All Your Tubes Are Belong to Googlizon

(Austrian) Economics, Business, Corporatism, Democracy, Nanny Statism, Technology, Vulgar Politics
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Googlizon with Chrome eye beam What you say!!!1

There has been a lot wailing and gnashing of teeth recently over a joint announcement by Google and Verizon of a legislative-framework proposal they’ve been working on.

Now, I’ve seen this variously referred to as a backroom deal or pact, a secret treaty, or a set of regulations Google and Verizon are imposing on the internet. The FCC is shamefully abdicating its responsibility to regulate the internet! Nevermind that the D.C. Circuit court determined recently in the Comcast case that the FCC has no such regulatory authority over broadband internet; hence, the calls to disastrously reclassify broadband internet access in order to place it under the same regulatory rules as regular telephone service. Some are even intimating that Google and Verizon are trying to “own” the internet. Net neutrality activists are up in arms about this proposal, viciously attacking Google for selling out and reversing its longstanding defense of net neutrality, and calling for people to stage a silly boycott of Google products and services. If you don’t join the herd, you get labeled a Google-Verizon apologist or it is insinuated that you are on their payroll (see comments on the CNET articles linked below, for example).

So what should libertarians make of all this?

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  1. Confused by this sentence and the title? The title is a mash-up of a few geeky internet memes. Know your meme, and also check out this Wikipedia article and this YouTube video. ↩

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What Kagan Should Have Said About Natural Rights

Legal System
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As noted in this Reason article, Supreme Court nominee Elena Kagan was questioned by a Senator about whether she believes in natural rights that are not provided in the Constitution. She repeatedly refused to grant this, instead insisting: “I don’t have a view of what are natural rights, independent of the Constitution. And my job as a Justice will be to enforce and defend the Constitution and the laws of the United States.”

No doubt she’s going to be taken to task for this by conservatives and libertarian centralists and judicial supremacists. But honestly, do you really want Kagan imposing her own personal view of morality on the country?

I think I agree with her saying her views on natural rights are not relevant. (As an aside: when asked about the Heller case, she responded: “… I accept Heller, which made clear that the Second Amendment conferred that right upon individuals, and not simply collectively.” Notice the word “accept” here: she implies she agrees without saying she agrees. Accepting it means you recognize it was decided and is currently law. It doesn’t mean you agree or that you wouldn’t overturn it.)

Anyway, I think a better answer would be something like this:

Senator, I, like most people, have my own personal views on morals and on what rights people do or should have. But my job as Justice on the Supreme Court is not to impose my personal views. It’s to interpret the Constitution. The Constitution itself, of course, declares and enumerates certain rights. But it is also clear–from the Ninth Amendment and other considerations–that the Framers believed in a certain set of rights retained by the people, including rights not enumerated in the Bill of Rights or elsewhere in the Constitution. So, as Professor Randy Barnett has argued, fidelity to the original understanding of the powers granted by the Constitution to the federal government–and of the rights that limit these powers–requires me, as Justice, to determine what this set of background natural rights comprises, whether it comports with my own personal political ethics or not. It is the natural rights as understood by the founding generation that matters, not as I or others conceive of them today.

Now, if you ask me what this set of the “Framers'” natural rights comprises, I cannot exhaustively say at present. It appears to be open-ended, and requires a great deal of historical research. In a given case, one would have to look into the historical evidence of the understanding of rights as of 1791 to determine if there is a background, unenumerated right that might be relevant to the case at hand. One approach to giving effect to this understanding of the unenumerated rights that the Ninth Amendment contemplates would be to adopt a “presumption of liberty” test as advocated by Professor Barnett, and/or a complementary approach based on the Tenth Amendment in which all federal legislation is scrutinized to determine whether it is specifically authorized in Article I, Section 8 of the Constitution. Under the latter approach, legislation that is not authorized is held unconstitutional, so that this enumerated-powers approach operates similarly to an unenumerated-rights approach, to nullify laws that are not supported by an enumerated power (or that contravene an unenumerated right, which is often the same thing, as the very purpose of the enumerated powers approach was to limited federal power so as to protect both enumerated and unenumerated rights).

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Mythbuster: Libertarianism and Unchosen Obligations

Libertarian Theory, Statism, The Basics
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It is a common mistake, made even by some libertarians and former libertarians, that libertarians reject the idea of unchosen obligations. Gene Callahan, apparently a former libertarian turned communitarian, is the latest to make this mistake. He says:

Obligation . . . is the crucial idea denied by libertarian political theory.1

Well, this is just patently absurd. Libertarians, of course, do not deny that individuals can have obligations to others, including non-humans.

Fortunately, Callahan goes on to clarify what he means:

We can have obligations that we did not agree to take upon ourselves.

But this is something that not all libertarians deny, as a wide and deep enough perusal of libertarian literature will demonstrate.

