Category Archives: Book Review

Vices are not crimes

In society today, we are faced with a question of where government gets its power, and what behaviors it can regulate with that power. Lysander Spooner in his work, “Vices are not Crimes” goes into depth describing the legal and philosophical reasoning for a limited and voluntary government that has only the rights that individuals possess, and have deemed necessary for the government to have.

Before the discussion of government and its regulating power begins, some definitions, and assumptions must be listed and explained.  In Vices are not crimes, Lysander Spooner uses the following as definitions for crimes and vices,

“Crimes are those acts by which one man harms the person or property of another. Vices are those acts by which a man harms himself or his property, and are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property. In vices, the very essence of crime — that is, the design to injure the person or property of another — is wanting. It is a maxim of the law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another. But no one ever practices a vice with any such criminal intent. He practices his vice for his own happiness solely, and not from any malice toward others.”

This differentiation is so important because it is necessary in protecting the individuals’ right to liberty and his pursuit of happiness. This is because vices are those behaviors which a majority of people deem undesirable, but which allow individuals to increase their happiness, or avoid pain. From the time of our birth, we are ignorant of what causes happiness, and what avoids pain, and by our very natures we desire to seek happiness and avoid pain.  Unfortunately, in this endeavor we have a limited amount we can learn from others because we are all unique in our situation, physiology, and psychology, and therefore each unique in the degree in which each behavior causes happiness or pain. If I am denied the liberty to experiment in the socially deemed vices, and thus find out for myself what provides me happiness and pain, then I am forever held in ignorance by the majority, and thus vulnerable to their tyranny.  This is just like how the Catholic Church used to read the passages of the bible in latin, and only latin, while nobody they spoke to could understand it. The church had the authority to make moral statements and carry out punishments against those who disobeyed them, but denied the individuals the ability to understand the logic behind the moral rules.  This situation only leads to corruption by those who claim superiority in morality at the expense of those entrapped in ignorance.

Any action upon degree can be a vice or a crime. If I make a median salary of 30+ thousand dollars, and  gamble 50 dollars it can be considered a vice, but if I gamble 20 thousand dollars and I am unable to feed my children, then it is a crime, but if a millionaire gambles that 20 thousand dollars we must label his activity a vice. This fact proves that vices cannot be outlawed due to the uniqueness of the situation for every person. This is why people have to be able to experiment for themselves in order to figure out the point at which their vices start to have negative consequences on others. Throughout the history of man, a near infinite variety of behaviors have been engaged in and the consequences have been discovered, but with all this experimentation moral philosophers have yet to draft a unified theory of morality,

“Yet it is in the politician’s mind that in the midst of endless variety of opinion, that he  has the right to say, in regard to any particular action, or course of action, “We have tried this experiment, and determined every question involved in it. We have determined it, not only for ourselves, but for all others. And, as to all those who are weaker than we, we will coerce them to act in obedience to our conclusion. We will suffer no further experiment or inquiry by any one, and, consequently, no further acquisition of knowledge by anybody.”

Another argument used by society to prevent the engaging in of vices is making the sale of such materials required to engage in said vice illegal.  The problem with this logic is that the very nature of a sale is moral. The sale has been voluntarily entered into by 2 consenting individuals, and thus has no immorality attached to it. What can be said is that the purpose of the objects being sold has some weight on the morality of the sale. If the object of a sale, such as alcohol, is used as a vice, then the merchant can at the most be considered an accomplice to a vice. In our legal system, and in our reason, we understand that an accomplice to an act cannot have any more responsibility for the buyer’s acts than the buyer himself, unless the merchant engaged in fraud or knowingly sold an object to a mentally deficient individual.

The question will doubtless come up that such vices as drinking and driving when posing a danger to other men are performed then the behavior is legitimately prevented. I respond to this, “ where does this principle stop?” There is reasonable evidence that when a women is pregnant she is more likely to have injuries from complications of that pregnancy or through the natural course of that pregnancy, is it legitimate to prevent the voluntary act of conception? In addition it is quite likely that specific parenting techniques, genetic defects, or the simple birth of the child into a bad environment will lead to crime. This is the argument that was used by the eugenicist, who claimed that only certain individuals should have the right to conceive children because of the potential harm to society that inferior individuals would have, but as a society we have flat out refused to accept it.

