Archive for the ‘Civil liberties’ Category
Despite my best efforts to ignore the subject, I’ve been forcibly informed that on Tuesday, March 26, 2013 the US Supreme Court will begin hearing arguments on the pending gay marriage case. The case interests me no more than the arguments amongst prisoners in Plato’s cave about the shapes of shadows flitting on the wall (Republic 7.514ff).
One group with a childish concept of ‘rights’ will face another with an equally erroneous concept of ‘morality.’ No arguments based on logic or explicit first principles will be raised. The names associated with the foundations of moral philosophy, names like Plato, Aristotle, Zeno, Epicurus, and Cicero, will not be mentioned. One faction of a dumbed-down, culturally illiterate society will square off against the other. They should name the case Folly vs. Folly.
Her blindfold will spare us seeing Lady Justice roll her eyes in exasperation.
I suspect the Supreme Court will ultimately endorse gay marriage, since, Reason long since having fled the halls of the Court, the matter will be decided politically. If so, some good may come from the Supreme Court placing itself so far out on a limb that all Americans will start to see that it is better for us have these issues decided by logic and good-will, not animosity, power-politics, and the machinations of demagogues.
But since Fate has thrust the matter before me, I will weigh in on it.
Proponents of gay marriage assert that marriage is a right. Now is this true? Is it obviously true? Should we not begin by defining what a right is, and then supply a reasoned argument why marriage is a right?
And if marriage is a right, is it a civil (legal) right or a natural right? A natural right is an inalienable right, one that exists, say, in a state of primitive nature before governments are instituted. Consider this example. If two strangers (let’s say a man and woman, just to keep the example simple) accidentally wash up on a deserted island and then decided to start making babies, they would not, and could not, be married. Marriage would have no meaning. Marriage is a category that produces a relationship of a pair of people to the rest of society. If there is no society, it is meaningless to speak of marriage.
Now someone might reply. “No, you are wrong. It is God who marries two people.” Well, fair enough — we can easily clarify that. Marriage exists both as a religious and a secular institution in today’s society. We are not considering here the issue of religious marriage. That is for churches to consider, not the Supreme Court. Our focus of attention here is exclusively secular marriage, of the kind that would require two people to get a marriage license, register at City Hall, check “married” on a census survey, etc.
Now since, as our example suggests, a secularly defined marriage does not exist without a society, it would appear to be more a civil right than a natural right. Again: having sex is a natural right; but being designated by society as “married” is not a natural right.
This suggests that marriage, if a right at all, is a civil right. Civil rights are decided by legislation. There is nothing inherent in the nature of civil rights that unconditionally demands that all people, in every case, are entitled to exactly equal treatment. Cases in point: children are not allowed to drink alcohol; felons are not allowed to vote (in some states). But let’s stop with this. There is plenty of room to argue either way here — that gay couples should or should not, based on issues of justice and society’s best interests, enjoy a civil right to be married. This should be discussed, but it should be done in a constructive and unprejudiced manner.
However it must also be asked whether marriage is a right at all. There are other paradigms for looking at marriage which seem at least as plausible.
We can, for example, see marriage as a privilege. Let’s again consider the state of a primitive, aboriginal society, before the development of a formal government. In a clan or small tribe, we can likely find examples of the principle that not everybody is sanctioned by the community to be married. Consider the nature of marriage: it is a ceremony attended by many others, perhaps the whole village. It is a cause for community celebration. There are dowries to be paid. Moreover, the married couple typically must show some evidence of being able to contribute to the life and welfare of the community — as judged by the standards and values of that community. In the traditional wedding ceremony, we still have the part that says, “if anyone has any just reason why this couple should not be united, let them speak now or forever hold their peace.” Presumably this part is in there for a reason. Doubtless there have been many times when this option has been exercised. Any number of objections might be raised. “The man is a lout, an alcoholic!” “The woman is unfaithful!” “They are both lazy good-for-nothings, who never help with the community labor, and will do nothing but produce more mouths to feed.” The point is that the community has some, and perhaps a great deal to say about who should be allowed to be married. If marriage is a privilege, how else is a community to decide this except by legislation, or at the ballot box. That is what the citizens of California did: they went to the ballot box, and the majority voted against gay marriage.
