It's always good for a concerned citizen to seriously question the claims of any politician, but it can be pretty comical when other "interested parties" critique the political opposition. I wanted to give a good example of how I would look at a news commentary (passion included). I thought this one my cousin sent me recently was a good one to look at:
http://www.foxnews.com/story/0,2933,501968,00.html
It's an interesting commentary on Obama's State of the Union address by Oliver North. Most of it is good critique on the economics of Obama's claims. However, his own, more subtle, ideological spin really irks me—especially the one about the railroads. It’s fitting for him (and any democrat also) to smooth over the party’s favorite corporate subsidies by simply stating that, at the end of the day, a corporation that accomplished something was owned by private actors (as Ollie here shamelessly did about the railroads in the 1800s.)!!! Fact is the Transcontinental Railroad was heavily subsidized, and it’s one of the most shameful episodes in American history. (In this case, his request that Obama get his facts straight needs to apply to himself equally.) I’m not sure where in the world he got the idea that the federal government’s role in the transcontinental railroad was just a matter of eminent domain seizures. Does his idea of “imminent domain” simply consist of the payment of $48,000 (over a million in today’s dollars) per mile of (shoddy) railroad laid, which is what the Pacific Railway Act of 1862 provided for? WOW! What a stretch of the use of a term!
Our “great president,” Lincoln (appropriately and permanently enshrined in the special interest swamp of Washington), was one of the scoundrels that supported this unconstitutional corporate welfare scheme setting the stage for our modern corporatist socialism free-for-all. There’s simply no sound economic reason for the government to subsidize any business undertaking (including for transportation infrastructure), and there’s even less reason to do so morally. Morally speaking, it's simply stealing through government force. Economically, if something has to be subsidized, it is an inefficient use of resources. So much for Ollie North's supposed Republican free market beliefs.
And, oh, his absurd neo-con-artist plug for continued/expanded "defense" (really offense) spending really takes the cake too. Love the silly either/or argument on that one, and the usual exaggeration of the threat. I’m still waiting for the neo-cons to announce a "war on automobile driving" or a Department of Homeland Toilet Safety, because driving a car or even drowning in a toilet are greater threats in terms of likelihood of death than dying from a terrorist attack, although Bush’s policies are vastly increasing that likelihood. You certainly wouldn’t know that from your tax bill, nor that of our children's or our children's children's.
Sunday, March 1, 2009
Sunday, January 18, 2009
Bin-Laden Sums Up Well the Bush "War on Terror" Policy
"It is easy for us to provoke and bait this administration.
All that we have to do is to send two mujahidin
[jihadists] to the furthest point east to
raise a piece of cloth on which is written al-
Qaida, in order to make the generals race there
to cause America to suffer human, economic,
and political losses without their achieving for
it anything of note other than some benefits
for their private companies . . . So we are continuing
this policy in bleeding America to the
point of bankruptcy. . . . That being said . . .
when one scrutinises the results, one cannot
say that al-Qaida is the sole factor in achieving
those spectacular gains. Rather, the policy of
the White House that demands the opening
of war fronts to keep busy their various corporations—
whether they be working in the field
of arms or oil or reconstruction—has helped
al-Qaida to achieve these enormous results.
And so it has appeared to some analysts
and diplomats that the White House and us
are playing as one team towards the economic
goals of the United States, even if the intentions
differ. . . . for example, al-Qaida spent
$500,000 on the event [the 9/11 attacks], while
America, in the incident and its aftermath,
lost—according to the lowest estimate—more
than $500 billion. Meaning that every dollar
of al-Qaida defeated a million dollars by the
permission of Allah, besides the loss of a huge
number of jobs."
The above is quoted in Lustick, Ian S. "Our Own Strength Against Us: The War On Terror as a Self-Inflicted Disaster." Independent Policy Report. The Independent Institute. April, 2008. (Available at: http://www.independent.org/pdf/policy_reports/2008-04-04-lustick.pdf)
This speech was broadcast on Al-Jazeera television on November 1, 2004. I haven't found a current online video version of it yet.
All that we have to do is to send two mujahidin
[jihadists] to the furthest point east to
raise a piece of cloth on which is written al-
Qaida, in order to make the generals race there
to cause America to suffer human, economic,
and political losses without their achieving for
it anything of note other than some benefits
for their private companies . . . So we are continuing
this policy in bleeding America to the
point of bankruptcy. . . . That being said . . .
when one scrutinises the results, one cannot
say that al-Qaida is the sole factor in achieving
those spectacular gains. Rather, the policy of
the White House that demands the opening
of war fronts to keep busy their various corporations—
whether they be working in the field
of arms or oil or reconstruction—has helped
al-Qaida to achieve these enormous results.
And so it has appeared to some analysts
and diplomats that the White House and us
are playing as one team towards the economic
goals of the United States, even if the intentions
differ. . . . for example, al-Qaida spent
$500,000 on the event [the 9/11 attacks], while
America, in the incident and its aftermath,
lost—according to the lowest estimate—more
than $500 billion. Meaning that every dollar
of al-Qaida defeated a million dollars by the
permission of Allah, besides the loss of a huge
number of jobs."
The above is quoted in Lustick, Ian S. "Our Own Strength Against Us: The War On Terror as a Self-Inflicted Disaster." Independent Policy Report. The Independent Institute. April, 2008. (Available at: http://www.independent.org/pdf/policy_reports/2008-04-04-lustick.pdf)
This speech was broadcast on Al-Jazeera television on November 1, 2004. I haven't found a current online video version of it yet.
Friday, November 14, 2008
Prop. 8 In re Marriage Decision had Totalitarian Implications: Do You Really Have a Right to my Conscience?
As I have expressed in an earlier writing, I am saddened and amazed at the intellectual poverty of the “arguments” being expressed against Proposition 8, the recent narrowly-passed California proposition that preserves the traditional, heterosexual, child-centric definition of marriage by placing it in the California Constitution. To be fair, there was certainly a bit of intellectual poverty on both sides of the controversy. However, I am the most sorrowful that nearly half the citizenry was agreeing with a blatantly totalitarian law that calls into question the constitutional rights of literally all Californians, passed by an unaccountable aristocracy, and for apparently no good reason.
As you can see, I am not the type to mince words. While you may be tempted to turn your mind off now with such “harsh” language, I am manifestly not engaging in mere hyperbole. Come, now, let us reason together.
If I were to catalogue some of the monstrously false and/or misleading statements made by a whole range of otherwise intelligent individuals (some of them, shamefully, California public officials) about Prop. 8, I would, at this point, have to write an encyclopedia. The controversy continues to rage, often ending up in the streets with protests by people from all walks of life, all based on the idea that Prop. 8 destroys the equal rights of homosexuals.
Add to the confusion the blatantly (and apparently intentionally) misleading ballot language on Prop. 8 which said that the measure “eliminates the right of same-sex couples to marry,” and couple that with the very low likelihood that most Californians would research the issue exhaustively, and you’ve got a lot of angry, hot-headed, and misled people. It was a brilliant political move by California Attorney General Jerry Brown, allowing him (and the state of California who stood to profit from increased marriage license revenue) to rely on ignorance of the issue by implying, falsely, that rights and privileges already granted to homosexual couples were being removed by the measure.
Though I hate to embarrass so many whose passions are engaged in the quite noble cause of equality, I’m sad to announce that they are completely, utterly, and totally mistaken to think that Proposition 8 could even remotely be seen as attacking the civil rights of homosexuals—at least not in any traditional sense of a “right.”
Let’s back up a bit to the actual origins of Prop. 8. Proposition 8 was a ballot initiative brought forward by marriage traditionalists in response to the California Supreme Court’s May 2008 ruling known as In re Marriage Cases. In this landmark case, the Court openly acknowledged that the question at issue in the case had absolutely nothing to do with existing substantive rights and privileges of same-sex couples at all, and that same-sex “domestic partnership” and heterosexual “marriage” were essentially the same relationship under the law. Rather the question at issue was whether “the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.”
In other words, the only question the Court was considering was whether or not merely the use of the word “marriage” by the state of California in regards to heterosexual relationships without its also being used in regard to homosexual relationships violates the constitutional rights of homosexuals. The answer, according to the Court was an astonishing yes! Somehow these Justices decided that the supreme law of California not only contains fundamental rights involving marriage (which it doesn’t, and you can check it for yourself), but that it also gives themselves the right to utilize officially-recognized words and change word definitions (Noah Webster is rolling over in his grave) in the interest of “equal protection of the laws.” The right thus created also implied, to the court, a further, even more disturbing right:
" One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of 'marriage' exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect." (In re Marriage Cases, California Supreme Court, 2008. The text of the decision is available at: http://www.courtinfo.ca.gov/opinions/archive/S147999.PDF.)