Now that the rationale behind the permitting of vices has been discussed, we must move onto the discussion of government. Lysander Spooner has a philosophy characteristic of a classical liberal, or an anarchist,  and shows it in his stance towards government as highlighted in this quote, “It is a natural impossibility that a government should have a right to punish men for their vices; because it is impossible that a government should have any rights except such as the individuals composing it had previously had as individuals. They could not delegate to a government any rights they did not themselves possess. They could not contribute to the government any rights, except such as they themselves possessed as individuals.” In order to bring a better understanding of the argument an example of a real life situation is needed. If I said that it is unacceptable for everybody to engage practicing religion, watching TV, playing  video games, reading fiction, rock collecting, and drinking, and claimed I had the right to kidnap those who engaged in such behavior, and then further enslave a dozen individuals to preside over his trial as a jury, and after a guilty verdict is found, I hold him hostage in my barn for a decade,  and claim the right to hold a gun up to everybody’s head demanding their wallets in order to pay for is captivity, and all under a contract which nobody which lives under it has signed, I would be laughed at, but when a majority claiming itself to be government does this we applaud it as if we are being protected from some great evil.

It is the contention of this writing that Lysander Spooner’s work, “Vices are not crimes” provides a very accurate and powerful explanation of the difference between vices and crimes, namely whether or not there is a victim of the crime other than the perpetrator.  It also tries to discuss the extent of the power government has over our lives, put more precisely, government should only be a voluntary association of individuals with rights no greater than the individuals who comprise that association

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What are the facts about global warming?

In his book, The Rational Optimist, Matt Ridley discusses how through trade, our species has achieved unprecedented growth and prosperity.  He even tackles head on what some might consider the most daunting issue of our age, climate change.  He shows how through our endless human ingenuity, and through free markets, we can continue to become more prosperous while being good shepherds of our environment.

Just to give some background, I’m going to list a few problems in the science of climate change, that  Matt Ridley highlights before I discuss how free markets are already working to overcome this challenge.  Contrary to what some alarmists claim, several studies of the last three decades of relatively slow average temperature changes seem to indicate a low sensitivity rather than a high sensitivity model of greenhouse warming.  Furthermore, the warming we are experiencing increases the amount of water vapor in the air which many people point out is a potent greenhouse gas, but science is showing that cloud coverage may cause as much cooling as water vapor causes warming. Also, another potent greenhouse gas, methane, has been erratically decelerating in emissions contrary to those who claim the warming will release detrimental amounts of methane trapped under the permafrost.  Perhaps most important, there have been warmer years in Earth’s history such as in medieval times, and about 6000 years ago, but the most frightening aspect of global warming, the tipping points, were never reached.  Finally, the biggest fear people have is with the melting ice caps, but the science shows that the Greenland land based ice caps are losing less than 1 percent of their mass per century, and at that rate they won’t disappear until 12000 AD.

When discussing global warming, there are several benefits that are rarely mentioned. In the warmest scenario used by the IPCC, we will have the least amount of hunger, and will require less land to meet our agricultural needs, even before human innovations are taken into account. We will be able to go from 11.6 percent of the landmass being used for agriculture down to 5 percent in 2100(  This will occur for several reasons, one of which being the warmer world will have greater rainfall, like it did during previous warm periods. The IPCC estimated that on net, the population at risk of water shortages falls by 2100 due to the estimated warming, and the increased rainfall that it brings ( Another reason for the diminished hunger and use of agricultural lands is the higher concentrations of CO2 in the atmosphere increasing the yields of crops; an already well known fact by greenhouse owners who enrich the air to 1000 ppm of CO2  to take advantage of this increased yield.