Do I agree with that? I’ll say this much: that an issue like this is of sufficient gravity that it should not be decided merely by a simple majority vote. Here is a case where a super-majority — say a 2/3 or 75% majority might demonstrate sufficient consensus to decide an issue.
Or what if, along similar lines, we see marriage as an award, an honor granted to certain couples based on merit? If we go back to the origins of marriage in primitive society, that is not an entirely implausible model, and not one that should be dismissed without fair consideration. If a young couple has made a sufficiently good impression on their family and village, people will help them out with a place to live, gifts, etc., as though to say, “we’d like to have more people like you; get working on it!”
In that case it is absurd to claim that everyone is entitled to “equal treatment under the law.” If marriage is an award, then one can no more insist that everyone is equally entitled to marriage than that everyone equally deserves a ticker-tape parade just because an astronaut gets one, or a reception with the president because the Super Bowl winners get one. But, you might ask, who decides who gets the ‘award’ of marriage and who doesn’t. That is society’s prerogative, just as in the case of other awards.
No doubt in the Supreme Court case someone will raise the issue of uniform enforcement: if a gay couple is married in Massachusetts, and it isn’t honored in California, that will make the administrative tasks of the federal government impossible. That is a specious argument. By this reasoning we should simply eliminate the individual states altogether as administratively inconvenient, and adopt a single, uniform national code of law. Further, by such reasoning any state could pass a strange law concerning marriage (e.g., permitting marriage for children under the age of 12) and the other states would have to honor it.
There is one potentially interesting topic likely to emerge in the case. If gay marriage is considered a right based on “equal treatment under the law,” how can society then deny a right to polygamous marriage? What will be interesting is to see the fancy footwork as the pro-gay marriage attorneys try to side-step that question.
Meanwhile the United States is in a state of perpetual war, a matter which concerns all our welfare and basic issues of justice 100 times more than the issue of gay marriage.
No comments please. This subject hold no interests for me. I write only to bemoan the fact that this topic is being mishandled by all parties.
Written by John Uebersax
March 25, 2013 at 12:55 am
In view of today’s Supreme Court decision upholding the individual health insurance mandate, I’d like to make a few brief comments on certain legal, religious, and moral implications.
As the law now stands, (1) citizens may opt out of buying into the national health insurance system based on a religious conscience exemption; but (2) only members of certain state-recognized religions, like Christian Science, can apply the exemption. This is a huge problem. The federal government has no business telling us what is and what isn’t religious conscience. If someone, unconnected with an established religion, were to decide, based on honest and informed examination of conscience, that buying into a national health insurance plan is immoral, then he or she should have the same right to exemption as a Christian Scientist. This principle – which affirms the conscience of the individual – is explicitly stated in Article 18 of the Universal Declaration of Human Rights:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
The operative words here are “either alone or in community”, with emphasis on “alone”: you don’t have to be a member of any specific church to have a conscience, or to have the right to act on that conscience.
It is entirely possible that a person’s moral reasoning may following along these lines:
1. At least half of all health problems are the result of wrong moral choices (overeating, intemperance, risky practices, etc.).
2. When bad health is the result of wrong moral choices, the ensuing pain and inconvenience motivates one to improve morally (or to not make moral errors in the first place).
3. If medical treatment is too inexpensive, it reduces motivation to avoid or minimize the immoral choices that produce sickness.
4. To force other people to subsidize a system that, in a sense, encourages immoral/unhealthy life choices is unethical: it forces the moral people to be complicit in a system that hurts others.
5. Moreover, it is basically unjust to require one person to pay for the consequences of someone else’s wrong moral choices.
6. Further, the entire health industry today is a Tower of Babble – a vast, corporate-run system that subordinates human welfare to profits and materialistic values. By marrying this monstrous system to the federal government, it threatens to make things worse, and also more difficult to change.
An individual could therefore potentially conclude that he or she has a moral duty – to others, to oneself, and to society – to opt out of the national health insurance plan.
Where does this leave us?