At the very least, libertarians recognize the unchosen obligation not to threaten or use initiatory physical force against other rational beings (i.e., to refrain from what we call aggression).

Libertarians generally make two important sets of distinctions regarding obligation: that between negative and positive obligations and that between enforceable and unenforceable obligations. One can go further and recognize that obligations can have different weightings relative to one another such that one obligation can override or delimit the legitimate means of fulfilling another.

Rights, at least as I define the term, are legitimately enforceable2 moral claims against another’s prior obligation not to threaten or use initiatory physical force. The Non-Aggression Principle (NAP)3 and corresponding rights4 are unchosen, enforceable negative obligations.

Can we have unchosen positive obligations? Libertarians need not deny this, and not all do. It should be easily recognized that unchosen, unenforceable positive obligations are strictly compatible with the NAP/rights.

What about unchosen, enforceable positive obligations? Provided they are compatible with the NAP/rights, if there are any that meet this description, then libertarians need not deny unchosen, enforceable positive obligations outright. I’ll leave it up to the reader’s imagination to come up with possible examples of unchosen, enforceable positive obligations that are compatible with the NAP/rights. If you take the challenge, bear in mind what I wrote about how one obligation can override or delimit the legitimate means of fulfilling another.

Suffice to say that it is a myth that libertarians (need to) deny unchosen, even positive, obligations. Callahan is attacking a straw man.

To criticize libertarians in general for denying unchosen, enforceable positive obligations, or just certain of them, would be more accurate. But to do so would be to take the position that the threat or use of initiatory physical force (i.e., aggression) is at least sometimes justified — that, for example, what is usually thought of commonsensically as theft or trespass or murder in everyday life, is not theft or trespass or murder in the “political” sphere, i.e., when the state or the “community” does it.5

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  1. It doesn’t help interpretation that Callahan started this sentence in the title of his post. ↩

  2. The presence of the term ‘legitimately’ here but not elsewhere in the post should not be taken to imply I am making a different claim here. I add it here in a definition for greater clarity. ↩

  3. It’s not an axiom. ↩

  4. Most fundamentally, the life, liberty, and property triad. Of the three, I think liberty is the most fundamental (at least at the individual level of analysis, from the perspective of moral theory; at the structural level of analysis, that of political and legal theory, the right to property may be the most fundamental; rights cannot be fully understood exclusively from either perspective, but rather must be conceived from a dialectical perspective that encompasses both as well as the cultural level (see Chris Sciabarra’s Total Freedom: Toward a Dialectical Libertarianism for more on these three levels of dialectical analysis, which I adapted to conceptualizing rights in chapter 3 of my dissertation) ) but it cannot be exercised or properly understood without the right to private property. ↩

  5. In chapters 6 and 7 of my dissertation, I deny that this is truly the political sphere. I conceive of genuine, immanent politics as discourse and deliberation between equals in joint pursuit of eudaimonia (flourishing, well-being). By ‘equals’ I mean ‘equality in authority’ as in Locke’s state of nature, though I do not conceive of ‘nature’ in Lockean, social-contract theory terms but rather in Aristotelian terms, i.e., of teleological completeness or perfection. In short, politics presupposes liberty. Hence, the term ‘vulgar politics’ (or vicarious politics) used as a category on this site as a synonym for statist “politics.” ↩

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Live and Let Die

(Austrian) Economics, Health Care, The Right, Vulgar Politics
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A schoolmate of mine, a Christian conservative, once insisted that the reason our public school teachers informed us about Eskimos leaving their aged on the ice to die was to prepare the way for doing something similar to our oldsters.

That seemed like quite large dose of paranoia, to me. After all, also in public school we learned that Aztecs cut the hearts out of those they sacrificed to their gods. The pyramid steps of Teotihuacan ran red with blood. We were told this, I thought, because it was true. Could there have been an organ harvesting agenda behind the history lesson?

Seemed unlikely.

Before asserting a major conspiracy, it strikes me as worth addressing, openly, all aspects of the problem that might give birth to such concerns. Was euthanasia of the elderly in the future? Probably only when I get old, I thought, darkly. But seriously, why would it be considered?

Because of the expense, of course.

But whose expense?

This is lightly touched on in Thomas Sowell’s recent column, “A ‘Duty to Die’?”

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The Division of Responsibility

Drug Policy, Health Care, The Basics
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It is odd, perhaps, that just as the federal (read: national) government moves to take primary responsibility for our medical lives, the several states are moving in the other direction. The right to self-medicate is, increasingly, being seen as important. First medical marijuana — a slap on the face to federal nannies — and now recreational use, sees advocacy and advance at the state level.

Any advance in taking full responsibility for medicine, on the part of citizens, individuals, goes against the grain of our collectivist age, and sparks some hope.

Of course, in a sense, it seems 35 years behind the time. …

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