"Positive" rights and "negative" rights

If you have to use force on someone else in order for you to have something, you do not have a “right” to that object or service. This was plainly obvious for most of our history, but many people (including many in positions of authority on our government) have lost sight of this principle.

In order for my to have the right to free speech or freedom of religion, no one has to give up anything. You may disagree with or even be offended by what I say, but you do not have to help disseminate my speech. I can have the right to free speech, the right to bear arms, the right to due process or the right to be secure from unreasonable searches without taking anything away from anyone else. President Obama calls these “negative” liberties because they prohibit government from doing things to the people under its authority.

Obviously, there are limits to these “negative” liberties. You may not stand outside the mayor’s bedroom window at 3:00 am and scream into a megaphone, regardless of the Constitution’s protection of the right to petition government for redress of grievances. I do not need to list all of the exceptions, but the exceptions are just that – exceptions. Those exceptions are both rare and limited in scope, and limiting our rights requires a compelling interest by society. We should not sacrifice the normal on the alter of the abnormal.

Today, we see a “right” to something that is not and cannot be a “right” in the classic sense of the term. In order for someone to have a “right” to health care, government must forcibly confiscate wealth from others under threat of violence. In order to provide someone a “right” to health care, the private property rights of others must be abridged. We as a society may decide that government welfare programs are good public policy, but we should not confuse forced redistribution of wealth with the beneficiaries having a “right” to that wealth.

And this brings us to the debate over whether or not employers should be forced to provide chemical birth control to their employees – the essence of the Hobby Lobby case before the Supreme Court. Over and over again, Leftists have bemoaned the danger of employers “forcing their religious beliefs on their employees.” According to this backward definition, if someone does not give you money for what you want, or buy it themselves and give it to you directly, they are violating your “rights” or they are “forcing” their religion on you. It shows how far we have fallen as a culture when that argument is not immediately rejected as absurd.

In a free society, we should be free to make choices (within reason) without being forced to operate the way government demands. If an employer does not want to provide birth control because the owner’s faith teaches birth control is wrong, the employee is free to purchase it herself or to seek other employment that provides the benefits she wants. Government should stay out of it and not mandate birth control coverage. Remember that a government that can mandate birth control coverage by a private employer can also prohibit it.

Random observation

Coffee cans are so much easier to open now than they were 20 years ago. Just pull off the top, and no can opener is needed. I remember when I was a freshman in college and I purchased a can of coffee. I realized I should have also purchased a can opener, because I didn’t have one. I did, however, have a claw hammer…

Corrupt prosecutors in Durham, North Carolina

A must-read blog post on WashingtonPost.com has the following quote:

In an alternate universe, the mixed-up politics of the Duke lacrosse case — with progressive groups and personalities largely lining up with the prosecutor, and conservative groups and personalities largely lining up with the defense — might have presented a unique opportunity. Once it was clear that the players were innocent, and that Nifong had lied and withheld evidence, conservatives could perhaps have had their eyes opened to the inadequacies of the criminal justice system, and been brought on board to move for reform.

Read more at the Washington Post website.

It was the fraudulent “rape” scandal in Durham that opened my eyes to government abuse of power, and the fact that men and women in law enforcement are no less vulnerable corruption than anyone else in a position of authority. Sadly, most conservatives have not come to the same conclusion I have. This is strange, considering how many conservatives have a healthy distrust of government. I had hoped the more libertarian-leaning Tea Party movement would bring more awareness of this kind of dangerous corruption, but sadly that has not panned out either.

In fact, if you look at the Bill of Rights, it is clear how much the founding fathers were worried about government abuse of power in the area of law enforcement. The Fourth Amendment protects against unreasonable searches and requires a specific warrant, the Fifth Amendment requires due process for people charged with a crime, the Sixth Amendment requires a speedy trial and protects the right to gather evidence, and the Eighth Amendment bans excessive bail, excessive fines and cruel and unusual punishments.