We’ll have to see what happens in the coming weeks. But it appears there will be an important opportunity here for philosophers, moralists, theologians and civil libertarians. The first three groups need to flesh out the basic argument sketched above concerning the link between physical health and health of the soul, and the moral implications. I would suggest that this argument is fully consistent with Greco-Roman philosophy (e.g. Stoic and Natural Law ethics), as well as traditional religious (Christian, Jewish, Buddhist etc.) thinking. Civil libertarians will have to tackle the problem of the federal government presuming to require affiliation with pre-designated religious organizations as grounds for a religious conscience exemption.
p.s. Here is the law relating to religious exemption from the Patient Protection and Affordable Care Act (PPACA):
RELIGIOUS CONSCIENCE EXEMPTION — Such term shall not include any individual for any month if such individual has in effect an exemption under section 1311(d)(4)(H) of the Patient Protection and Affordable Care Act which certifies that such individual is a member of a recognized religious sect or division thereof described in section 1402(g)(1) and an adherent of established tenets or teachings of such sect or division as described in such section.
and here is section 1402(g)(1) of the IRS tax code:
(g) Members of certain religious faiths
Any individual may file an application (in such form and manner, and with such official, as may be prescribed by regulations under this chapter) for an exemption from the tax imposed by this chapter if he is a member of a recognized religious sect or division thereof and is an adherent of established tenets or teachings of such sect or division by reason of which he is conscientiously opposed to acceptance of the benefits of any private or public insurance which makes payments in the event of death, disability, old-age, or retirement or makes payments toward the cost of, or provides services for, medical care (including the benefits of any insurance system established by the Social Security Act). Such exemption may be granted only if the application contains or is accompanied by –
(A) such evidence of such individual’s membership in, and adherence to the tenets or teachings of, the sect or division thereof as the Secretary may require for purposes of determining such individual’s compliance with the preceding sentence, and
(B) his waiver of all benefits and other payments under titles II and XVIII of the Social Security Act on the basis of his wages and self-employment income as well as all such benefits and other payments to him on the basis of the wages and self-employment income of any other person, and only if the Commissioner of Social Security finds that –
(C) such sect or division thereof has the established tenets or teachings referred to in the preceding sentence,
(D) it is the practice, and has been for a period of time which he deems to be substantial, for members of such sect or division thereof to make provision for their dependent members which in his judgment is reasonable in view of their general level of living, and
(E) such sect or division thereof has been in existence at all times since December 31, 1950.
An exemption may not be granted to any individual if any benefit
or other payment referred to in subparagraph (B) became payable (or, but for section 203 or 222(b) of the Social Security Act, would have become payable) at or before the time of the filing of such waiver.
Written by John Uebersax
June 28, 2012 at 8:08 pm
Posted in Civil liberties, Constitution, Constitutionality, Freedom of religion, Health policy, Healthcare, Healthcare reform, Law, Moral philosophy, Philosophy, Politics, Preventive health, Public debt, Public health, Reform in government, religion, Social justice, Social philosophy, Statism, Values
Source: Cicero, De officiis. (Walter Miller, transl.; Loeb Classical Edition; Latin/English parallel text). Harvard University Press, 1913.
De officiis (On Moral Duties), 1.11.33-1.13.41, 3.29.107.
11. Again, there are certain duties that we owe even to those who have wronged us. For there is a limit to retribution and to punishment; or rather, I am inclined to think, it is sufficient that the aggressor should be brought to repent of his wrong-doing, in order that he may not repeat the offence and that others may be deterred from doing wrong.
 Then, too, in the case of a state in its external relations, the rights of war must be strictly observed. For since there are two ways of settling a dispute: first, by discussion; second, by physical force; and since the former is characteristic of man, the latter of the brute, we must resort to force only in case we may not avail ourselves of discussion.
 The only excuse, therefore, for going to war is that we may live in peace unharmed; and when the victory is won, we should spare those who have not been blood-thirsty and barbarous in their warfare. For instance, our forefathers actually admitted to full rights of citizenship the Tusculans, Aequians, Volscians, Sabines, and Hernicians, but they razed Carthage and Numantia to the ground. I wish they had not destroyed Corinth; but I believe they had some special reason for what they did — its convenient situation, probably — and feared that its very location might some day furnish a temptation to renew the war. In my opinion, at least, we should always strive to secure a peace that shall not admit of guile. And if my advice had been heeded on this point, we should still have at least some sort of constitutional government, if not the best in the world, whereas, as it is, we have none at all.