Wow! This is truly an amazing “right.” Isn’t it wonderful sounding? It has such a beautiful ring to it. Imagine a world in which everyone is accorded dignity and respect, excepting, of course, those barbarians who don’t give dignity and respect voluntarily (who, by the way, must be punished!). And that’s the heart of the matter. Supposing for a moment that such a right actually did exist for any one group (equal protection of the laws notwithstanding) or even all Californians. How does the state propose to enforce a right to be “accorded dignity and respect”? The answer, like everything with government, is by force or threat of force. There is no other means. Such force would be a direct attack on conscience, since according dignity and respect to others arises from the individual mind and its attitudes and beliefs. I can’t wait for someone to scream “you will accord me dignity and respect, or I’m going to call the cops!” It seems those who support endless rights proliferation are running out of rights when those “rights” are such a blatant attack on the rights of others as this is, a fact, by the way, which disqualifies it as a right.
With such a blatantly totalitarian “right” having actually been called into existence (out of thin air) by the Supreme Court of California, is it any wonder that marriage traditionalists, as well as more vigilant civil libertarians who understood the ruling, had to choose to protect their conscience, including such things as the right to continue to believe and practice their own religious doctrine, the right to excuse one’s children from state-mandated "sensitivity" training in school, or even the right to present scientific findings in the future about the positive outcomes of heterosexual parenting? Because of the California Supreme Court’s ruling, the charge repeated by No on Prop. 8 supporters that it was false to claim that there are other civil rights at stake in the matter is patently false. Read those words again! The Supreme Court actually said that homosexual couples had a right to be accorded dignity and respect. Other states and countries where homosexual marriage has been introduced have invariably been accompanied by blatant attacks of conscience, and, as I have demonstrated, the Supreme Court of California was explicitly declaring war. The logic is undeniable: If a Court is invoking a right, it must only be to protect that right, and protecting that right, in this case, means forcing the conscience of people.
Therefore, far from attacking anything that could possibly be called a “right” that homosexuals possess, Prop. 8 supporters were simply preserving a whole list of other rights that the California Supreme Court had explicitly declared war on. Despite the outrageousness of an illegal, unconstitutional judicial attack on marriage traditionalists, Prop. 8 supporters chose to protect their conscience in a very straightforward and magnanimous way. Nobody went raging after the equal rights that homosexual couples had already gained through representative democracy. (The Supreme Court admitted that "domestic partnership" and "marriage" were equivalent under the law.) Instead, marriage traditionalists simply placed a word, namely “marriage,” outside of the reach of the government in the constitution, so that government social engineers could not force people’s conscience on the use of that word. The effect of this was to simply restore an important compromise between marriage traditionalists and gay rights activists that had already been reached through representative democracy and which the California Supreme Court had absolutely no lawful basis or legal ability to overthrow.
In a remarkable and brave display of civility and a sadly rare understanding of the actual policy issues behind Prop. 8, none other than Sir Elton John himself had this to say about the gay marriage controversy in California:
"I don't want to be married. I'm very happy with a civil partnership. If gay people want to get married, or get together, they should have a civil partnership. The word 'marriage,' I think, puts a lot of people off. You get the same equal rights that we do when we have a civil partnership. Heterosexual people get married. We can have civil partnerships." (Quoted in USA Today online at http://www.usatoday.com/life/people/2008-11-12-elton-john_N.htm.)
I invite all the protesters to go home and check the facts on what the actual issue consists of, as well as strengthen their understanding of what a right is. I’m afraid they have been on the obviously wrong side of this battle. I invite them to join me, with all of their emotional fervor, in protecting rights for everyone, not just the false “right to be esteemed and respected" that was illegally read into the California Constitution outside of its lawful amendment process. I admit that many of them simply were not aware of the facts, but I now seek their kind help getting the Court off my conscience (as well as theirs) by supporting the democratic process that has already equalized the rights of homosexual partners through lawful means. I have no desire to deny anyone rights that they actually have. I simply deny them rights that they literally can’t have by the very definition of a right. I support Prop. 8 most fundamentally because I openly deny the power of any government on earth to enforce a right to be esteemed or respected. Deny totalitarian attacks on conscience categorically by supporting Proposition 8. End of story.
As you can see, I am not the type to mince words. While you may be tempted to turn your mind off now with such “harsh” language, I am manifestly not engaging in mere hyperbole. Come, now, let us reason together.
If I were to catalogue some of the monstrously false and/or misleading statements made by a whole range of otherwise intelligent individuals (some of them, shamefully, California public officials) about Prop. 8, I would, at this point, have to write an encyclopedia. The controversy continues to rage, often ending up in the streets with protests by people from all walks of life, all based on the idea that Prop. 8 destroys the equal rights of homosexuals.
Add to the confusion the blatantly (and apparently intentionally) misleading ballot language on Prop. 8 which said that the measure “eliminates the right of same-sex couples to marry,” and couple that with the very low likelihood that most Californians would research the issue exhaustively, and you’ve got a lot of angry, hot-headed, and misled people. It was a brilliant political move by California Attorney General Jerry Brown, allowing him (and the state of California who stood to profit from increased marriage license revenue) to rely on ignorance of the issue by implying, falsely, that rights and privileges already granted to homosexual couples were being removed by the measure.
Though I hate to embarrass so many whose passions are engaged in the quite noble cause of equality, I’m sad to announce that they are completely, utterly, and totally mistaken to think that Proposition 8 could even remotely be seen as attacking the civil rights of homosexuals—at least not in any traditional sense of a “right.”
Let’s back up a bit to the actual origins of Prop. 8. Proposition 8 was a ballot initiative brought forward by marriage traditionalists in response to the California Supreme Court’s May 2008 ruling known as In re Marriage Cases. In this landmark case, the Court openly acknowledged that the question at issue in the case had absolutely nothing to do with existing substantive rights and privileges of same-sex couples at all, and that same-sex “domestic partnership” and heterosexual “marriage” were essentially the same relationship under the law. Rather the question at issue was whether “the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.”
In other words, the only question the Court was considering was whether or not merely the use of the word “marriage” by the state of California in regards to heterosexual relationships without its also being used in regard to homosexual relationships violates the constitutional rights of homosexuals. The answer, according to the Court was an astonishing yes! Somehow these Justices decided that the supreme law of California not only contains fundamental rights involving marriage (which it doesn’t, and you can check it for yourself), but that it also gives themselves the right to utilize officially-recognized words and change word definitions (Noah Webster is rolling over in his grave) in the interest of “equal protection of the laws.” The right thus created also implied, to the court, a further, even more disturbing right:
" One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of 'marriage' exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect." (In re Marriage Cases, California Supreme Court, 2008. The text of the decision is available at: http://www.courtinfo.ca.gov/opinions/archive/S147999.PDF.)
Wow! This is truly an amazing “right.” Isn’t it wonderful sounding? It has such a beautiful ring to it. Imagine a world in which everyone is accorded dignity and respect, excepting, of course, those barbarians who don’t give dignity and respect voluntarily (who, by the way, must be punished!). And that’s the heart of the matter. Supposing for a moment that such a right actually did exist for any one group (equal protection of the laws notwithstanding) or even all Californians. How does the state propose to enforce a right to be “accorded dignity and respect”? The answer, like everything with government, is by force or threat of force. There is no other means. Such force would be a direct attack on conscience, since according dignity and respect to others arises from the individual mind and its attitudes and beliefs. I can’t wait for someone to scream “you will accord me dignity and respect, or I’m going to call the cops!” It seems those who support endless rights proliferation are running out of rights when those “rights” are such a blatant attack on the rights of others as this is, a fact, by the way, which disqualifies it as a right.
With such a blatantly totalitarian “right” having actually been called into existence (out of thin air) by the Supreme Court of California, is it any wonder that marriage traditionalists, as well as more vigilant civil libertarians who understood the ruling, had to choose to protect their conscience, including such things as the right to continue to believe and practice their own religious doctrine, the right to excuse one’s children from state-mandated "sensitivity" training in school, or even the right to present scientific findings in the future about the positive outcomes of heterosexual parenting? Because of the California Supreme Court’s ruling, the charge repeated by No on Prop. 8 supporters that it was false to claim that there are other civil rights at stake in the matter is patently false. Read those words again! The Supreme Court actually said that homosexual couples had a right to be accorded dignity and respect. Other states and countries where homosexual marriage has been introduced have invariably been accompanied by blatant attacks of conscience, and, as I have demonstrated, the Supreme Court of California was explicitly declaring war. The logic is undeniable: If a Court is invoking a right, it must only be to protect that right, and protecting that right, in this case, means forcing the conscience of people.
