emergence of new middle-class black neighborhoods, causing increases in residential segregation. We formalize this mechanism using a simple model of residential choice that permits endogenous neighborhood formation. Our primary empirical analysis, based on across-MSA evidence from the 2000 Census, indicates that this mechanism does indeed operate: as the proportion of highly educated blacks in an MSA increases, so the segregation of blacks at all education levels increases. Time-series evidence provides additional support for the hypothesis, showing that an increase in black educational attainment in a metropolitan area between 1990-2000 significantly increases segregation. Our analysis has important implications for the evolution of both residential segregation and racial socioeconomic inequality, drawing attention to a negative feedback loop likely to inhibit reductions in segregation and racial inequality over time.

Source: Abstract of "Separate When Equal? Racial Inequality and Residential Segregation," October 2005; Yale Economic Applications and Policy Discussion Paper No. 9.

Blacks may segregate themselves from whites, but whites aren't supposed to indulge the same preference.

Forced integration under the rubric of "equal housing opportunity" usurps property rights in the name of "equality" and denies freedom of association to certain citizens because of the color of their skin. Access to housing should be like access to a private club; if you're excluded from all-female club because you're male or from a singing club because you can't carry a tune, too bad. Find another club or start your own.

(Thanks to Stuart Buck of The Buck Stops Here for the pointer.)

Definition of "Intellectual"

An "intellectual" is someone who is fascinated by abstractions, and values those abstractions above reality. Indeed, he has lost sight of important aspects of reality because of his fascination with abstractions.

Footnotes to "The Harm Principle"

Joe Miller (Bellum et Mores) notes the preceding post ("The Harm Principle") and observes that my variation on John Stuart Mill's famous dictum "doesn't sound much like the Mill that I know and love." It is not the Mill whom Joe knows and loves -- and it is (as Joe suspects) an oblique (and dashed-off) reply to Joe's discussion of my post on gay marriage. To fully appreciate my view of the harm principle, it is necessary to read my multi-part series, "The Meaning of Liberty," especially the installments "Liberty as a Social Compact" and "Social Norms and Liberty," and then to delve my favorite posts, especially those under the headings of Libertarianism and Other Political Philosophies and Self-Ownership. I await Joe's explication of the harm principle, which he promises to deliver in a post later this week at Catallarchy.

My objection to the Millian version of the harm principle isn't to Mill's words but to the superficial and self-serving interpretation of those words by most adherents of "liberalism" (i.e., pseudo-anarchist libertarians and pseudo-liberal statists whose embrace of "liberty" is limited to such politically correct causes as pot-smoking, abortion-inducing, and gay-loving). The fact is that we live in a society in which government wields great power and influence over our lives. When government actively promotes such fundamentally anti-social practices as abortion and gay marriage -- practices that mock respect for life and family -- it does far more than license those who wish to engage in such practices. It actively encourages those practices.

I do not find it a coincidence that loud, loutish, crude, inconsiderate, rude, and downright foul behaviors seem to have become the norm since the the end of World War II. Such behaviors have risen in parallel with the retreat of most authority figures in the face of organized violence by "protestors" and looters; with the rise of political correctness; with the perpetuation (in deed if not word) of the New Deal and its successor, the Great Society; with the erosion of swift and sure justice in favor of "rehabilitation" and "respect for life" (but not for potential victims of crime); and with the legal enshrinement of infanticide and buggery as acceptable (and even desirable) practices.

Given that government isn't going away, we can either use its power and influence to destroy society or to reinforce the mores that are essential to civil society. There appears to be no middle ground on which to stand. Those who advocate the "almost anything goes" interpretation of Mill's harm principle know not what they do. But what they do (and have done) is make possible the erosion (and possible destruction) of civil society. They shall reap what they sow, but so shall we all. And there's the pity.