Not only must we show consideration for those whom we have conquered by force of arms but we must also ensure protection to those who lay down their arms and throw themselves upon the mercy of our generals, even though the battering-ram has hammered at their walls. And among our countrymen justice has been observed so conscientiously in this direction, that those who have given promise of protection to states or nations subdued in war become, after the custom of our forefathers, the patrons of those states.
 As for war, humane laws touching it are drawn up in the fetial code of the Roman People under all the guarantees of religion; and from this it may be gathered that no war is just, unless it is entered upon after an official demand for satisfaction has been submitted or warning has been given and a formal declaration made. Popilius was general in command of a province. In his army Cato’s son was serving on his first campaign. When Popilius decided to disband one of his legions, he discharged also young Cato who was serving in that same legion. But when the young man out of love for the service stayed on in the field, his father wrote to Popilius to say that if he let him stay in the army, he should swear him into service with a new oath of allegiance, for in view of the voidance of his former oath he could not legally fight the foe. So extremely scrupulous was the observance of the laws in regard to the conduct of war.
 There is extant, too, a letter of the elder Marcus Cato to his son Marcus, in which he writes that he has heard that the youth has been discharged by the consul [Lucius Aemilius Paulus (B.C. 168)], when he was serving in Macedonia in the war with Perseus. He warns him, therefore, to be careful not to go into battle; for, he says, the man who is not legally a soldier has no right to be fighting the foe.
12. This also I observe — that he who would properly have been called “a fighting enemy” (perduellis) was called “a guest” (hostis), thus relieving the ugliness of the fact by a softened expression; for “enemy” (hostis) meant to our ancestors what we now call “stranger” (peregrinus). This is proved by the usage in the Twelve Tables: “Or a day fixed for trial with a stranger” (hostis). And again: “Right of ownership is inalienable for ever in dealings with a stranger” (hostis). What can exceed such charity, when he with whom one is at war is called by so gentle a name? And yet long lapse of time has given that word a harsher meaning: for it has lost its signification of “stranger” and has taken on the technical connotation of “an enemy under arms.”
 But when a war is fought out for supremacy and when glory is the object of war, it must still not fail to start from the same motives which I said a moment ago were the only righteous grounds for going to war. But those wars which have glory for their end must be carried on with less bitterness. For we contend, for example, with a fellow-citizen in one way, if he is a personal enemy, in another, if he is a rival: with the rival it is a struggle for office and position, with the enemy for life and honour. So with the Celtiberians and the Cimbrians we fought as with deadly enemies, not to determine which should be supreme, but which should survive; but with the Latins, Sabines, Samnites, Carthaginians, and Pyrrhus we fought for supremacy. The Carthaginians violated treaties; Hannibal was cruel; the others were more merciful. From Pyrrhus we have this famous speech on the exchange of prisoners:
“Gold will I none, nor price shall ye give; for I ask none;
Come, let us not be chaff’rers of war, but warriors embattled.
Nay; let us venture our lives, and the sword, not gold, weigh the outcome.
Make we the trial by valour in arms and see if Dame Fortune
Wills it that ye shall prevail or I, or what be her judgment.
Hear thou, too, this word, good Fabricius: whose valour soever
Spared hath been by the fortune ofwar— their freedom I grant them.
Such my resolve. I give and present them to you, my brave Romans;
Take them back to their homes; the great gods’ blessings attend you.”
A right kingly sentiment this and worthy a scion of the Aeacidae.
13.  Again, if under stress of circumstance individuals have made any promise to the enemy, they are bound to keep their word even then. For instance, in the First Punic War, when Regulus was taken prisoner by the Carthaginians, he was sent to Rome on parole to negotiate an exchange of prisoners; he came and, in the first place, it was he that made the motion in the Senate that the prisoners should not be restored; and in the second place, when his relatives and friends would have kept him back, he chose to return to a death by torture rather than prove false to his promise, though given to an enemy.