Therefore, far from attacking anything that could possibly be called a “right” that homosexuals possess, Prop. 8 supporters were simply preserving a whole list of other rights that the California Supreme Court had explicitly declared war on. Despite the outrageousness of an illegal, unconstitutional judicial attack on marriage traditionalists, Prop. 8 supporters chose to protect their conscience in a very straightforward and magnanimous way. Nobody went raging after the equal rights that homosexual couples had already gained through representative democracy. (The Supreme Court admitted that "domestic partnership" and "marriage" were equivalent under the law.) Instead, marriage traditionalists simply placed a word, namely “marriage,” outside of the reach of the government in the constitution, so that government social engineers could not force people’s conscience on the use of that word. The effect of this was to simply restore an important compromise between marriage traditionalists and gay rights activists that had already been reached through representative democracy and which the California Supreme Court had absolutely no lawful basis or legal ability to overthrow.
In a remarkable and brave display of civility and a sadly rare understanding of the actual policy issues behind Prop. 8, none other than Sir Elton John himself had this to say about the gay marriage controversy in California:
"I don't want to be married. I'm very happy with a civil partnership. If gay people want to get married, or get together, they should have a civil partnership. The word 'marriage,' I think, puts a lot of people off. You get the same equal rights that we do when we have a civil partnership. Heterosexual people get married. We can have civil partnerships." (Quoted in USA Today online at http://www.usatoday.com/life/people/2008-11-12-elton-john_N.htm.)
I invite all the protesters to go home and check the facts on what the actual issue consists of, as well as strengthen their understanding of what a right is. I’m afraid they have been on the obviously wrong side of this battle. I invite them to join me, with all of their emotional fervor, in protecting rights for everyone, not just the false “right to be esteemed and respected" that was illegally read into the California Constitution outside of its lawful amendment process. I admit that many of them simply were not aware of the facts, but I now seek their kind help getting the Court off my conscience (as well as theirs) by supporting the democratic process that has already equalized the rights of homosexual partners through lawful means. I have no desire to deny anyone rights that they actually have. I simply deny them rights that they literally can’t have by the very definition of a right. I support Prop. 8 most fundamentally because I openly deny the power of any government on earth to enforce a right to be esteemed or respected. Deny totalitarian attacks on conscience categorically by supporting Proposition 8. End of story.
Sunday, October 26, 2008
What is Government?
What, exactly, is government? Frankly, it sounds like a silly question. Yet, a little thoughtful, factual, reflection demonstrates that the question is not as easy as one might think. The “silliest” questions of all are very often the most challenging precisely because such questions are little thought of or are taken for granted.
If one were to ask a random New Yorker standing on a street corner what a government is, the response might likely be something like “they’re the ones that make the laws, right?” This is an understandable reaction—to refer to the familiar notion of legislative activity we see covered on the nightly news. The phrase “ones who make the laws” in U.S. political culture is invariably a reference to the apparatus of the nation-state. In this essay, I propose to challenge this response on several levels.
Mankind is naturally social. From time immemorial mankind has demonstrated a propensity for social organization, or society. We expect mankind to form societies, anything from the family to the U.N., and social behavior requires coordination. These societies and their coordination facilitate everything from the most basic, personal human needs to the highest attainments. Societies coordinated by rules are said to be “governed” by rules, and government is that part of human behavior having to do with the making and enforcement of rules that facilitate being a part of society or societies.
Starting with the society associated with the most basic needs, we begin with the quintessential and primordial example of coordinated society, the family. Familial social ties, of the genetic and/or emotional sense, provide nourishment and affection during the most formative and vulnerable stages of life, and are often found to be so emotionally rewarding as to support their continued existence well after childhood and child rearing. In families we see the first, most stark example of the inter-dependency of the human condition, especially in the helpless human infant—among the most helpless of living things on earth at birth. These needs are met by coordinating familial society through
rules.
Perhaps it is a truism to describe the family as the “basic unit of society,” since it is the individual’s very first introduction to social organization and social rules. However, it may also be basic to our understanding of governments. How could this be?
A clarification is in order before I proceed. Laws and rules are the same thing, although in general use, “law” tends to refer to the rules by which a much larger society than a family functions. Laws are simply societal rules, although, in smaller societies like families, using the word “law” in reference to family rules is confusing. Appealing to the etymology of the word “law” serves to disarm its confusing cultural connotations to larger societies like nation-states: “Law” comes from the old Germanic lag, meaning, quite simply, “order.”
To return to our last query more specifically, how can the idea of families be used to critique our New Yorker’s intuition that governments are “the ones who make the laws”? The surprising answer is that family suggests that, in certain circumstances, there may be no real answer to who it is that makes the rules, at least in some explicit sense. In comparing nation-states to families, we can say they are both forms of social organization that are coordinated through rules or laws. However, in the case of families, we quickly see that rules may arise spontaneously, without any particular person or persons to make the rules. As just one example, families in subsistence farming economies tend to have a sexually discriminatory division of labor based on comparative advantage, such as the fact that men tend to have greater upper body strength than women. This rule about division of labor was certainly not imposed from without or even explicitly stated. Like language, such rules spontaneously arise out of the immediate environment of the individual acting with other individuals.
Thus we see that the mere fact that there is order, or law, to be found in societies does not necessitate anyone issuing laws at all. Therefore, to the extent that our New Yorker assumed that social order inherently necessitates a nation-state imposing law (rules) upon a society, he is quite mistaken.
This surprising example, among others, of spontaneous law is especially impressive when social order or law is achieved precisely in this way on a massive and complex scale, underscoring the ingenious ways societies free from top-down rule-making, such as legislation or diktat, can achieve remarkable results.
Moving outside the society of the family, what explains the strong tendency in trade for self-interested parties to practice honesty? For one thing, the continued existence of need and scarce resources by both parties drastically reduces the desire of both parties to engage in extortion or violence, thereby cutting oneself off from a source of economic betterment through mutually-beneficial trade. An expanding division of labor strengthens the desire for honest dealings and peaceful exchange, as the variety of goods and services available for the betterment of all is increased through the efficiencies of trade and specialization.
The mutual self-interest created in the division of labor and the development of trade has produced some of the most wide-ranging and complex examples of spontaneous law and government.
A marvelous historical example of trade and economic self-interest being a spontaneous source of law is the “law merchant,” a system of international trade law developed during medieval times. The system was made up of part-time law experts or judges (themselves merchants) who, through competitive trial and error, developed a common law tradition of rules providing resolution to conflicts between contracting parties. Because of the strong level of interdependence built up among the network of trading parties, there was strong incentive to settle conflicts in a mutually agreeable manner. Also, the use of force was seldom needed, since failure to abide by the law merchant system could easily mean the loss of a fortune. This was because the prestige the system had gained for fairness was so powerful that it was very easy for merchants to conclude that a dissenting merchant, refusing to utilize the law merchant for conflict resolution, was not willing to trade fairly with them. The law merchant stands as an incredible example of a system of law and government that arose spontaneously, without the imposition of force by a state or group of states.
The notion of “natural law” (natural order), implies that, in some prior sense, societies develop starting with the most basic and central human needs being met, and certainly family organization is one such society. Natural order comes into being because of natural needs. In as strict a use of the word lag (law) as might possibly be used, the society of family is the beginning of natural-law-based societal law. The individuals in families make up the most immediate webs of inter-dependence and most often represent the most fulfilling personal relationships individuals have. In this sense, we can easily see that the most compelling locus of personal (self-) interest and initiative is the family, with other forms of social organization (i.e., larger social orders) being secondary, tertiary, and so on.
Because of this, the most fundamental social rules (as distinguished from mere fashion or manners) provide order in society by protecting persons and property. In more ancient times this connection between the individual social sphere of family, persons, and property, were underscored with the close relationship between economic survival and family organization itself. In more ancient, subsistence-based economies, the place where people, property, means of production, and the most compelling, emotional reason for that production were all most closely, psychologically associated was in the family home. Thus, to attack person and property was to largely attack much of the meaning of individual life itself. Human beings are so social that individual life is largely made meaningful only by others.
The genius of the Western tradition that puts emphasis on individual rights and natural law is that it properly sees law as arising from naturally-occurring mutual self-interest between individuals, most basically centering in families and the immediate environs of the individual. Natural-rights-based order, where found, avoids conflict by recognizing the highly divergent needs, desires, and destinies of the individual (i.e., ensuring personal liberty).