The Harm Principle

The harm principle is a foundation stone of liberal thought. (I mean "liberal" in the classical, libertarian sense, not in the modern, statist sense.) John Stuart Mill articulated the harm principle in Chapter 1 of On Liberty:

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

Many proponents of the harm principle read it narrowly, as if the only harm that one may do to another is immediate or predictable (as in the case of pollution, for example). But there is more to liberty than allowing everyone to do his or her "own thing" as long as it doesn't result in immediate or predictable harm to others. We must take account of the harm that might result in the longer run from actions that are likely to strain and sunder the bonds of trust that make it possible for a people to coexist civilly. It is those bonds of trust -- forged by shared customs and moral principles -- that enable the members of society to pursue happiness with little or no fear of -- or the need to prepare for and defend against -- predations by their fellows.

It is from this deeper reading of the harm principle that I have come, in the past few years, to reject the dominant "almost anything goes" strain of libertarianism that reflexively embraces abortion and same-sex marriage, among other anti-social practices. To those of you who wish to understand my seemingly paradoxical stance on such issues -- or who entertain doubts about the wisdom of the "almost anything goes" orthodoxy -- I commend these posts (and those linked therein):

The Meaning of Liberty
Law, Liberty, and Abortion
Libertarianism, Marriage, and the True Meaning of Family Values
The End of Women's "Liberation" and the Return of Patriarchy?

All related posts (through April 28) are collected here, under the heading "Self-Ownership."

Justice Can Be Idiotic

From the news archive of the Richmond, Virginia, based law firm of McGuireWoods:

The Fourth Circuit Court of Appeals late last month ruled that an employee whose job was eliminated during a corporate consolidation while he was on leave under the Family and Medical Leave Act (FMLA) did not have the right to be reinstated when his position would have been eliminated anyway even if he had not been on FMLA leave.

The plaintiff . . . had a history of numerous approved medical leaves, including FMLA leave. Hired in 1994 and promoted in 1999, he took his last leave in 2003. While on leave, the defendant employer advised the employee that his position was to be eliminated as part of a consolidation. The defendant encouraged him to apply for the jobs newly created by the consolidation, as well as other available positions. The plaintiff decided not to apply and was terminated upon his return from FMLA leave. The plaintiff sued, and the district court granted summary judgment for the employer.

The Fourth Circuit affirmed. . . .

The McGuireWoods release goes on to say that

. . . the court held that FMLA does not create any right to restoration. The court held that employees are not entitled to return to their former position when the employer “would have discharged the employee in any event regardless of the leave.” In reaching its decision, the court reasoned that allowing for guaranteed restoration would create unreasonable results, such as requiring employers to retain employees who performed inadequately prior to taking their leave. . . . A circuit split remains on the issue.

In sum, your employer tells you that you're going to be fired. Instead of accepting your employer's help in finding a new job, you take leave. You then sue the employer when you are fired. And some courts rule in your favor. Idiotic.

The district court did the right thing in granting summary judgment to the employer. The Fourth Circuit did the right thing in affirming the summary judgment. But at least one other circuit, ruling in parallel case(s), has found for the employee(s). So it's up to the U.S. Supreme Court to resolve the split. And until it does, federal courts outside the Fourth Circuit will be able to rule in favor of employees in such cases. Idiotic.

Gay Marriage and the Future of America

Steve Dillard writes at Southern Appeal that the push to legalize same-sex marriage

is no longer about tolerance, it is about forcing everyone to agree that homosexuality is perfectly normal. And if your religion tells you otherwise, well, the government will just have to pummel that “bigotry” out of you.

Dillard links to an article at Catholic News Agency, which summarizes a piece by Maggie Gallagher (president of the Institute for Marriage and Public Policy, or IMAPP) in the May 15 issue of The Weekly Standard. According to the CNA article,

[t]he recent conflict over gay adoptions in Boston and the decision of Catholic Charities in that city to withdraw from the adoption business is only one sign of the huge cultural battle to come between religious liberty and sexual liberty, Gallagher suggests. Gay marriage has already been legalized in Massachusetts.

People who favor gay rights face no penalty for speaking their views, but can inflict a risk of litigation, investigation, and formal and informal career penalties on others whose views they dislike,” Gallagher writes. . . .

“Precisely because support for marriage is public policy,” she writes, “once marriage includes gay couples, groups who oppose gay marriage arel ikely to be judged in violation of public policy, triggering a host of negative consequences, including the loss of tax-exempt status.” . . .