 And again in the Second Punic War, after the Battle of Cannae, Hannibal sent to Rome ten Roman captives bound by an oath to return to him, if they did not succeed in ransoming his prisoners; and as long as any one of them lived, the censors kept them all degraded and disfranchised, because they were guilty of perjury in not returning. And they punished in like manner the one who had incurred guilt by an evasion of his oath: with Hannibal’s permission this man left the camp and returned a little later on the pretext that he had forgotten something or other; and then, when he left the camp the second time, he claimed that he was released from the obligation of his oath; and so he was, according to the letter of it, but not according to the spirit. In the matter of a promise one must always consider the meaning and not the mere words.
Our forefathers have given us another striking example of justice toward an enemy: when a deserter from Pyrrhus promised the Senate to administer poison to the king and thus work his death, the Senate and Gaius Fabricius delivered the deserter up to Pyrrhus. Thus they stamped with their disapproval the treacherous murder even of an enemy who was at once powerful, unprovoked, aggressive, and successful.
 With this I will close my discussion of the duties connected with war.
Pirates, the “common foe of all the world” not “lawful enemies”
In 3.29.107, Cicero makes these remarks:
 Furthermore, we have laws regulating warfare, and fidelity to an oath must often be observed in dealings with an enemy: for an oath sworn with the clear understanding in one’s own mind that it should be performed must be kept; but if there is no such understanding, it does not count as perjury if one does not perform the vow. For example, suppose that one does not deliver the amount agreed upon with pirates as the price of one’s life, that would be accounted no deception—not even if one should fail to deliver the ransom after having sworn to do so; for a pirate is not included in the number of lawful enemies, but is the common foe of all the world (communis hostis omnium); and with him there ought not to be any pledged word nor any oath mutually binding.
Source: Cicero, De officiis. (Walter Miller, transl.; Loeb Classical Edition; Latin/English parallel text). Harvard University Press, 1913.
- Harrer, G. A. Cicero on Peace and War. Classical Journal, 14(1), 1918, pp. 26–38.
Written by John Uebersax
April 19, 2012 at 4:53 pm
Posted in Afghan war, Anti-war, Civil liberties, Constitution, Constitutionality, Culture of peace, Drone strikes, History, Imperialism, International Affairs, Iraq War, Just War Doctrine, Law, Militarism, Moral philosophy, News, Pakistan, Peace, Philosophy, Politics, Quotes, Social justice, Social philosophy
“I am not among those who fear the people. They, and not the rich, are our dependence for continued freedom. And to preserve their independence, we must not let our rulers load us with perpetual debt. We must make our election between economy and liberty, or profusion and servitude. If we run into such debts, as that we must be taxed in our meat and in our drink, in our necessaries and our comforts, in our labors and our amusements, for our callings and our creeds, as the people of England are, our people, like them, must come to labor sixteen hours in the twenty-four, give the earnings of fifteen of these to the government for their debts and daily expenses; and the sixteenth being insufficient to afford us bread, we must live, as they now do, on oatmeal and potatoes; have no time to think, no means of calling the mismanagers to account; but be glad to obtain subsistence by hiring ourselves to rivet their chains on the necks of our fellow-sufferers. Our landholders, too, like theirs, retaining indeed the title and stewardship of estates called theirs, but held really in trust for the treasury, must wander, like theirs, in foreign countries, and be contented with penury, obscurity, exile, and the glory of the nation. This example reads to us the salutary lesson, that private fortunes are destroyed by public as well as by private extravagance.
“And this is the tendency of all human governments. A departure from principle in one instance becomes a precedent for a second; that second for a third; and so on, till the bulk of the society is reduced to be mere automatons of misery, and to have no sensibilities left but for sinning and suffering. Then begins, indeed, the bellum omnium in omnia, which some philosophers observing to be so general in this world, have mistaken it for the natural, instead of the abusive state of man. And the fore horse of this frightful team is public debt. Taxation follows that, and in its train wretchedness and oppression.”
– Thomas Jefferson, Letter to Samuel Kerchival. vii, 14. Ford Ed., x, 41. (M., 1816.)
“Several aspects of the legislation are troubling from a constitutional perspective. However, not all of these aspects are raised in the state lawsuits. Ultimately, the Supreme Court may confront the constitutionality of the legislation in the context of a lawsuit brought by an individual citizen, not the state governments.
