Contra-Populism: Part III
Do not let the hollow promises of populist ideology fool you! Populism of the right or left is antithetical to the individual liberty cherished in Classical Liberalism and Libertarian philosophy. For one, populism frames policy in collectivistic terms rather than individualism. Populism tends to advocate for policies that support Positive rights (a right to an economic good, e.g. Social Security) over Negative rights to protect the individual from interference with exercising their rights (free speech). Much of what populists advocate for is the retribution of wealth and market privilege instead of individual freedom. Policies such as Single-Payer Healthcare and tariffs impose costs on all voters. This is because populism holds the interests of the group; without unanimous consent. Sure, by choosing to live within a certain jurisdiction you may be tacitly consenting to the laws. However, the rise in populism has spurred an increased demand for state intervention to provide more economic privileges. The problem is that the preferences of the “average voter” cannot be known, as every voter has their own opinions and preferences (p.20). Ordinary voters are not unitary actor, but many individuals with different political proclivities; populism assumes too much about what is best for all of society (p.16).
It is not just the threat of majoritarian tyranny that makes populism perilous to liberty, but populism also requires conferring more authority to the state. This may seem ironic with all the “drain the swamp” rhetoric of the Trump presidency. Even in applying rudimentary logic, more collectivism requires a more centralized authority to be enforced and implemented. The unified will of the people is not recognizable; it takes the personified form of a “strongman” leader embodying the general will (p.20). They generally shift towards autocratic regimes (p.20) since implementing and justifying factually flawed and illiberal policies necessitates large sums of political authority. Beyond the threats of authoritarianism, the elites still benefit from waves of populism. The elites can hide behind the fluid nature of populism and allow majoritarian sentiment to shape crony policies that benefit narrow interests (p.171-172). For example, the supervillain of retail Walmart’s (not the author’s opinion, but a commonly held belief)CEO publicly stated the minimum wage was too low. Raising the minimum wage has been a longstanding talking point of the populist left. In true Bootlegger and Baptist (1983) fashion, Walmart stands to gain. Why? Because a higher minimum wage means more automation and fewer salaries. The bonus is that not only will the firm gain monetary from saving money while maintaining the veneer of having concern for those in the lower income brackets.
Suicide as a Natural Right- Part II
The Lockean conception of shelf-ownership does not work if we cannot alienate self-hood. In the context of involuntary slavery, our absolute right (p.10) to self-possession is relinquished through coercive force [1]. The notion of natural rights almost always implies that the individual owns. For instance, the right of free speech codified under the First Amendment of the Constitution implies self-ownership. Individuals embroiled in political debate must utilize the very bodies they own and utilize scarce resources (p.2)to engage in the passionate exchange[2]. There is one glaring flaw that most ethical theorists get dead wrong about natural rights. Our negative rights that are part-and-parcel with our personhood may be self-evident, but they are certainly not inalienable. The American Declaration of Independence echoes this sentiment and forever cements it in the public consciousness:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.
The claim that these rights are unalienable does not connote ownership of these rights in any meaningful sense. By the inseparable nature of self-ownership and natural rights, we do not truly have unfettered possession of ourselves. The ability to alienate something is that can only be the consequence of ownership. True ownership implies that an individual can transfer, maintain, sell, deface, lease, destroy, etc. the article in question as they see fit. One of the strongest arguments for this radical interpretation of ownership comes from economist and Libertarian theorist Walter Block. Dr. Block writing “..No law should be enacted prohibiting or even limiting in any way people’s rights to alienate those things they own. This is “full monte” alienability, or commodification…” (p. 6) [3]. Block surmises that an unlimited condition of ownership naturally extends to the person, meaning that if an individual chooses to sell themselves into slavery this is legitimate. Unlike the trans-Atlantic slave trade, the individual being sold is consenting to the arrangement [4].
However, most, and moral theorists would suggest that natural rights, especially selfhood cannot be alienated or dispensed with. As our mind and body are typically inseparable; neither can be reallocated nor disposed of. This supposition suffers from an unfortunate fallacy because a person can voluntarily absolve their will and sentience. In the most extreme case, a person could give themselves a lobotomy effectively alienating their will and severing their mind from their corporal body (p.8) [5].