Considering there are many benefits to global warming that have been neglected to be mentioned, it is logical to expect that there are overstated costs to global warming, and you would be right to have that expectation. The most commonly mentioned cost to global warming is an all around worse hurricane season, in terms of winds, rainfall, and damage, but this is blatantly false.  During the 20th century we saw no increase in the number of, or maximum wind speeds of Atlantic hurricanes making land fall. Globally, tropical cyclone intensity hit a 30 year low in 2008. Also, the cost of Hurricanes is going up, but that has nothing to do with hurricanes, instead it is the result of building and insuring expensive coastal properties. Additionally, the number of deaths from hurricanes depends more on wealth and weather forecasts than the power of the hurricane. In 2007, well prepared Yucatan was hit by a category 5 hurricane, and suffered no casualties, while unprepared Burma had a similar storm, and lost the lives of 200,000. Another common myth about the potential costs of global warming is the increased susceptibility to malaria people will suffer, but the facts simply refute this notion.  Europe, North America, and Russia during the 19th and early 20th centuries when the temperatures were a full degree colder, experienced horrible cases of malaria. During the warming of the 20th century it has disappeared from these locations because people brought their cattle into barns giving mosquitoes another food source, people moved indoors at night behind closed windows, and they drained swamps and applied pesticides. Malaria expert Paul Reiter states that there is no evidence that climate change has played any role in the burgeoning tragedy of this disease at any altitude.  Finally, global warming is commonly thought to cause the extinction of coral reefs sometime this century. Those familiar with the subject of coral reefs admit that some reefs may die out if the world rapidly warms during the 21st century, but they also admit that the reefs in cooler regions may expand, and most importantly, the biggest danger to reefs are local threats such as silt, nutrient runoff, pollution, and overfishing of herbivorous fish that otherwise keep the reefs free from algae, not global warming.  Lastly, it is now clear that corals rebound quickly from the warming induced bleaching episodes within just a few years, which is thought to be how they survived the warming at the end of the last ice age.

Lets just for the sake of argument say that global warming is happening, and we have to do something about it. We still face the problem of calculating where to best invest our resources.  There have been several attempts at this. Nicholas Stern, who was appointed by the British government to estimate the potential future costs of global warming, calculated global warming to cost 29 dollars per ton of carbon dioxide. To achieve this he used discount rates far lower than the typical 6 percent, and as a result he overestimated the harm to the 22nd century by a factor of 100. According to him, your great, great, great grandfather whose standard of living was roughly that of a modern day Zambian, should have put aside most of his income to pay for your bills today. With higher discount rates we see that the cost of warming is far less than the harm done by climate mitigation measures today.  Economists estimate that a dollar spent on mitigating climate change brings 90 cents of benefits compared with 20 dollars benefit for each dollar invested in healthcare, and 16 dollars of benefit for each dollar spent on hunger.  What this means is climate mitigation measures make society worse off, and instead we should focus on alleviating real problems our society faces, such as hunger, healthcare, and malaria.

So, the last question I would like you to ponder is, if we move forward under the assumption that global warming is a real danger, but any investment in climate mitigation measures is a net harm to society, what can we do about global warming? Well fortunately this is the part where we talk about human ingenuity, and how that is helping us increase our prosperity while being more environmentally friendly. Italian engineer Cesare Marchetti once drew a graph of human energy use over the past 150 years, and highlighted how we moved from wood to coal to oil to gas, and how the percentage of carbon involved in combustion has declined. He said that by 2100 carbon will make up only 10 percent of our combustion, and will be replaced with hydrogen, as the trends have shown. Jesse Ausubel Predicts that if the energy system is left to its own devices, most of the carbon will be out of it by 2060 or 2070. What this means is, we will be able to meet our growing energy demands, while actually reducing our CO2 emissions.  Looking at solar panels, all it would take for this technology to be viable, and this is easier said than done, would be the capability to mass produce them at 200 dollars per square meter, and for them to have an efficiency of 12 percent. At that point they would be generating the equivalent of a barrel of oil for about 30 dollars. Seeing how it is not good to put all our eggs in one basket, engineers are close to being able to use sunlight to make hydrogen directly from water by using ruthenium dye as a catalyst, in effect replicating photosynthesis.  Finally, each year more than 200 billion tons of carbon are removed from the atmosphere by growing plants and plankton, and 200 billion tons are returned to it by rotting, digestion and respiration. Human activity adds less than 10 billion tons of carbon dioxide to this cycle, or about 5 percent. It might be possible for humans in this century to nudge the natural carbon cycle so that it can accept the additional 5 percent we put into it. This could be done by fertilizing desert stretches of ocean with iron phosphorus, by encouraging the growth of carbon rich oceanic organisms called salps, which sink to the bottom of the ocean taking the carbon dioxide with them, or by burying bio-char.

In conclusion, whether or not global warming is occurring on this planet, people are more than capable of adapting to whatever the environment throws at us, and all the while, increasing our standards of living dramatically.