“For example, the mandate requiring individuals to purchase health insurance raises potential problems, not merely because the congressional authority to pass it is questionable, but also because it interferes with individual rights regarding health care choices…”
Read full article here.
Written by John Uebersax
April 17, 2010 at 5:25 pm
Law professor Steven Willis suggests that the strongest argument against the constitutionality of the Health Care Act is that it involves an un-apportioned capitation tax.
According to Article 1, section 9 of the U.S. Constitution:
No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.
The Patient Protection and Affordable Care ACT of 2010 requires all individuals… to pay a ‘penalty’ on their failure to act, i.e., on their failure to purchase proper health insurance or to enroll in a proper plan… Certainly, the ‘penalty’ is not a ‘duty’ or an ‘impost’ and is not constitutional under either of those terms. Hence, in my opinion, the only thing the ‘penalty’ can be is a direct tax and, more particularly, a Capitation or per person tax. Such a tax is constitutional, but only if apportioned among the states consistent with the census. This Lack of Health Care Tax is not properly apportioned. Hence it is unconstitutional.
Proper apportionment (i.e., amount of tax) could potentially reflect factors like age distribution of a state’s population and their general health status, and whether the state has its own provisions for public healthcare.
For details read the entire article here.
Unconstitutionality of the Individual Health Insurance Mandate: A Freedom of Religion Argument
I am surprised that nobody has yet raised this concern (but in a way, not surprised, because today many people have a fairly mistaken view of what religion is generally). The argument here is that modern medical practice is basically a very specific and arbitrary worldview — one based on metaphysical assumptions that some religions and spiritual traditions disagree with.
To begin, one may simply note that there are established religious denominations in the United States that do not believe in medical treatment. The most notable example is Christian Science.
To be honest, Christian Scientists should be complaining loudly against this legislation. The only news story I’ve seen on the subject, unfortunately, was to the effect that some members of the church lobbied for legal provisions to allow their centers to receive funding. What this really shows is that, predictably, at least some modern Christian Scientsts have backed down from the original principles of their relgion. Likely there are still some who hold the traditional view.
In case anyone needs a reminder: Christian Science was founded by Mary Baker Eddy, in the 19th century. One of her core teachings was that an illness is a physical manifestation of a spiritual disorder. Physical illness is cured not by medicine, but by prayer and rectification of whatever is wrong with the soul.
That is not by any means a new or especially rare view among Christians. Since the time of Jesus, it has long been accepted by Christians that physical healing may occur by praying or the laying on of hands. So, if one really believe this, then isn’t resorting to physical medicine a sign of lack of faith?
In general we can broadly distinguish between two radically different worldviews, naming them Materialism and Idealism. Modern society is based on materialism, which holds that material reality — things like atoms and electrons — is the ultimate reality, and that sickness and disease are a products of interactions and events at the material level.
In contrast, Idealism holds that the ultimate reality is mental or spiritual: basically, all the world is a dream — either in our own minds, or in the mind of God.
Now if you are a Materialist, then it makes perfect sense to treat diseases with physical medicine. But if you are an Idealist — and that includes not just Christian Scientists, but many others — including many Buddhists and practicioners of certain forms of yoga — then the way to cure disase is by changing your thoughts.
As a basis for a legal argument, this is not as far-fetched as it might at first seem. In The American Religion, noted literary critic Harold Bloom observed that American culture is fundamentally rooted in what he labeled “gnosticism”, but which in this context could be equally well be called metaphysical Idealism. Most Americans believe in miracles, and that ones thinking can shape reality in a non-material way.
Most Americans today perhaps are somewhere on a continuum between radical Materialism and radical Idealism. But, in theory, a person could identify as a pure Idealist, and on that basis claim it is against his or her religious principles to use medical treatment. If this were tested in the Supreme Court, if the defendent (the person refusing to buy insurance) were sincere, and if the case were knowledgeably presented, then it would appear to be a fairly open-and-shut case: a person could refuse to participate in medical treatment for genuine religious reasons.
If this were a specious or insincere argument, that would be one thing. But what’s involved here is a very genuine tension between radically different worldviews. It should be very plain that the Constitution does not require a citizen to subscribe to the “religion” of metaphysical Materialism.