There are less extreme examples of people abstractly selling off natural rights in exchange for material gain. One only needs to look to employment contracts to see a ubiquitous example of this selective selling of rights. It is common for employers to include social media policies as a condition of employment. Effectively acting as a voluntarily acknowledged limit on free expression; a right codified under the First Amendment. Regardless of whether this restriction is a temporary sale of this right or permanent alienation it is a legitimate exchange. From the standpoint of Rothbardian contract law, this arrangement fulfills the criteria for an enforceable contract. Under this theory of contract law, the property must be exchanged for the contract to be binding, any other agreement is a mere promise (p.133-135). At the core of an employment contract or conditions of employment, the property is being exchanged. The employer is transferring compensation (monetary and additional benefits) to the employee. This exchange is contingent upon the employee following the company’s internal policies. Indirectly operating as a form of selling or “renting” natural rights in exchange for employment.
Selling property is merely one means of alienating property. Other more drastic measures can achieve this same outcome. The concept that an individual can condemn their property, mirroring the same privilege current held by various tiers of the U.S. government. The only difference is that when the state does it, they do so without the consent of the owner. Even when eminent domain is practiced within the parameters of the takings clause, however, the property owner generally does not have the right to refuse to surrender their property. Regardless of whether they are justly compensated for the relinquishment of their business, land, or home this arrangement is still inherently coercive. In stark contrast, if a property owner dedicates to transfer or otherwise condemn the land they own, this is legitimate. Effectively, suicide is an example of a person opting to condemn themselves. A person choosing to forever dispose of themselves permanently disables their ability to contribute to society; mimicking how governing institutions can decree that land or a build is no longer fit for occupation or commercial use. The state typically initiates such a directive in the context of habitation or use of the property would pose a “safety hazard”. However, a person contemplating “condemning” themselves does not need to fabricate such vague excuses. If they truly own their own body and mind, they do not have to provide any justification for performing such action. Unlike eminent domain, the individual can consent to the decision they have made.
Most people might argue that allowing others to commit suicide with no mandated intervention would squander human lives [6]. Further supporting this statement by repeating tired platitudes about how it is a permanent solution to a temporary problem. No doubt, suicide does come with a wide array of societal costs. The individual can never be replaced nor can their human capital because no two people have the same experiences. If we set aside the externalities of the act, there’s a deeper conflict at play. There’s a long tradition of property owners having the right to destroy what they own. The right to destroy one’s property has its roots in the doctrines of Roman and English Common law (p.8). Moreover, there is a long-standing tradition that arguably supersedes the concerns of modern environmentalists or other public interest initiatives. The concern for wasting resources was even voiced by John Locke back in the seventeenth century:
The same law of nature, which does by this means give us property, does also bound that property. God has given us all things richly, 1 Tim. vi. 12. is the voice of reason confirmed by inspiration. But how far has he given it to us? To enjoy. As much as anyone can make use of to any advantage of life before it spoils, so much he may by his Tabour fix a property in whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. (p.12).
While Locke provides us with prudent advice regarding resource management, it is nevertheless, a suggestion. A just legal system would defend the property owners’ right to dispose of their property how they choose, even if it is considered wasteful. A legal system that has penalties or restrictions impeding the right to destroy one’s property, provides a perverted form of justice. Much like anything else a person owns, they should be able to “destroy” themselves. In a sense, we legally permit other more protracted forms of incremental suicide. For instance, currently, no laws are prohibiting the sale or consumption of sugar-saturated and chemical ladened soft drinks. Although cigarettes are highly taxed and regulated, we still live in a society where smoking is still legally tolerated. Both soda and cigarettes slowly kill the person ingesting either product; despite this fact, these products should remain legal. Following this same logic, if the person should be able to choose what they put into their body, they can choose to also ultimately dispose of their body.
Footnotes
[1]. The account of Slavery in Locke’s Second Treatise of Government (1690).
[2]. An allusion to Hans-Hermann Hoppe’s theory of Argumentation Ethics.
[3]. In reference to Block’s postulations related to the possibility of voluntary Slavery.
[4]. How slavery was practiced in the United States was a reprehensible institution. The trans-Atlantic slave trade was incompatible with a property rights justification for self-ownership.
[5]. An example Walter Block borrowed from legal theorist Stephan Kinsella.
[6]. The idea of wasting human life can be applied in an economic sense. The decreasing fertility rates in the Western world present challenges to the labor force and the tax pool. Especially, after all the Baby-boomers die.