The proper role, therefore, of government in the classical liberal sense, is limited to the protection of “negative rights”—the class of rights that prevent the inflicting of harm on persons and property. Where policies have arisen in western nation-states that favor some individuals over others through the creation of special, exclusive rights, governments sow the seeds of social destruction and, over time, only manage to entrench a much more pernicious and arbitrary social hierarchy, despite the purported goals of equality that often accompany these policies.
Socialized government, in its quest for utopia, not only pretends to have some collectivized, often “correct,” system of values on behalf of every individual, regardless of the knowledge or beliefs of those individuals, but, in bursts of hollow but impressive rhetoric, socialist politicians use metaphors like “village” and “family” in presuming to bestow upon individuals the kind of similar omniscience that would press individuals past the limits of human cognition to care about millions of other people by threat of violence! Thus, in a very practical sense, and in vast contrast to such socialist notions, natural-rights-protecting governments approach mankind’s nature with respectful deference, going a long way to providing stable social order.
Even in democratic nation-states, the democratic process itself has been severely abused by socialist notions, under constitutional law regimes that only purport to protect individual, natural rights. By appealing to utopian rhetorical flourishes or perfectionist social engineering projects, politicians have created a sort of “tyranny of good intentions.”[1] Forgetting the locus of natural rights, democratic governments, by force of majorities and honey-lipped persuasion, have universally engaged in legal plunder, the fiction of wealth equalization schemes, as well as a variety of other projects purporting to have the good of “the people” in mind.
The failure of democracies to protect property rights attacks and emasculates the familial locus of self-interest. This is dangerous for a variety of reasons relating to disrespect for individuals, but also disrespect for the relationship between individuals and their closest associates. Where families and local communities once freely widened their locus of self-interest by engaging in civil associations to provide all sorts of social services, thus encouraging a sense of authentic moral social conscience, governments have replaced such voluntary moral action with an amoral, faceless, socially meaningless, bureaucratic machine.
To summarize, the most fundamental rules of society, referred to by Michael Van Notten in his book The Law of the Somalis as “customary law,” are those rules that more or less approximate natural law.[2] The discussion of the definition of government is often confused by nation-states having taken the word “law,” with its desirable connotation of “order,” and applying in its place statutes or legislated commands. These are very different sorts of rules that do not necessarily arise out of mutual self-interest and need, and often only replace order with disorder, conflict, inefficiency and arbitrariness. The arrogance of the legislator in proposing to impose order by his/her superior wisdom in as inflexible and destructive an instrument as legislation destroys the individual initiative, creative genius, flexibility, and personal empowerment that recognition of spontaneous, non-legislated, contractual order tends to protect.
Thus, government, in its ideal sense, is not to be confused with the ruling organization of nation-states. It simply has to do with the spontaneous rules by which people successfully conduct their lives with one another. Even Jefferson recognized law, (order) as arising through consensual means when he said “Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.”
*The first draft of this was completed in September 2007. It is largely unchanged.
[1] I am indebted to a book by the same name—The Tyranny of Good Intentions by Roberts and Stratton—for this witty term.
[2] Van Notten, Michael. The Law of the Somalis: A Stable Foundation for Economic and Social Development in the Horn of Africa (Red Sea Press, 2005).
If one were to ask a random New Yorker standing on a street corner what a government is, the response might likely be something like “they’re the ones that make the laws, right?” This is an understandable reaction—to refer to the familiar notion of legislative activity we see covered on the nightly news. The phrase “ones who make the laws” in U.S. political culture is invariably a reference to the apparatus of the nation-state. In this essay, I propose to challenge this response on several levels.
Mankind is naturally social. From time immemorial mankind has demonstrated a propensity for social organization, or society. We expect mankind to form societies, anything from the family to the U.N., and social behavior requires coordination. These societies and their coordination facilitate everything from the most basic, personal human needs to the highest attainments. Societies coordinated by rules are said to be “governed” by rules, and government is that part of human behavior having to do with the making and enforcement of rules that facilitate being a part of society or societies.
Starting with the society associated with the most basic needs, we begin with the quintessential and primordial example of coordinated society, the family. Familial social ties, of the genetic and/or emotional sense, provide nourishment and affection during the most formative and vulnerable stages of life, and are often found to be so emotionally rewarding as to support their continued existence well after childhood and child rearing. In families we see the first, most stark example of the inter-dependency of the human condition, especially in the helpless human infant—among the most helpless of living things on earth at birth. These needs are met by coordinating familial society through
rules.
Perhaps it is a truism to describe the family as the “basic unit of society,” since it is the individual’s very first introduction to social organization and social rules. However, it may also be basic to our understanding of governments. How could this be?
A clarification is in order before I proceed. Laws and rules are the same thing, although in general use, “law” tends to refer to the rules by which a much larger society than a family functions. Laws are simply societal rules, although, in smaller societies like families, using the word “law” in reference to family rules is confusing. Appealing to the etymology of the word “law” serves to disarm its confusing cultural connotations to larger societies like nation-states: “Law” comes from the old Germanic lag, meaning, quite simply, “order.”
To return to our last query more specifically, how can the idea of families be used to critique our New Yorker’s intuition that governments are “the ones who make the laws”? The surprising answer is that family suggests that, in certain circumstances, there may be no real answer to who it is that makes the rules, at least in some explicit sense. In comparing nation-states to families, we can say they are both forms of social organization that are coordinated through rules or laws. However, in the case of families, we quickly see that rules may arise spontaneously, without any particular person or persons to make the rules. As just one example, families in subsistence farming economies tend to have a sexually discriminatory division of labor based on comparative advantage, such as the fact that men tend to have greater upper body strength than women. This rule about division of labor was certainly not imposed from without or even explicitly stated. Like language, such rules spontaneously arise out of the immediate environment of the individual acting with other individuals.
Thus we see that the mere fact that there is order, or law, to be found in societies does not necessitate anyone issuing laws at all. Therefore, to the extent that our New Yorker assumed that social order inherently necessitates a nation-state imposing law (rules) upon a society, he is quite mistaken.
This surprising example, among others, of spontaneous law is especially impressive when social order or law is achieved precisely in this way on a massive and complex scale, underscoring the ingenious ways societies free from top-down rule-making, such as legislation or diktat, can achieve remarkable results.
Moving outside the society of the family, what explains the strong tendency in trade for self-interested parties to practice honesty? For one thing, the continued existence of need and scarce resources by both parties drastically reduces the desire of both parties to engage in extortion or violence, thereby cutting oneself off from a source of economic betterment through mutually-beneficial trade. An expanding division of labor strengthens the desire for honest dealings and peaceful exchange, as the variety of goods and services available for the betterment of all is increased through the efficiencies of trade and specialization.
The mutual self-interest created in the division of labor and the development of trade has produced some of the most wide-ranging and complex examples of spontaneous law and government.
A marvelous historical example of trade and economic self-interest being a spontaneous source of law is the “law merchant,” a system of international trade law developed during medieval times. The system was made up of part-time law experts or judges (themselves merchants) who, through competitive trial and error, developed a common law tradition of rules providing resolution to conflicts between contracting parties. Because of the strong level of interdependence built up among the network of trading parties, there was strong incentive to settle conflicts in a mutually agreeable manner. Also, the use of force was seldom needed, since failure to abide by the law merchant system could easily mean the loss of a fortune. This was because the prestige the system had gained for fairness was so powerful that it was very easy for merchants to conclude that a dissenting merchant, refusing to utilize the law merchant for conflict resolution, was not willing to trade fairly with them. The law merchant stands as an incredible example of a system of law and government that arose spontaneously, without the imposition of force by a state or group of states.
The notion of “natural law” (natural order), implies that, in some prior sense, societies develop starting with the most basic and central human needs being met, and certainly family organization is one such society. Natural order comes into being because of natural needs. In as strict a use of the word lag (law) as might possibly be used, the society of family is the beginning of natural-law-based societal law. The individuals in families make up the most immediate webs of inter-dependence and most often represent the most fulfilling personal relationships individuals have. In this sense, we can easily see that the most compelling locus of personal (self-) interest and initiative is the family, with other forms of social organization (i.e., larger social orders) being secondary, tertiary, and so on.
Because of this, the most fundamental social rules (as distinguished from mere fashion or manners) provide order in society by protecting persons and property. In more ancient times this connection between the individual social sphere of family, persons, and property, were underscored with the close relationship between economic survival and family organization itself. In more ancient, subsistence-based economies, the place where people, property, means of production, and the most compelling, emotional reason for that production were all most closely, psychologically associated was in the family home. Thus, to attack person and property was to largely attack much of the meaning of individual life itself. Human beings are so social that individual life is largely made meaningful only by others.