The fact that the founders thought it was important enough to place these protections in the Constitution should tell us something. Conservatives often talk about returning to the core values in our founding documents but that principle does not transfer to criminal prosecutions nearly as much as it should. Instead, we sneer at people “lawyering up” and bemoan the cost of due process and civil liberties protections for people accused of crimes. But as I pointed out in a letter to the editor last summer, if the Duke lacrosse players “were poor and black, they would likely be in prison today. Thankfully, they had the financial resources to fight a corrupt system.”

If you do not believe that, look at the Central Park Five.

I think a lot of the modern political disrespect of civil liberties dates to the unrest of the 1960’s. People were seeing riots in the streets, and crime was rising. Richard Nixon declared a “War on Drugs” that has been ramped up ever since, with military-grade firepower (including tanks) that is more appropriate for a literal war than for law enforcement. Republicans hammered Democrats as being soft on crime (a criticism that was sometimes deserved) to great political benefit and Democrats were determined to prove they were every bit as tough on crime as Republicans.

The problem with these policies is that “tough on crime” has translated to being tough on civil liberties, and we as a society often shrug at misconduct or outright corruption in law enforcement. When case after case after case is exposed of innocent people who are framed for crimes they did not commit because corrupt prosecutors hid evidence or lied to the jury, we dismiss it as an “isolated incident.”

But if anyone should be worried about corruption in law enforcement and threats to our civil liberties, it should be conservative Christians and philosophical libertarians within the Republican Party. Christians should remember the warning in Jeremiah 17:9 that “the heart is deceitful above all things, and desperately wicked” and philosophical libertarians and Tea Party conservatives need to recognize that law enforcement is composed of fallen men and women who are every bit as prone to corruption as someone who works for the Internal Revenue Service, the Environmental Protection Agency or a local planning and zoning department.

Dan Coats, Ukraine and vacationing in Siberia

My latest editorial at Hoosier Access:

In one sense, Putin is a cartoon character, with his many shirtless pictures and his campaign to encourage attractive women to take their clothes off in support of his presidency. But he’s also a former KGB apparatchik who said the collapse of the genocidal Soviet Union was a great historical tragedy. He has shown his militaristic ambitions in his invasion of Georgia a few years ago.

Read more at Hoosier Access.

A completely backwards orientation on student safety

A story in the Herald-Times last week is a perfect example of how far we have fallen as a society and how little regard we have for our responsibilities as private citizens and parents. From the March 20 article, “Schools seek parents’ help in keeping children safe online,” carefully consider the following quote:

While MCCSC strives to educate its students about using technology safely and responsibly, they can only keep an eye on kids when they’re in school. The Monroe County Community School Corp. is asking for parents’ help in keeping youngsters safe when they leave school grounds.

“What worries us is that students don’t have protection outside our walls,” said Jason Taylor, MCCSC’s director of e-learning strategies.

The disturbing mentality here is that the government school system is the primary caretaker for these children and teens, and they are taking steps to ensure those children and teens are kept safe when they are away from school. It should be exactly the opposite – parents should be the primary caretaker, ceding care of their offspring to the school for seven hours a day so they can be educated.

There are good people within the government school system who do their best for students, but nothing can replace parents. The primary responsibility for a child’s physical needs, safety and, yes, their education resides with the parents – not the state. The concern should be going in the opposite direction – parents should be keeping their children safe at home, and asking about what the schools are doing when they are under the school’s authority.

The school should not be seeking parents’ help regarding online safety – the parents should be seeking help from the school. But as we have ceded more and more of our lives – and even our children’s lives – to the authority of the state, no one bats an eye at the thought of the government school system asking parents to help protect children and teens when they are under the parents’ care. It is absolutely absurd.

There is nothing inherently wrong with what MCCSC is doing here – efforts to keep children and teens safe online are admirable. The problem is that our society has degraded to the point where a statement like the one made by Mr. Taylor would not be met with shock, shame and humiliation.