Bootleggers & Baptists: XXIII- National Eviction Freeze
Most regulations, laws, and government programs are not neutral in their impact on and the economy and society. Frequently picking winners and losers through which subset of the constituency benefits and the other group of voters and taxpayers that the policy discriminates against. The idiom “regulation cuts both ways” encapsulates the notion that the consequences of regulation cannot be contained to the gains of the beneficiaries. Often the beneficiaries enjoy these perks at the expense of others. Because it is nearly impossible to secure complete unanimity among all citizens with the boundaries of a state never mind a nation; someone invariable will bear the external costs of the policy. Whether it be through higher taxes, revoked privileges, and rights, barriers to entry, or even legal sanctions; someone is bound to get the short end of the proverbial stick.
The advent of the pandemic has spurred a plethora of regulations, ordinances, laws, and profligate monetary policy that operates to stifle the spread of the virus at the expense of other Americans. The actual effectiveness of these measures is debatable. Some of the oppressive examples of government fiat are flat-out spurious in the purported claims of impeding the transmission of COVID-19. One policy that has epitomized the welding of such questionable measures as means of maintaining public health has been the eviction moratorium. After being extended several times, last week U.S. district court judge Dabney L. Friedrich expressed that the eviction freeze was an overextension of the CDC’s authority. On many accounts, Judge Friedrich was justified in her assessment of the eviction ban. However, the polarizing nature of the policy inevitably makes a policy prescription in either direction discriminatory. Incentivizing both camps to form effective coalitions to combat their political opposition. Fostering ideal conditions for Bootleggers and Baptist’s coalition dynamics, like any other arrangement of political exchange, there needs to be an agent to provide the moral argument for the political activity. Naturally, lurking right around the corner is the beneficiary of that very same policy.
The Bootleggers and Baptists Favoring Overturning the Moratorium:
Coalition A:
Baptists: Judge Dabney L. Friedrich and Proponents of Constitutional Conservatism.
Judge Friedrich and others voice concerns of the constitutionality of the orders direct by the CDC are quintessential Baptists. Why? These individuals are arguing from the normative perspective of maintaining justice. The very taproot of justice begins with making sure that the rules are fair and are being enforced properly. If the formal rules of our society are petty or capricious there is little hope for the nation being just. Hence, why highly esteemed critics such as Judge Dabney are crucial in assessing whether or not government agencies are stepping outside the boundaries of their legal limitations. Operating as a safeguard against overreach and other institutional abuses that need to be reigned in to avoid various conflicts of interest.
In her 20-page refutation of the moratorium order, Friedrich details how the specific actions of the CDC veer outside the permissibly established through legal restraint. The purposed extension of the eviction freeze through June would not justifiable as congress no longer supported this measure. Failing both prongs of the “Chevron Deference” test established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984). Friedrich even expounds upon how the purported powers that congress initially conferred to the CDC fall outside of the scope of the Health and Service Act. Through expressing these concerns for a just administration of law, Judge Friedrich is a Baptist.
Bootleggers: Landlords.
It would be a mistake to interpret assigning the role of “Bootleggers” to the landlords as an overt value judgment. Objectively, the landlords are the ones who stand to benefit the most from lifting the moratorium. There is nothing wrong with that from a moral perspective. Much like most economic agents, the landlords make an honest living by maintaining house units. Functioning as an odd hybrid between active and passive income. It was estimated that back in December 2020, that renters who were behind on their payments collectively owed $7.2 billion in rent. Without any further analysis, it is quite clear that is a large sum of money. The moratorium on evictions has been economically detrimental to this sector of the economy. Even engendering personal ruin for some of these individuals. Any individual in their position would be pleading to end the eviction moratorium. Otherwise, you are stuck having to provide maintenance and utilities for apartments where the resort is to pulling money out of your savings to continue providing housing services.