The genius of the Western tradition that puts emphasis on individual rights and natural law is that it properly sees law as arising from naturally-occurring mutual self-interest between individuals, most basically centering in families and the immediate environs of the individual. Natural-rights-based order, where found, avoids conflict by recognizing the highly divergent needs, desires, and destinies of the individual (i.e., ensuring personal liberty).
The proper role, therefore, of government in the classical liberal sense, is limited to the protection of “negative rights”—the class of rights that prevent the inflicting of harm on persons and property. Where policies have arisen in western nation-states that favor some individuals over others through the creation of special, exclusive rights, governments sow the seeds of social destruction and, over time, only manage to entrench a much more pernicious and arbitrary social hierarchy, despite the purported goals of equality that often accompany these policies.
Socialized government, in its quest for utopia, not only pretends to have some collectivized, often “correct,” system of values on behalf of every individual, regardless of the knowledge or beliefs of those individuals, but, in bursts of hollow but impressive rhetoric, socialist politicians use metaphors like “village” and “family” in presuming to bestow upon individuals the kind of similar omniscience that would press individuals past the limits of human cognition to care about millions of other people by threat of violence! Thus, in a very practical sense, and in vast contrast to such socialist notions, natural-rights-protecting governments approach mankind’s nature with respectful deference, going a long way to providing stable social order.
Even in democratic nation-states, the democratic process itself has been severely abused by socialist notions, under constitutional law regimes that only purport to protect individual, natural rights. By appealing to utopian rhetorical flourishes or perfectionist social engineering projects, politicians have created a sort of “tyranny of good intentions.”[1] Forgetting the locus of natural rights, democratic governments, by force of majorities and honey-lipped persuasion, have universally engaged in legal plunder, the fiction of wealth equalization schemes, as well as a variety of other projects purporting to have the good of “the people” in mind.
The failure of democracies to protect property rights attacks and emasculates the familial locus of self-interest. This is dangerous for a variety of reasons relating to disrespect for individuals, but also disrespect for the relationship between individuals and their closest associates. Where families and local communities once freely widened their locus of self-interest by engaging in civil associations to provide all sorts of social services, thus encouraging a sense of authentic moral social conscience, governments have replaced such voluntary moral action with an amoral, faceless, socially meaningless, bureaucratic machine.
To summarize, the most fundamental rules of society, referred to by Michael Van Notten in his book The Law of the Somalis as “customary law,” are those rules that more or less approximate natural law.[2] The discussion of the definition of government is often confused by nation-states having taken the word “law,” with its desirable connotation of “order,” and applying in its place statutes or legislated commands. These are very different sorts of rules that do not necessarily arise out of mutual self-interest and need, and often only replace order with disorder, conflict, inefficiency and arbitrariness. The arrogance of the legislator in proposing to impose order by his/her superior wisdom in as inflexible and destructive an instrument as legislation destroys the individual initiative, creative genius, flexibility, and personal empowerment that recognition of spontaneous, non-legislated, contractual order tends to protect.
Thus, government, in its ideal sense, is not to be confused with the ruling organization of nation-states. It simply has to do with the spontaneous rules by which people successfully conduct their lives with one another. Even Jefferson recognized law, (order) as arising through consensual means when he said “Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.”
*The first draft of this was completed in September 2007. It is largely unchanged.
[1] I am indebted to a book by the same name—The Tyranny of Good Intentions by Roberts and Stratton—for this witty term.
[2] Van Notten, Michael. The Law of the Somalis: A Stable Foundation for Economic and Social Development in the Horn of Africa (Red Sea Press, 2005).
Saturday, October 25, 2008
A Libertarian Defense of Proposition 8
Having recently become especially weary of all the empty political rhetoric surrounding Proposition 8 ("Prop. 8"), I decided to dig a little deeper into the underlying issues and make some important observations. In case you’re not aware (which would be very surprising), Proposition 8 is the California ballot initiative that will be voted on November 3rd which will place an amendment in the state constitution stating that “Only marriage between a man and a woman is valid and recognized in California.” The proposal will not affect anything in the law except a definition. In fact, homosexuals already enjoy the same state benefits as their married heterosexual counterparts, in the form of "domestic partnership" provisions. Supporters are simply seeking to uphold the will of the people as passed in a ballot initiative in 2000 in which 61% of the people voted yes to put the exact same language into state statutes. The California Supreme Court overturned the will of the people recently, and Prop. 8 was introduced to restore the will of the people by placing the law into the state constitution.
I will (1) start by addressing arguments that I have seen against Prop. 8 that seem to me to be among the most prominent, (2) I will critique these views from a pro-Prop. 8 standpoint, and (3) I will review my major arguments in support of Prop. 8.
One rather weird example of political rhetoric that seems, unfortunately, to be quite compelling to the masses is “the right to love” argument – the one that assumes simply that if two people (adults) love each other, they ought to have the right that this love be legally recognized in marriage. Since having rights are classically defined as having a moral claim on others, I generally ask people to show me the anti-love statutes of California before I consider their argument further. If they have a moral claim not to be bothered about who they love by others, exactly how are they being prevented? Are there anti-love laws that I haven't read? Are there any anti-love-affirming-ceremony laws? People love each other all the time – and in all sorts of ways – outside the particular legally-recognized, traditional definition of marriage. Why, then, has there arisen an interest in society for legal recognition of the particular form of love traditionally called marriage? The answer is the protection and nurturing of children. There’s no government interest in helping people to love each other, and it’s certainly not a positive right. Imagine the bureaucracy built up to guarantee every person has somebody to love!
Another argument I hear repeatedly of those who wish for homosexual marriage to continue is that not allowing this “basic, fundamental right” discriminates “against” people. Indeed, this was the basic argument of the California Supreme Court. One has to examine the underlying, hidden premises of such an argument to get at what Prop. 8 opponents are really saying. It appears to be a comparison to the civil rights era, and the argument seems to be that marriage is an individual right that should be fought for because gays and lesbians have been denied this right due to oppression of them as a class. But why is this necessarily the case? Is it really necessarily hatred that would cause people to "discriminate against" homosexuals in marriage? Is society harboring such ill-will now towards homosexuals as on the of scale civil rights violations in the Jim Crowe South? California currently guarantees the same rights for heterosexual marriages as for domestic partnerships, a definition that is inclusive of homosexual partners. If the marriage tradition has always been (as Prop. 8 supporters argue) for the societal recognition and protection of offspring, is the glaring fact that homosexual couples have not been capable of offspring not an acceptable form of discrimination? At least historically, it can’t be the case all of this "discrimination" is just because they're homosexual! Canada’s foray into this silly individual rights reasoning has actually led to advocating guaranteed rights to artificial insemination by the state! In any case, this type of argument fails to address the argument of Prop 8 supporters, which is that marriage has been and ought to continue to be legally discriminatory for reasons of child welfare. (Imagine a world in which you couldn’t discriminate at all – like, for example, between unqualified employees and qualified ones.)
Some of the best thinking on the issues of gay marriage that I have seen has come from libertarians, but I’m biased, because I have been attracted to libertarian ethical thought since I studied philosophy as an undergraduate. I wanted to quote a good representation of one libertarian line of reasoning that I thought was particularly insightful:
…The concern for children exposed to the very idea of gay marriage, or parenting by two same-sex partners, seems rather misplaced in light of the state of traditional marriage, which is all too-often plagued by divorce, abuse or otherwise less-than-optimal conditions for raising children. Some have argued that same-sex partners should not be permitted to raise children because their family structure is somehow damaging to children…
Even if one was to assume, for the sake of argument, that a same-sex household is a suboptimal environment for raising children, that does not necessarily give government the authority to prohibit such arrangements. For example, one could argue that children raised in upper-middleclass households tend to be the most successful because poor families may not be able to provide for their children’s needs and very wealthy families may spoil them and never force them to develop a strong work ethic. Does this mean that the government should prohibit very poor or very rich couples from having children? Just as the government cannot legislate happiness or wealth, it cannot legislate ideal family arrangements—and it should not try. (See Summers, Adam B. "Analysis of California's Proposition 8: Limits on Marriage." Policy Brief 76, October 2008. Reason Foundation. Los Angeles, CA., available at http://www.reason.org/.)