References (ordered in the same order they appear)

  • the fact that the last 3 decades of relatively slow average temperature changes are more compatible with a low sensitivity, than a high sensitivity model of greenhouse warming
    • Lindzen, R.S. and choi, Y.S. 2009. On the determination of climate feedbacks from orbe data. Geophysical research letters. In press. Schwartz, S.E., R.J. Charlson, and H Rhode, 2007: quantifying climate change – too rosy a picture? Nature reports climate change 2:23-24, and Schwartz S.E. 2008 reply to comments by G Foster et al., R Knutti et al., and N Scafetta on heat capacity, time constant, and sensitivity of earth’s climate system. J. Geophys. Res. 113, D15105. (doi:10.1029/2008JD009872).
  • Clouds may slow warming as much as water vapor may amplify it.
    • Paltridge, G., Arking, and pook, M. 2009. Trends in middle- and upper- level tropospheric humidity from NCEP reanalysis data. Theoretical and applied climatology. (doi:10.1007/s00704-009-0117-x).
  • That the increase in methane has been erratically decelerating for years.
    • M.A.K. Khalil, C.L. Butenhoff and R.A. Rasmussen, Atmospheric methane: trends and cycles of sources and sinks, environmental science and technology 41:2131-7.
  • That there were warmer years in earth’s history in medieval times and about 6000 years ago yet no accelerations or tipping points were reached.
    • Loehle, C.2007. A 2000 year global temperature reconstruction based on non-treering proxies. Energy & environment 18:1049-58; and Moberg, A., D.M. Sonechkin, K Holmgren, N.M. Datsenko, and W. Karlen, 2005. Higly variable northern hemisphere temperatures reconstructed from low and high resolution proxy data. Nature 433:613-7
  • When discussing greenland’s ice, what is important is the land based ice cap, and that is what the following sources are discussing. This is because if you look at the other Greenland ice, it is ice that already is in the ocean, and this ice’s melting has no impact on sea level. The science says that the land based ice cap is losing mass at a rate of less than 1 percent per century, or put in another way, it will completely disappear at current trends around the year 12000 AD.  Of course there is a temperature at which the Greenland and Antarctic ice caps would disintegrate, but according to the IPCC scenarios if it is reached at all, it is certainly not going to be reached in the 21st century.
    • Even the highest estimates of Greenland melting Luthke, S.B. et al 2006.
    • Recent Greenland ice mass loss from drainage system from satellite gravity observant
    • ions. Science 314:1286-9.
    • If anything, the rate of melting in Greenland is slowing: van de wal, R.S.W. , et al 2008
    • Large and rapid melt induced velocity changes in the ablation zone of Greenland ice sheet science: 321:111
  • This effect, together with greater rainfall and new techniques, means that less habitat will probably be lost to farming in a warmer world. Indeed, under the warmest scenario, much land could revert to wilderness, leaving only 5 percent of the world under the plough in 2100, compared with the 11.6 percent today, allowing more space for wilderness.
  • All things being equal, warming will itself reduce the total population at risk from water shortage. On average rainfall will increase in a warmer world because of greater evaporation from the oceans, as it did in previous warm episodes such as the Holocene (when the arctic ocean may have been almost ice free in the summer), the Egyptian, roman, and medieval warm periods. The great droughts that changed history in western asia happened, as theory predicts, in times of cooling 8200 years ago, and 4200 years ago especially. If you take the IPCC’s assumptions and count the people living in zones that will have more water versus zones that will have less water, it is clear that the net population at risk of water shortage by 2100 falls under all their scenarios.  Although water will continue to be fought over, polluted, and exhausted, while rivers and boreholes may dry up because of over use, that will happen in a cool world as well.
  • The richest and warmest version of the future will have the least hunger, and will have ploughed the least extra land to feed itself. These calculations come not from barmy skeptics, but from the IPCC’s lead authors. And this is before taking into account the capacity of human societies to adapt to a changing climate.
    • Parry, M.L., Rosenzweig, C., Iglesias, A., Livermore, M. and Fischer, G, 2004: effects of climate change on global food production under SRES emissions and socio-economic scenarios. Global environment change 14:53-67
    • Levy, P.E., et al. 2004. Modelling the impact of future changes in climate, CO2 concentration and future land use on natural ecosystems and the terrestrial carbon sink. Global Environmental change 14:21-30.