The Bootleggers and Baptists Favoring the Moratorium:
Coalition A:
Baptists: The Biden Administration
On the opposite side of the fence, the Biden Administration is working to appeal Judge Friedrich’s ruling. While there is a potential of a dual-role actor dynamic lurking in the background, for simplicity’s sake we will assume the prima facie perception of this being a measure implement for the “public good”. The Biden Administration has defended maintaining the moratoriums on the normative basis of emphasizing the struggle of workers who have lost their jobs due to COVID-19. The Whitehouse website has published statements detailing the statistics and numbers regarding renters impacted by the pandemic. Whether or not this concern for the economically disadvantaged is opportunistic or not is difficult to ascertain. However, regardless of the intentions, Biden’s Whitehouse assumes the role of the white knight, fighting on the behalf of the downtrodden. Please keep in mind, this assessment is based upon taking the statements made on the behalf of the president at face value. Since all of the arguments have a moral dimension to them, we can only assign Biden and his Administration the role of Baptists. Acting as Judge Friedrich’s philosophical foil, defending positive rights while the Judge is actively defending negative rights.
Bootleggers: The Renters.
Once again, assigning the role of “Bootleggers” to the renters impacted by the pandemic is not a value judgment. Much like the landlords, they are merely responding rationally to policy through attempting to preserve their self-interest. Naturally, much how no one would want to give their main source of revenue, no one would want to voluntarily surrender their shelter even if they lacked the means to pay their rent or mortgage. However, the renters are “Bootleggers” in the narrow definition of the phrase, because they do stand to benefit from extending the duration of the eviction freeze.
Pueblo Lands
Just a fun fact regarding the Pueblo tribe that originally resided in the U.S. Southwest. This tidbit of information is specific to the Pueblos domiciled in New Mexico. The “… lands were acquired under fee under Spanish rule…”. Once the territory of New Mexico was annexed by the United States under the Treaty of Guadalupe Hidalgo (1848) in the aftermath of the Mexican War (p.272). This transferred right to the lands to the tribe versus the United States government holding the legal title.
Unfortunately, the technical aspects of the land own by New Mexican Pueblos are now minimal. As the tribe is presently in a trust relationship with the U.S. Government. See United States V. Sandoval (1913) (p.273). The tribe cannot “alienate their lands without the consent of the United States per United States V. Candelaria (1926) (p.273). Water rights for Pueblo lands are as applied by Winters Rights and are not different ( New Mexico V. Aamodt) from those of any other tribe (p.273).
Side Note:
I may not be a trained lawyer. However, I am a Classic Liberal. That means I hold individual rights and property ownership in high regard. After all, I am following in the tradition of John Locke, and so on. If we strip away all the social justice rhetoric surrounding the government’s treatment of the tribes, there are a lot of violations of natural property rights. This opinion may not be based on past case precedence, but rather on unified philosophical principles. By the Treaty of Guadalupe, the tribe has legally transferred the right to their lands. While subsequent legislation may subordinate the strength of this previous agreement, did the tribe ever consent to the trust relationship with the United State’s government? From a purely a priori combined with some of the rhetoric surrounding past and present tribal/U.S. relations it would be fair to surmise no.
The legitimacy of the present guardianship dynamic between the New Mexican Pueblo tribe and the United States is suspect at best. Effectively, this arrangement transfers Pueblo lands to the federal government for relocation to the tribe. Many who are not as privy to the philosophical implication of property rights may find this alteration to landownership to be inconsequential or even a mere technicality. Taking such a superficial stance on this issue undermines property rights. Rightfully attained property should not be transferred to another party including the government without consent. This issue somewhat mirrors the overextension of civil asset forfeiture in cases of narcotic sales or instances of eminent domain. There may be laws on the books that provided legal justification for such actions. However, it is morally or philosophically justifiable? Could these laws be legitimate due to the fact they are unjust? Depending on your disposition towards property rights the answer can be a resounding no. Through this tacit acceptance of law equating moral correctness, we accept many unjust laws as being legitimate. This in turn transforms the Bureau of Indian Affairs into an institution that is more of an imposition than a facilitator of tribal rights. Inverting property rights, thereby shifting it from a negative right to a positive right. The BIA had the potential to operate in a manner that served to legitimately uphold tribal property rights. Like more bureaucratic departments within the government, it managed to make a bad situation worse. Instead of taking on the role of a property rights arbitrator between Indians and non-Indians, it became a property rights dispensary. Creating a perverse dynamic in which there is an inference that the Pueblos no longer own the land. When it was historically transferred to them by treaty. If this is true then the government has no business managing the land at all. Unless their property rights are being infringed upon. For example, non-Indians encroaching upon their water rights. There is a profound categorical confusion in attempting to protect property rights by first violating them. Making it appear as if it more of the pretext for circumventing Native property rights than defending them.
Inverted logic 