First of all, “for the sake of argument” there’s plenty of reason to believe that having both parents does matter a lot in the psychological health of children. Is it really so fantastic to believe that having two opposite-sex parents is ideal? For example, from the perspective of what it is about having both a father and mother that might decrease antisocial behavior in children, one recent psychological study finds that “feminine” and “masculine” ethical viewpoints compliment each other in a child’s development of a sense of morality. The male ethical viewpoint, for instance, most contributed to ethical thinking toward the outside world, while the female ethical viewpoint focused on interpersonal relationships. This is an important finding since the content of “feminine” and “masculine” moral viewpoints seems likely to contribute to children having more complex and mature ethical understanding. This is just one example, among many, that point to the possible superiority of heterosexual parenting. Back before gay rights became en vogue, pundits used to talk about these sorts of studies quite a bit more, but not always in comparison to homosexual parenting outcomes (e.g., single parenthood and crime).
People point, quite correctly, to the findings that say that children of same-sex couples do just as well on a few basic measures of well-being, such as educational achievement, social function, and etc. Why has there been such a big deal made of this? Do opponents of Prop. 8 really think Prop. 8 supporters believe children’s heads will explode if children live in same-sex households? Perhaps a few do. But, saying that “there’s no evidence that” the basic well-being of children of same-sex parents is any worse than the well-being of traditional and/or biological parenting is really not saying much. A cursory exploration of the kinds of methodological problems that arise in comparing homosexual vs. heterosexual parenting outcomes, especially long-term, and especially with more difficult-to-measure outcome types (outside the minimal questions of social adjustment and general psychological health) should at the very least leave the question open as to what other types of benefits heterosexual parenting might bring outside the basics. Also, despite the rampant scientism of the popular imagination, there are massive areas of human well-being, psychological attributes, and social attributes that are not easily or objectively compared or even detected.
Secondly, the author gives us a slippery-slope argument that “you can point to just about any factor that makes a household environment suboptimal,” therefore, government “cannot” legislate optimal family arrangements. Put another way, the author seems to be saying, “when we suppose it is government’s job to engineer optimal family arrangements, we open a pandora’s box of regulations upon marriage that stifle individual rights and may cause more harm than good.” It is a good argument, but has little application to Prop 8.
Here’s why. Government has “legislated” for the protection of children in “suboptimal” family situations forever, and in ways that even the staunchest libertarian would have a hard time disagreeing with, namely it may intervene in cases where a child is being abused. (There may be other alternatives to direct state intervention that are better, but the point is, some social arrangement is and ought to be made to assure rights are protected.) Government has always treated children differently (“discriminated”!) than adults for obvious reasons. While I would certainly agree with the argument that government is poor at engineering optimal household environments for families, this hardly means that it is necessarily bad at protecting children’s basic rights generally.
Even if we accept that we don’t want to open such a pandora’s box of regulations on marriage (as I would), the question still might be asked, then, are there simple, non-intrusive, equally-applied standards that government may encourage through indirect incentives, which increase the well-being of children over other arrangements? There is at least one: namely leaving the definition of marriage in place - as a legally-protected complex of rights and responsibilities between reproductive partners, bound and committed to each other and their offspring. In this sense, government is not discriminating “against” any person, but is discriminating between an institutional arrangement (one factor among many) that is more likely to result in the well-being and happiness of a child and other arrangements which are less likely to. Indeed, in the case of Prop. 8, government is discriminating in the least-intrusive possible way – just by maintaining a traditional definition of marriage as opposed to re-definining it to mean other non-optimal arrangements. While libertarian and liberal advocates of same-sex marriage have emphasized the individual rights of adults in the matter, this “discrimination between institutional arrangements” argument is more aligned with a well-developed understanding of the traditional, child-centric view of marriage Prop. 8 proponents argue for, and which opponents have not adequately addressed or have even completely ignored.
Marriage is a legally-recognized institution, historically regulated in the common law (transmitted from the traditions of the people bottom-up, not top-down), that involves a complex of rights bearers (always inclusive of children), interrelating responsibilities, and privileges. It has always been seen as an institution headed by two opposite sex parents who have the responsibility and privilege of conceiving and raising the next generation of society. Outside of its legal meaning is its cultural (including religious) meaning. As a cultural phenomenon, it establishes values that govern (ideally, the successful) procreation and nurturing of children and transmits those values to the next generation. These values, especially ethical ones, are often deeply intertwined with religious life, meaning and purpose. For society at large, it remains, and, I say, should remain, a powerful ethical symbol of respect for and nurturing of human life.
Libertarians who study voluntary social order that arises “spontaneously” (meaning through natural incentives and/or non-intentionally-planned order) which increase people’s well-being, can more easily understand how it might be that a social arrangement called marriage has apparently changed so little over centuries, across all cultures, religions, and peoples all around the world. A line of thinking that embraces “natural rights” theory suggests how some social coordination, such as economic markets, arise out of the very nature of human beings (for example, the idea of property arises spontaneously in the psychology of all children, and is easily observed with one of their earliest utility words: “mine!”). It may just be that marriage—traditionally understood—arises out of the very nature of human beings, parents and children. Anthropologically, it is easy to see how inter-relating roles among family members and sex-based roles provided optimal basic survival conditions for children. These unique family roles (specializations) are also uniquely appreciated, bring a powerful sense of fulfillment and purpose to all, and have evolved to fulfill the deep psychological and emotional needs of children as well. It is also easy to understand how very special and powerful bonds of love arise between parents and their natural offspring, who even look like them. The apparent psychological importance of this is seen in how children who are adopted will often go to great lengths to find and establish relationships with their birth parents, even when their experiences as adopted children were very happy. What same-sex marriage advocates are entirely over-looking is that the social institution of marriage itself may arise out of human nature and that, therefore, re-defining or seeking to improve upon such a spontaneously-arising social order is destructive of human well-being.
Besides how much a definition might mean socially, how much does a definition matter in the law? Laws, and the words that make them up, are all fluid, cultural phenomena. Despite the political posturing of Prop. 8 opponents, the mere fact that the law does not currently harm the rights of gay marriage dissenters does not mean that such a harmful policy would or could not be quickly implemented even under existing law language if Prop. 8 were to fail. Indeed, it was the mere stroke of a gavel that overturned 61% of the vote of the people in the first place. It is a far lesser extravagancy of judicial or bureaucratic lawmaking (regardless of the will of the majority) that is necessary to interpret existing law to destroy marriage traditionalists’ legal rights or benefits, especially considering the shear volume of laws, bureaucracy, and wealth redistribution of a California government that waits on people hand and foot from birth to grave. The existing neo-socialist regime of California has been given incredible, arbitrary power in many areas of people's lives, and it is likely to be abused. Indeed, it is abused routinely for all sorts of questionable reasons as it stands.
Therefore, it has become extremely clear to me that the fallacious, simplistic use of civil rights reasoning being employed by those who oppose Prop. 8 will bring with it a lot of historical baggage, including highly questionable “right to associate” mandates such as were used in the civil rights movement to beat interracial respect into people, upheld speciously in the U.S. Supreme Court under the "interstate commerce clause." (The example given, from Massachussetts, by Prop. 8 publicity was the instantaneously asserted “right for gay spouses to get their picture taken by anybody they wanted even if the photographer didn’t want to.”) This is pure absurdity.
While I’m not completely sure that California would go that far in punishing “discrimination against” homosexuals, potential loss of or infringement upon rights of people who openly disagree with homosexual marriage on a psychological, sociological, general cultural, religious or other bases is highly likely. As has been seen around the world already, including in the U.S., religious liberty, economic liberty, parental rights, free speech, liberty of conscience and others are definitely at stake in the question because of the growth of Big Government interventionism and the popularity of questionable social engineering attitudes from those in the ruling classes over the past century. Even worse, there’s a highly authoritarian culture built up between opinion leaders and their followers along ideological lines in California and the rest of the country. Disturbingly, it’s merely a matter of pointing fingers and the witch hunt is on.
The endangerment of rights unrelated directly to such assumed individualistic rights as “to love” or to be “recognized as married” should seem obvious to opponents of Prop. 8, but so many certainly don’t act like it. Some, I think, harbor in their mind just the sort of baggage of forced association policies (and ultimately forced conscience policies) that their civil rights rhetoric seems to point to historically, and would even recommend such totalitarian usurpations. I’ve also not heard much thought from Prop. 8 opponents about whether or not, on a utilitarian basis, it would be best to leave the law just as it was when it was settled by a vote of the people and the passing of domestic partnership laws in the legislature. Such a democratic compromise allows marriage traditionalists to keep what they perceive as the cultural and psychological benefits to society of their own view of marriage as a unique institution and has no further policy effect on civil unions.