Among a number of legal experts, Gallagher interviews Marc Stern, general counsel for the American Jewish Congress. . . .

He says same-sex marriage will affect religious educational institutions in at least four ways: admissions, employment, housing, and regulation of clubs.

In addition, he foresees future conflict with the law in regard to licensing, as well as psychological clinics, social workers, marital counselors, etc.

He also warns that the expression of opposition to gay marriage in the corporate world will not be suppressed by gay advocates but by corporate lawyers,“who will draw the lines least likely to entangle the company inlitigation,” Gallagher writes. . . .

Gallagher also interviewed Robin Wilson, an expert in family and health care law, who . . . believes that public-support arguments may be advanced to compel churches to participate in same-sex marriage or risk losing their tax-exempt status.

Wilson also points out that the First Amendment did not prevent religious hospitals from being punished for refusing to perform abortions, once abortion became a constitutional right. . . .

Gallagher also interviewed Georgetown law professor Chai Feldblum. . . .

Most of the time, the need to protect the dignity of gay people will justify burdening religious belief, Feldblum argues. But that does not make it right to pretend these burdens do not exist or do not matter.

While the burdens must be considered each time a law is passed, she said she believes sexual liberty should win out in most cases “because that's the only way that the dignity of gay people can be affirmed in any realistic manner.”

Feldblum's view, I fear, is likely to prevail. The establishment of "gay rights" -- especially same-sex marriage -- is being used and will be used as an excuse to further diminish religious freedom, freedom of association, and freedom of speech. It will diminish the great good done by religious insitutions in this country, by undermining their charitable works and civilizing influence.

And it will diminish the great good that is done by the institution of heterosexual marriage (in spite of its imperfections). When I faced the reality that the state will regulate marriage (as opposed to the cop-out position that the state ought not to regulate marriage), I concluded that

the kind of marriage a free society needs is heterosexual marriage, which . . . is a primary civilizing force. I now therefore reject the unrealistic . . . position that the state ought to keep its mitts off marriage. I embrace, instead, the realistic, consequentialist position that society -- acting through the state -- ought to uphold the special status of heterosexual marriage by refusing legal recognition to other forms of marriage. That is, the state should refuse to treat marriage as if it were mainly (or nothing but) an arrangement to acquire certain economic advantages or to legitimate relationships that society, in the main, finds illegitimate.

The alternative is to advance further down the slippery slope toward societal disintegration and into the morass of ills which accompany that disintegration. (We've seen enough societal disintegration and costly consequences since the advent of the welfare state to know that the two go hand in hand.) The recognition of homosexual marriage by the state -- though innocuous to many, and an article of faith among most libertarians and liberals -- is another step down that slope. When the state, through its power to recognize marriage, bestows equal benefits on homosexual marriage, it will next bestow equal benefits on other domestic arrangements that fall short of traditional, heterosexual marriage. And that surely will weaken heterosexual marriage, which is the axis around which the family revolves. The state will be saying, in effect, "Anything goes. Do your thing. The courts, the welfare system, and the taxpayer -- above all -- will pick up the pieces." And so it will go.

Moreover, the undermining of heterosexual marriage will cause the fertility rate (number of births per woman per year) to decline, given the high correlation between marriage and reproduction. (In spite of the 1960s and women's "liberation," two-thirds of births in the U.S. are to married women.) Replenishment of the population requires a fertility rate (births per woman in a lifetime) of 2.1. The projected rate for the U.S. in 2010 is just 2.1, with this breakdown by race and ethnicity: white -- 2.1; black -- 2.1; American Indian, Eskimo, Aleut -- 2.5; Asian and Pacific Islanders -- 2.3; Hispanic (all races) -- 2.8. (Sources: Statistical Abstract of the United States, 2006, Section 2; Tables 77 and 78 for definition of fertility rate and projected fertility rates, Tables 80 and 82 for births to unmarried women.) The bit of good news is that official statistics show that the abortion rate in the U.S. declined from 1990 through 2002 (see Table 93, Stat. Abs., 2006, Section 2), and the decline seems to be continuing. (Thanks to my son for that last link.)