  • During the warming of the 20th century there was no increase in either the number or the maximum wind speed of atlantic hurricanes making landfall. Globally, tropical cyclone intensity hit a 30 year low in 2008. The cost of hurricanes has increased greatly, but this is because of the building and insuring of expensive coastal properties, not because of storm intensity or frequency.
    • Pielke, R.A., Jr., Gratz, J., Landsea, C.W. , Collins, D., saunders, M.A. and Muslin, R, 2008: Normalized hurricane damage in the US:1900-2005. Natural Hazard Review 9:29-42
  • What about malaria? Malaria was rampant in Europe, north America, and Russia in the 19th and early 20th centuries when the world was nearly a degree colder than now. It disappeared, while the world was warming, because people kept their cattle in barns (giving mosquitoes another dining option), moved indoors at night behind closed windows, and to a lesser extent because swamps were drained and pesticides used.
    • Reiter, P. 2008. Global warming and malaria: knowing the horse before hitching the cart. Malaria Journal 7 (supplement 1): S3
  • There is no evidence that climate has played any role in the burgeoning tragedy of this disease at any altitude says Paul Reiter a malaria expert
    • Reiter P. 2007. Human ecology and human behavior. Civil society report on climate change. International policy network.
  • At the very most climate change has the possibility of increasing current deaths from malaria (a million people per year) by 30,000, an increase of 3 percent.
    • Goklany, I. 2004. Climate change and malaria. Science 306:56-7
  • The threats to species, rather than being climate change,  are: habitat loss, pollution, invasive competitors, and hunting.  Conservationists have been distracted from protecting species from the 4 causes of extinction listed above because of the environmental hysteria. Take coral reefs, which are suffering horribly from pollution, nutrient runoff and fishing – especially the harvesting of herbivorous fishes that otherwise keep reefs clean of algae.  It is true that rapidly heating the water by a few degrees can devastate reefs by bleaching out the corals symbiotic algae, as happened to many reefs in the especially warm el nino year of 1998. But bleaching depends more on the rate of change than the absolute temperature.  This must be true because nowhere on the planet, not even in the Persian gulf where water temperatures reach 35 degrees C is there a sea too warm for coral reefs. Lots of places are too cold for coral reefs, the Galapagos for example.
  • It is now clear that corals rebound quickly from bleaching episodes, repopulating dead reefs in just a few years which is presumably how they survived the warming lurches at the end of the last ice age. It is also apparent from recent research that corals become more resilient the more they experience sudden warmings.
    • Oliver T.A. and Palumbi, S.R. 2009. Distributions of stress-resistant coral symbionts match environmental patterns at local, but not regional scales. Marine ecology progress series 378:93-103 see also Baker, A.C. et al. 2004. Coral reefs: corals’ adaptive response to climate change. Nature 430:741, who say: “ the adaptive shift in symbiont communities indicates that these devasted reefs could be more resistant to future thermal stress, resulting in significantly longer extinction times for surviving corals than had previously been assumed.
  • Some reefs may die if the world warms rapidly in the 21st century, but others in cooler regions may expand.  Local threats to reefs are far more immediate than climate change.
    • Kleypas, J.A., Danabasoglu, G. and Lough. J.M. 2008. Potential role of the ocean thermostat in determining regional differences in coral reef bleaching events. Geophysical research letters 35: L03613. (doi:10.1029/2007GL032257)
  • Ocean acidification looks suspiciously like a back up plan by the environmental pressure groups in case the climate fails to warm: another try at condemning fossil fuels.  The oceans are alkaline, with an average pH of about 8.1, well above neutral (7). They are also extremely well buffered. Very high carbon dioxide levels could push that number down to about 7.95 by 2050 – still highly alkaline, and still much higher than it was for most of the last 100 million years. Some argue that this tiny downward shift in average alkalinity could make it harder for animals and plants that deposit calcium carbonate in their skeletons to do so, but this flies in the face of chemistry.  The reason the acidity is increasing is that the dissolved bicarbonate is increasing too – and increasing the bicarbonate concentration increases the ease with which carbonate can be precipitated out with calcium by creates that seek to do so. Even with tripled bicarbonate concentrations, corals show a continuing increase in both photosynthesis and calcification. This is confirmed by a rash of empirical studies showing that increased carbonic acid either has no effect or actually increases the growth of calcareous plankton, cuttlefish larvae, and coccolithophores.