If more Prop. 8 opponents would simply open their mind to the strong probability that accepting the state Supreme Court ruling would gain one right for a class of people in a way that will only lead to destroying several others (a phenomenon that happens all too frequently in our once great Republic, with so little thought), they would see that the greatest good for the greatest number clearly consists in compromise. In this case, the compromise had already been accomplished democratically, between homosexual rights and marriage traditionalists constitutionally and by the will of the people, rather than a self-appointed, arbitrary aristocracy of judges. Indeed, one of the benefits of law produced by due democratic process, instead of by arbitrary will of aristocracy, is that the "messiness" of conflicting values is more likely to be settled by compromise, as it was before these activist judges overthrew the rule of law. Therefore, for these reasons, if Prop. 8 opponents really did believe in equality for all, they should actually be voting for Prop. 8.
Finally, here is my own, far more personal, viewpoint. Marriage isn’t a right but a privilege. We live in a world right now where it seems sometimes that selfish individuality and thoughtlessness to the needs of others is the central right, so long as nobody has to lift a finger or is violent. Long gone are the times when marriage was respected so much as a protected institution for the best interest of children that all of the Thirteen Colonies had strong punishments for adultery because of how much such infidelity affected spouses and children. (One particularly interesting adultery penalty at the time permanently banned a marriage between two adulterers.) An opponent of Prop. 8 recently outlandishly suggested I wanted to force people to never divorce. Not really. I’m simply saying, in this case, that re-defining marriage in any way that takes away from its place as an ideal social institution involving a complex of rights that go beyond the whims of adults, is just one more step in the direction of ignoring the rights and needs of children. We’ve seen other marriage policy changes before that were originally believed to not harm anyone, such as “no-fault” divorce, which was strongly correlated with yet another increase in divorce and more devastating effects on children.
I will vote for Proposition 8 with a clear conscience, on the basis that I am protecting a whole array of rights, from those involved in parenting and being parented, to religious liberty, freedom of speech, liberty of conscience, and, yes, equality before the law. I will vote for Prop. 8 because I am not willing to sacrifice a whole list of other rights in exchange for the ethereal, effectively meaningless “right to love whoever I want.” The definition of marriage matters because society clearly needs a definitional placeholder, an institutional concept of the best conditions under which children can be raised. It needs a solid, love-based institution that transmits the ethics of family life and responsibility, with all its challenges and joys, to the next generation, and it needs a powerful symbol of the sanctity of life and unlimited potential of children. Marriage isn't just a contract between adult lovers. It is love begetting love.
I will (1) start by addressing arguments that I have seen against Prop. 8 that seem to me to be among the most prominent, (2) I will critique these views from a pro-Prop. 8 standpoint, and (3) I will review my major arguments in support of Prop. 8.
One rather weird example of political rhetoric that seems, unfortunately, to be quite compelling to the masses is “the right to love” argument – the one that assumes simply that if two people (adults) love each other, they ought to have the right that this love be legally recognized in marriage. Since having rights are classically defined as having a moral claim on others, I generally ask people to show me the anti-love statutes of California before I consider their argument further. If they have a moral claim not to be bothered about who they love by others, exactly how are they being prevented? Are there anti-love laws that I haven't read? Are there any anti-love-affirming-ceremony laws? People love each other all the time – and in all sorts of ways – outside the particular legally-recognized, traditional definition of marriage. Why, then, has there arisen an interest in society for legal recognition of the particular form of love traditionally called marriage? The answer is the protection and nurturing of children. There’s no government interest in helping people to love each other, and it’s certainly not a positive right. Imagine the bureaucracy built up to guarantee every person has somebody to love!
Another argument I hear repeatedly of those who wish for homosexual marriage to continue is that not allowing this “basic, fundamental right” discriminates “against” people. Indeed, this was the basic argument of the California Supreme Court. One has to examine the underlying, hidden premises of such an argument to get at what Prop. 8 opponents are really saying. It appears to be a comparison to the civil rights era, and the argument seems to be that marriage is an individual right that should be fought for because gays and lesbians have been denied this right due to oppression of them as a class. But why is this necessarily the case? Is it really necessarily hatred that would cause people to "discriminate against" homosexuals in marriage? Is society harboring such ill-will now towards homosexuals as on the of scale civil rights violations in the Jim Crowe South? California currently guarantees the same rights for heterosexual marriages as for domestic partnerships, a definition that is inclusive of homosexual partners. If the marriage tradition has always been (as Prop. 8 supporters argue) for the societal recognition and protection of offspring, is the glaring fact that homosexual couples have not been capable of offspring not an acceptable form of discrimination? At least historically, it can’t be the case all of this "discrimination" is just because they're homosexual! Canada’s foray into this silly individual rights reasoning has actually led to advocating guaranteed rights to artificial insemination by the state! In any case, this type of argument fails to address the argument of Prop 8 supporters, which is that marriage has been and ought to continue to be legally discriminatory for reasons of child welfare. (Imagine a world in which you couldn’t discriminate at all – like, for example, between unqualified employees and qualified ones.)
Some of the best thinking on the issues of gay marriage that I have seen has come from libertarians, but I’m biased, because I have been attracted to libertarian ethical thought since I studied philosophy as an undergraduate. I wanted to quote a good representation of one libertarian line of reasoning that I thought was particularly insightful:
…The concern for children exposed to the very idea of gay marriage, or parenting by two same-sex partners, seems rather misplaced in light of the state of traditional marriage, which is all too-often plagued by divorce, abuse or otherwise less-than-optimal conditions for raising children. Some have argued that same-sex partners should not be permitted to raise children because their family structure is somehow damaging to children…
Even if one was to assume, for the sake of argument, that a same-sex household is a suboptimal environment for raising children, that does not necessarily give government the authority to prohibit such arrangements. For example, one could argue that children raised in upper-middleclass households tend to be the most successful because poor families may not be able to provide for their children’s needs and very wealthy families may spoil them and never force them to develop a strong work ethic. Does this mean that the government should prohibit very poor or very rich couples from having children? Just as the government cannot legislate happiness or wealth, it cannot legislate ideal family arrangements—and it should not try. (See Summers, Adam B. "Analysis of California's Proposition 8: Limits on Marriage." Policy Brief 76, October 2008. Reason Foundation. Los Angeles, CA., available at http://www.reason.org/.)
First of all, “for the sake of argument” there’s plenty of reason to believe that having both parents does matter a lot in the psychological health of children. Is it really so fantastic to believe that having two opposite-sex parents is ideal? For example, from the perspective of what it is about having both a father and mother that might decrease antisocial behavior in children, one recent psychological study finds that “feminine” and “masculine” ethical viewpoints compliment each other in a child’s development of a sense of morality. The male ethical viewpoint, for instance, most contributed to ethical thinking toward the outside world, while the female ethical viewpoint focused on interpersonal relationships. This is an important finding since the content of “feminine” and “masculine” moral viewpoints seems likely to contribute to children having more complex and mature ethical understanding. This is just one example, among many, that point to the possible superiority of heterosexual parenting. Back before gay rights became en vogue, pundits used to talk about these sorts of studies quite a bit more, but not always in comparison to homosexual parenting outcomes (e.g., single parenthood and crime).
People point, quite correctly, to the findings that say that children of same-sex couples do just as well on a few basic measures of well-being, such as educational achievement, social function, and etc. Why has there been such a big deal made of this? Do opponents of Prop. 8 really think Prop. 8 supporters believe children’s heads will explode if children live in same-sex households? Perhaps a few do. But, saying that “there’s no evidence that” the basic well-being of children of same-sex parents is any worse than the well-being of traditional and/or biological parenting is really not saying much. A cursory exploration of the kinds of methodological problems that arise in comparing homosexual vs. heterosexual parenting outcomes, especially long-term, and especially with more difficult-to-measure outcome types (outside the minimal questions of social adjustment and general psychological health) should at the very least leave the question open as to what other types of benefits heterosexual parenting might bring outside the basics. Also, despite the rampant scientism of the popular imagination, there are massive areas of human well-being, psychological attributes, and social attributes that are not easily or objectively compared or even detected.
Secondly, the author gives us a slippery-slope argument that “you can point to just about any factor that makes a household environment suboptimal,” therefore, government “cannot” legislate optimal family arrangements. Put another way, the author seems to be saying, “when we suppose it is government’s job to engineer optimal family arrangements, we open a pandora’s box of regulations upon marriage that stifle individual rights and may cause more harm than good.” It is a good argument, but has little application to Prop 8.
Here’s why. Government has “legislated” for the protection of children in “suboptimal” family situations forever, and in ways that even the staunchest libertarian would have a hard time disagreeing with, namely it may intervene in cases where a child is being abused. (There may be other alternatives to direct state intervention that are better, but the point is, some social arrangement is and ought to be made to assure rights are protected.) Government has always treated children differently (“discriminated”!) than adults for obvious reasons. While I would certainly agree with the argument that government is poor at engineering optimal household environments for families, this hardly means that it is necessarily bad at protecting children’s basic rights generally.