Why is the fertility rate so important? When a population does not replace itself -- especially the more able components of a population -- economic growth slows. (It is a falsehood perpetrated by the Left that population equals poverty. In an technologically advanced country with generally free markets -- such as the United States -- the opposite is true. Go here, and read point 6. Also see this.) Slower economic growth makes it harder to support the growing propotion of the population that is elderly, especially when the elderly rely heavily on transfer payments from workers, as is the case in the U.S.

And there's more. As the European interviewee in this Zenit News Agency article says,

[t]he work force diminishes and the active population ages with consequences on the capacity of innovation and competitiveness [my point, above: ED]. This is the background of the problem that Europe is already paying for, in relation, for example, to the United States, where instead the rate of fertility is greater.

There is also a cultural and social problem that has to do with immigration: Though the latter is necessary to replace the labor force in decline, the rate of immigrants tends to increase rapidly, especially among young people, making more difficult the integration and transmission of the culture of the host country. Often, xenophobia arises as an angry reaction to this situation [or as a rational reaction to the likely political and economic consequences of indiscriminately admitting aliens: ED].

Let's not forget moreover the consequences on security: A nation without children is a nation that does not even have a desire to fight for its own values and freedom -- so much so that it believes it is not worthwhile to transmit them. And, because of this, it prepares to be a land of conquest for emerging civilizations.

(Thanks to my daughter-in law for the link to the Zenit story.)

The prospect of a "European" America should be frightening to every American outside academia, Hollywood, Manhattan, and other Leftist enclaves. The U.S. has to go a bit further (but not far) down the slippery slope to Europeanism. The proponents of "gay rights" -- and especially of gay marriage -- will push us down that slope if we let them. What lies down that slope? Here's Mark Steyn to explain:

To those on the American left who find Europe more “sophisticated”, you’re right: it’s sophisticated in the sense that a belle époque Parisian boulevardier is sophisticated – outwardly dapper and worldly, inwardly eaten away by syphilis and gonorrhea. It’s only a question of how many others the clapped-out bon vivant infects before his final collapse.

That’s a harsh judgment but not an overstated one. There are many agreeable aspects of old Europe – old buildings, good food, foxy looking women who dress to show themselves off. But underneath the surface everything is collapsing. The differences between America and Europe in the 21st century are nothing to do with insensitive swaggering Texas cowboys. Indeed, they’re nothing to do with Iraq, Kyoto, the International Criminal Court, or any other particular issue. They’re not tactical differences, they’re conceptual. They’re about how each side of the Atlantic views the world. Most nations in Europe can never again be American allies – not because of anything America’s done, but because of a huge number of profound changes, voluntary and not so, upon which the Continent is embarked:

1) It’s changing in its formal structure, as its elites merge their countries into one pan-European political entity.

2) It’s changing economically, as its people decline and age and its cradle-to-grave welfare systems become unsustainable.

3) It’s changing demographically, with the importation of large unassimilated Muslim populations that make it all but impossible for political leaders to be seen supporting America or Israel.

4) It’s changing in its political tempo, as populations hostile to European integration look for neo-nationalist parties to express their discontent.

Where will this end? Some European commentators got very irritated in 2003 when Denis Boyles of America’s National Review appeared to dismiss the Continentals as “cockroaches”. They were right to be ticked. The Europeans are not cockroaches. The cockroach is the one creature you can rely on to come crawling out of the rubble of the nuclear holocaust. Whereas the one thing that can be said with absolute confidence is that the Europeans will not emerge from under their own rubble.

A harsh characterization and prognosis? Perhaps a bit, but not by much. Given the present state of Europe, my money's on Steyn.

Frédéric Bastiat wrote about "what is seen and what is not seen." The "seen" side of "gay rights" is less overt discrimination against homosexuals and the enjoyment by homosexuals of privileges (not rights) formerly withheld from them. The "not seen" side of "gay rights" is the general diminution of most Americans' freedoms and prosperity. But that diminution soon will become quite visible at the rate things are going.