    • Iglesias-rodriguez, M.D. et al. 2008. Phytoplankton calcification in a high CO2 world. Science 320:336-40. Other studies of the carbonate issue are summarized by Idso, C. 2009. CO2 Global warming and coral reefs. Vales lake publishing.
  • Nicholas Stern, who was appointed by the british government to estimate potential future costs doubled Richard tol’s figure of 14 dollars per ton and came to an estimate of 29 dollars per ton. How did he do this, and what does this mean? Stern used discount rates of 2.1 percent for the 21st century, 1.9 percent for the 22nd century and 1.4 percent for every subsequent century, compared with a typical discount rate of 6 percent. To put in context, the lower discount rates used by stern, multiplies the estimated harm to the 22nd century by a factor of 100. This also compares to saying that a life saved from coastal flooding in 2200 should have almost the same spending priority now as a life saved from AIDS or malaria today. Or put in a different way, it implied that your great, great, great grandfather, whose standard of living was roughly that of a modern day Zambian, should have put aside most of his income to pay your bills today.  With higher discount rates Stern’s argument collapses because even the worst case harm done by climate change in the 22nd century is far loss costly than harm done by climate mitigation measures today.
    • Weitzman, M 2007. Review of the stern review on the economics of climate.
  • If we want to most efficiently spend our money so as to improve the lives of our fellow man,  we should spend our efforts combating the problems of hunger, dirty water, indoor smoke, and malaria.  Economists estimate that a dollar spent on mitigating climate change brings 90 cents  of benefit compared with 20 dollars of benefit per dollar spent on healthcare and 16 dollars of benefit per dollar spent on hunger.  Keeping climate at 1990 levels, assuming it can be done,  (and assuming it can be done, could it be done without having negative unintended consequences,) would leave more than 90 percent of human mortality causes untouched.
    • Lomborg, B. 2008. How to get the biggest bang for 10 billion bucks . Wall Street Journal, 28 july 2008.
  • Italian engineer Cesare Marchetti once drew a graph of human energy use over the past 150 years as it migrated from wood to coal to oil to gas. In each case, the ratio of carbon atoms to hydrogen atoms fell, from 10 carbon for every 1 hydrogen in wood, to 1 in coal, to ½ in oil, to ¼ in methane.  In 1800 carbon atoms did 90 percent of combustion, but by 1935 it was 50 percent carbon and 50 percent hydrogen, and by 2100 90 percent of combustion may come from hydrogen – made with nuclear electricity most probably.
  • Jesse Ausubel predicts that “if the energy system is left to its own devices, most of the carbon will be out of it by 2060 or 2070.
  • This isn’t to say that renewable energy is inherently bad. On the contrary, it would be better to use them once they become more efficient, and the costs come down.  Once solar panels can be massed produced at 200 dollars per square meter, and with efficiency of 12 percent, they could generate the equivalent of a barrel of oil for about 30 dollars. Though the problem with solar and wind is their intermittences, and the need to develop more efficient batteries to store the energy produced.
  • It is possible that engineers may quite soon be able to use sunlight to make hydrogen directly from water with ruthenium dye as a catalyst – replicating photosynthesis in effect
    • Bullis, K. 2008. Sun+water=fuel. Technology review, November/December, 56-61
  • Each year more than 200 billion tons of carbon are removed from the atmosphere by growing plants and plankton,  and 200 billion are returned to it by rotting, digestion, and respiration. Human activity adds less than 10 billion tons to that cycle, or 5 percent. It cannot be beyond the with of 21st century humankind to nudge the natural carbon cycle into taking up 5 percent more than it releases by fertilizing desert stretches of the ocean with iron phosphorus; by encouraging the growth of carbon-rich oceanic organisms called salps, which sink to the bottom of the ocean, or by burying biochar – powdered charcoal made from crops.
    • Lebrato, M. and Jones, D.O.B. 2009. Mass deposition event of pyrosoma atlanticum carcusses off ivory coast of west Africa. Limnology and oceanography 54:1197-1209
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“Active Liberty” Book Review