Even if we accept that we don’t want to open such a pandora’s box of regulations on marriage (as I would), the question still might be asked, then, are there simple, non-intrusive, equally-applied standards that government may encourage through indirect incentives, which increase the well-being of children over other arrangements? There is at least one: namely leaving the definition of marriage in place - as a legally-protected complex of rights and responsibilities between reproductive partners, bound and committed to each other and their offspring. In this sense, government is not discriminating “against” any person, but is discriminating between an institutional arrangement (one factor among many) that is more likely to result in the well-being and happiness of a child and other arrangements which are less likely to. Indeed, in the case of Prop. 8, government is discriminating in the least-intrusive possible way – just by maintaining a traditional definition of marriage as opposed to re-definining it to mean other non-optimal arrangements. While libertarian and liberal advocates of same-sex marriage have emphasized the individual rights of adults in the matter, this “discrimination between institutional arrangements” argument is more aligned with a well-developed understanding of the traditional, child-centric view of marriage Prop. 8 proponents argue for, and which opponents have not adequately addressed or have even completely ignored.
Marriage is a legally-recognized institution, historically regulated in the common law (transmitted from the traditions of the people bottom-up, not top-down), that involves a complex of rights bearers (always inclusive of children), interrelating responsibilities, and privileges. It has always been seen as an institution headed by two opposite sex parents who have the responsibility and privilege of conceiving and raising the next generation of society. Outside of its legal meaning is its cultural (including religious) meaning. As a cultural phenomenon, it establishes values that govern (ideally, the successful) procreation and nurturing of children and transmits those values to the next generation. These values, especially ethical ones, are often deeply intertwined with religious life, meaning and purpose. For society at large, it remains, and, I say, should remain, a powerful ethical symbol of respect for and nurturing of human life.
Libertarians who study voluntary social order that arises “spontaneously” (meaning through natural incentives and/or non-intentionally-planned order) which increase people’s well-being, can more easily understand how it might be that a social arrangement called marriage has apparently changed so little over centuries, across all cultures, religions, and peoples all around the world. A line of thinking that embraces “natural rights” theory suggests how some social coordination, such as economic markets, arise out of the very nature of human beings (for example, the idea of property arises spontaneously in the psychology of all children, and is easily observed with one of their earliest utility words: “mine!”). It may just be that marriage—traditionally understood—arises out of the very nature of human beings, parents and children. Anthropologically, it is easy to see how inter-relating roles among family members and sex-based roles provided optimal basic survival conditions for children. These unique family roles (specializations) are also uniquely appreciated, bring a powerful sense of fulfillment and purpose to all, and have evolved to fulfill the deep psychological and emotional needs of children as well. It is also easy to understand how very special and powerful bonds of love arise between parents and their natural offspring, who even look like them. The apparent psychological importance of this is seen in how children who are adopted will often go to great lengths to find and establish relationships with their birth parents, even when their experiences as adopted children were very happy. What same-sex marriage advocates are entirely over-looking is that the social institution of marriage itself may arise out of human nature and that, therefore, re-defining or seeking to improve upon such a spontaneously-arising social order is destructive of human well-being.
Besides how much a definition might mean socially, how much does a definition matter in the law? Laws, and the words that make them up, are all fluid, cultural phenomena. Despite the political posturing of Prop. 8 opponents, the mere fact that the law does not currently harm the rights of gay marriage dissenters does not mean that such a harmful policy would or could not be quickly implemented even under existing law language if Prop. 8 were to fail. Indeed, it was the mere stroke of a gavel that overturned 61% of the vote of the people in the first place. It is a far lesser extravagancy of judicial or bureaucratic lawmaking (regardless of the will of the majority) that is necessary to interpret existing law to destroy marriage traditionalists’ legal rights or benefits, especially considering the shear volume of laws, bureaucracy, and wealth redistribution of a California government that waits on people hand and foot from birth to grave. The existing neo-socialist regime of California has been given incredible, arbitrary power in many areas of people's lives, and it is likely to be abused. Indeed, it is abused routinely for all sorts of questionable reasons as it stands.
Therefore, it has become extremely clear to me that the fallacious, simplistic use of civil rights reasoning being employed by those who oppose Prop. 8 will bring with it a lot of historical baggage, including highly questionable “right to associate” mandates such as were used in the civil rights movement to beat interracial respect into people, upheld speciously in the U.S. Supreme Court under the "interstate commerce clause." (The example given, from Massachussetts, by Prop. 8 publicity was the instantaneously asserted “right for gay spouses to get their picture taken by anybody they wanted even if the photographer didn’t want to.”) This is pure absurdity.
While I’m not completely sure that California would go that far in punishing “discrimination against” homosexuals, potential loss of or infringement upon rights of people who openly disagree with homosexual marriage on a psychological, sociological, general cultural, religious or other bases is highly likely. As has been seen around the world already, including in the U.S., religious liberty, economic liberty, parental rights, free speech, liberty of conscience and others are definitely at stake in the question because of the growth of Big Government interventionism and the popularity of questionable social engineering attitudes from those in the ruling classes over the past century. Even worse, there’s a highly authoritarian culture built up between opinion leaders and their followers along ideological lines in California and the rest of the country. Disturbingly, it’s merely a matter of pointing fingers and the witch hunt is on.
The endangerment of rights unrelated directly to such assumed individualistic rights as “to love” or to be “recognized as married” should seem obvious to opponents of Prop. 8, but so many certainly don’t act like it. Some, I think, harbor in their mind just the sort of baggage of forced association policies (and ultimately forced conscience policies) that their civil rights rhetoric seems to point to historically, and would even recommend such totalitarian usurpations. I’ve also not heard much thought from Prop. 8 opponents about whether or not, on a utilitarian basis, it would be best to leave the law just as it was when it was settled by a vote of the people and the passing of domestic partnership laws in the legislature. Such a democratic compromise allows marriage traditionalists to keep what they perceive as the cultural and psychological benefits to society of their own view of marriage as a unique institution and has no further policy effect on civil unions.
If more Prop. 8 opponents would simply open their mind to the strong probability that accepting the state Supreme Court ruling would gain one right for a class of people in a way that will only lead to destroying several others (a phenomenon that happens all too frequently in our once great Republic, with so little thought), they would see that the greatest good for the greatest number clearly consists in compromise. In this case, the compromise had already been accomplished democratically, between homosexual rights and marriage traditionalists constitutionally and by the will of the people, rather than a self-appointed, arbitrary aristocracy of judges. Indeed, one of the benefits of law produced by due democratic process, instead of by arbitrary will of aristocracy, is that the "messiness" of conflicting values is more likely to be settled by compromise, as it was before these activist judges overthrew the rule of law. Therefore, for these reasons, if Prop. 8 opponents really did believe in equality for all, they should actually be voting for Prop. 8.
Finally, here is my own, far more personal, viewpoint. Marriage isn’t a right but a privilege. We live in a world right now where it seems sometimes that selfish individuality and thoughtlessness to the needs of others is the central right, so long as nobody has to lift a finger or is violent. Long gone are the times when marriage was respected so much as a protected institution for the best interest of children that all of the Thirteen Colonies had strong punishments for adultery because of how much such infidelity affected spouses and children. (One particularly interesting adultery penalty at the time permanently banned a marriage between two adulterers.) An opponent of Prop. 8 recently outlandishly suggested I wanted to force people to never divorce. Not really. I’m simply saying, in this case, that re-defining marriage in any way that takes away from its place as an ideal social institution involving a complex of rights that go beyond the whims of adults, is just one more step in the direction of ignoring the rights and needs of children. We’ve seen other marriage policy changes before that were originally believed to not harm anyone, such as “no-fault” divorce, which was strongly correlated with yet another increase in divorce and more devastating effects on children.
I will vote for Proposition 8 with a clear conscience, on the basis that I am protecting a whole array of rights, from those involved in parenting and being parented, to religious liberty, freedom of speech, liberty of conscience, and, yes, equality before the law. I will vote for Prop. 8 because I am not willing to sacrifice a whole list of other rights in exchange for the ethereal, effectively meaningless “right to love whoever I want.” The definition of marriage matters because society clearly needs a definitional placeholder, an institutional concept of the best conditions under which children can be raised. It needs a solid, love-based institution that transmits the ethics of family life and responsibility, with all its challenges and joys, to the next generation, and it needs a powerful symbol of the sanctity of life and unlimited potential of children. Marriage isn't just a contract between adult lovers. It is love begetting love.
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