What we need is for parents to take responsibility for their children and for churches and extended families to demand parents take responsibility. Government schools are a temporary and part-time caretaker at best, and government schools are not designed or equipped for child-rearing. That can only be done by strong, intact families.

A Fourteenth Amendment "right" to abortion?

I sometimes wonder if there is hidden text in the Constitution of these United States that is written in invisible ink, or if there were portions of the Constitution that have never been made available to anyone other than the judicial branch.

That would be a charitable interpretation of a recent decision declaring that restrictions on abortion in Arkansas “impermissibly infringes a woman’s Fourteenth Amendment right to elect to terminate a pregnancy before viability.” The uncharitable interpretation would be that the judge was abusing her authority to legislate from the bench.

So let’s examine the text of the Fourteenth Amendment. The relevant portion of the text establishes:

  • All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
  • No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
  • nor shall any State deprive any person of life, liberty, or property, without due process of law;
  • nor deny to any person within its jurisdiction the equal protection of the laws.

You will notice that nowhere in the four provisions quoted above is the “right” to have a child killed in the womb established. The “due process” clause has nothing to do with abortion; it merely requires that a process be followed before the state can act against someone. If anything, the equal protection clause would make legalized abortion unconstitutional by denying unborn persons equal protection under murder laws.

Politically and legally, the Arkansas ban was a risk because it went farther than the bans on abortion at twenty weeks that have been very controversial – though they should not have been controversial at all. I doubt that pro-life legislators in Arkansas had any real expectation that the ban would not be struck down, but that it would instead be another opportunity to legally chip away at Roe v. Wade.

But what it does do is allow us to re-examine the flawed legal argument used to throw out bans on abortion in all fifty states. Much like professional wrestling matches, the outcome of Roe v. Wade was predetermined. The justices twisted and shaped the text of the Constitution to make it fit the result they wanted, instead of allowing the text of the Constitution to determine the legality of state bans and restrictions on abortion. Furthermore, because of the court’s absurd obsession with “precedent,” the decision was allowed to stand when an intellectually honest reading of the Constitution would see it overturned.

The problem, ultimately, is that the Supreme Court has been packed with “justices” who are rebels against the rule of law. This is why every major decision these days is seen through a political lens instead of a legal lens, establishing this nation as a judicial oligarchy instead of a constitutional republic. That is a much bigger problem for our country in the long run than one terrible decision from forty-one years ago.

The McDonald’s "hot coffee" lawsuit

Note: I originally wrote this in September of 2009.

Back in 1992, a 79-year-old woman placed a cup of McDonald’s coffee in her lap, and was burned when she placed the cup in her lap and removed the lid to put cream and sugar in the coffee. Yes, we have all heard a million times about how someone should have more “common sense” than to put a cup of hot coffee between their legs after getting it from the drive through. The prevailing wisdom about this is that McDonald’s was sued for a customer’s lack of “common sense” and the lawsuit has been used as an example of the “need” for tort reform.

The issue that isn’t often discussed is whether the product itself was defective in a way that caused unreasonable danger to consumers. Specifically, the court found that McDonald’s coffee was significantly hotter than the industry standard, and was therefore more dangerous than coffee served elsewhere. Coffee is generally served at about 140 degrees, but McDonald’s served their coffee at 180 degrees. McDonald’s had received and ignored complaints about the temperature of their coffee, deciding instead to maintain this temperature. Because McDonald’s knew their coffee was dangerously hot, the plaintiff was entitled to some damages for the injuries she suffered from the burns.

The burns themselves were serious. She required skin grafts and was in recovery from her injuries for a long time. All of this was complicated by the fact that she was an elderly woman, which means her body is less able to heal from an injury like this than a 20-year-old’s body would. The bottom line here is that if a company makes a product that is dangerous beyond industry standards, that company should be held liable for damages in court. Just as few people would argue that the infamous Ford Pinto was not a defective product, coffee served at 40 degrees above industry standard should be viewed the same way.

For more information, see here and here.