In Justice Stephen Breyer’s book Active Liberty, he argues that the Constitution created a federal government embodying the principles of democracy and, as such, judges should defer to Congress as well as state governments as the representative bodies of the people unless they intrude on narrow fundamental rights. Though acknowledging negative rights, he defends fundamental rights like free speech primarily as social rights that enhance the democratic process, and he claims that these rights should not be as strongly protected when not related to the democratic process.

What basis does he give for this interpretation? He essentially provides three reasons: (1) there is a history of voting and active participation in local government in the United State prior to the Constitution, (2) the Constitution starts with the phrase “we the people” which he understands to refer to the present public rather than the people of 1787, and (3) people vote for officials to represent them under the Constitution. Since “we the people” vote for members of the federal government and since people actively participated in state/and local governments prior to the Constitution, the Constitution allegedly grants nearly unlimited power to the federal government.

Though he alludes in a single parenthesis in the book to the Commerce Clause, he neglects to mention that Article I Section 8 of the Constitution specifically enumerates powers to Congress, that the Tenth Amendment restricts the federal government to those enumerated powers, and that the Ninth Amendment rebuts any interpretative method that construes the Constitution to deny or disparage rights retained by the people. After all, why—since voting happens—should he? Given his reasoning, if part of the Constitution said “the sole power of the federal government shall be national defense,” then his arguments would override that because, after all, voting happens—meaning under Breyer’s reasoning that such a clause should not be interpreted to restrict the government. In fact, he does ignore such a clause since the Tenth Amendment restricts the government to national defense and a handful of other powers.

To more specifically respond to his justifications, all three of them provide evidence that the Constitution designed a government intended to reflect generally the will of the people, but they do not show what powers the Constitution granted the democratically run federal government. His first reason provides little more than context since the history predating the Constitution in no way describes the actual powers enumerated to the federal government. Regarding his second reason, “we the people” in context does not even support his position that the preamble emphasizes the democratic nature of the Constitution by referring always to the present generation rather than the founding generation. Though he claims that the phrase refers to the present public rather than “we the people of 1787,” his interpretation ignores that the preamble continues beyond the first three words to say, “and secure the blessings of liberty to ourselves and our posterity” (emphasis added). As it references future generations, the Preamble shows that the Constitution created a government of fixed binding rules for the people and their posterity. Thirdly, the fact that various parts of the Constitution describe direct and indirect electoral processes does make government officials ultimately accountable to the people, but it does not describe what the government may do under the Constitution. The powers enumerated to Congress, and not the electoral process, determines the scope of the federal government’s powers.

More disappointing than his complete neglect of the Tenth Amendment, he also does not attempt to reconcile his support for judicial deference to enable Active Liberty with his support for the rights protected in cases not mentioned in this book such as Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas (contraception use, abortion, and sodomy respectively). In fact, in his chapter on privacy, he quite explicitly says that it would be best for issues of privacy to be handled by the democratic people exercising their Active Liberty. Similarly, when covering the First Amendment, he limits its purpose to protecting the social benefits of speech in a democratic society, and he denies that the First Amendment strongly protects all other speech—even though its text quite explicitly protects a much broader array of rights. In contrast, an interpretation that protects the right to use contraception, have an abortion, and engage in sodomy removes these issues from the purview of the democratic process and limits the Active Liberty Breyer otherwise defends, but he supports these privacy interests nonetheless. Why? Just as he remains silent on why the Tenth Amendment does not meaningfully restrict the federal government, he remains equally silent on why the Due Process Clause protects this arbitrary hodgepodge of rights.

Though one has to wonder under Breyer’s reasoning why these specific rights deserve protection, one can more importantly ask why Breyer so narrowly limits the rights free from the clutches of Active Liberty. If people have a right to engage in sodomy in their home, then why does Active Liberty allow for the criminalization of prostitution done in the same home? If people have a right to use contraception in their home, then why does Active Liberty allow for the criminalization of medical marijuana use in the same home? For each arbitrary right that Breyer deems outside the scope of Active Liberty, many more rights could be protected under similar reasoning, but Breyer, at least for rights unrelated to promoting the democratic process, does not even attempt to produce a principle to determine which unlisted rights Active Liberty cannot violate.

As with most living constitutionalists, Breyer ignores substantial sections of the Constitution in determining his judicial philosophy. Despite his enormous focus on the electoral process described in the Constitution, he ignores that Article I Section 8 only enumerates a limited set of powers to the federal government, that the Tenth Amendment restricts the federal government to its delegated powers, and that the Ninth Amendment protects unlisted rights from being denied or disparaged. With his focus on Active Liberty, he provides no justification for why Active Liberty deserves restrictions in cases other than those that promote the democratic process, and more importantly no principle to explain the random rights that are deemed outside the scope of Active Liberty. Rather than a presumption of constitutionality due to its democratic nature, the Constitution should be interpreted to have a presumption of liberty due to the many limitations it imposes on government power. The amount of the Constitution about which Breyer remains silent when attempting to justify deferring to Active Liberty simply reveals how much of the Constitution must be ignored to come to such a conclusion.

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