Hello again, quick note about the
CNN debate that happened tonight, I thought Ron Paul did a pretty good job
overall in terms of substance but I wish he was a better debater in terms a
rhetoric. He only got one really good line off, the one about how the moral and
legal arguments against foreign interventionism do not work with Neocons so
let’s try to economic one. Other than that the debate was pretty chaotic and
not a lot of new points were made. Based
strictly on performance, I thought it was a wash for everyone. Anyway, principle
two is:
Each unit of government may only
act if and only if A) it is constitutionally authorized to act in that regard
and B) it is empirically demonstrated that the unit of government’s action is
as instrumentally effective as possible at securing a legitimate state end.
Policy consequences: The War of
Drugs needs to end, especially at the federal level, the current power and
privilege of the president needs to be curtailed, especially in regards to
starting wars, assassinations and budgetary matters and much of the current
regulatory oversight at all levels of government needs to be done away with.
Governing consequences: The
second question asked about any law being proposed is “Is the government
authorized to do this and will it be effective?” If the answer is no, then the
state may not do it. Implicit in B) is the notion that that all governmental
activity needs to be as efficient as possible.
There are two additional governing
consequences that come out of this principle. They are:
i) Chief executive officers (president, governors, mayors
etc.) are largely discharged with only the duty of enforcing the law. As such
the chief executive should only be an effective day-to-day administrator of the
law, and they cannot go beyond that to any substantial degree without
legislative assent. For those who are
familiar with this terminology, I favor the “chief clerk” view of executive
power and privilege.
ii) An independent, non-partisan, and amajoritarian judicial
branch is needed to restrain the other two branches from exceeding their
allotted authority. As such, judicial
review should be respected and one must think very carefully before making
charges of judicial activism. I’m not denying that judicial activism exists,
I’m saying the knee-jerk reaction by conservatives (and sometimes progressives,
as was the case in Citizen United) to
judicial decisions they don’t like can, and does, have an unwarranted chilling
effect on the courts.
Explanation:
Forgive me a moment as I need to
explain some political philosophy. I suggest if this point interests you, you
check out Isaiah Berlin’s seminal essay The
Two Concepts of Liberty. Ok, the
beginning of the ideology (liberalism) that underwrites much of our
constitutional system was Thomas Hobbes’ Leviathan. John Locke in his The Second Treatise on
Government refined, augmented and changed Hobbes’ ideas to largely the form
that many (but not all) of the Founding Fathers assented too (but not
exclusively so.) Hobbes and Locke had
many differences but it is the point of similarity that is at issue here. Both Hobbes and Locke defined liberty in the
negative sense. That is, as long as a
person was not actively being prevented by someone (or some natural barrier)
from doing X, they were free to do X.
Negative liberty then is freedom from
interference. (Freedom is non-interference). Negative liberty is often called the liberty
of the moderns. Meanwhile, the two main
rivals for Hobbes/Locke on what liberty meant were Immanuel Kant and
Jean-Jacque Rousseau. There are
differences between them, and neither one defined liberty completely severed
from the negative notion, but nonetheless each defined liberty as the enactment
of self-mastery (or self-rule). A person was free as long as their action
accorded to their higher rational interests.
Positive liberty is the freedom to
self-rule. (A person is free when they control their baser selves). Positive
liberty is often called the liberty of the ancients.
I
bring this up for a couple of reasons.
First, these two concepts of liberty are often confused, conflated and
brought up together in popular discourse as a muddled package. (This is what is
currently driving the “is healthcare a right?” debate) To fully engage with arguments it is
paramount that this distinction be kept in mind. Second, with a single
exception (the right to vote, as I will discuss in detail later), I believe
that the term liberty is best understood as only meaning the negative sense. I
find the positive sense quite dangerous actually. This is important for the
principle because it correctly frames the relationship between the state,
individuals and rights. Rights are
negative; I have them because I have an overarching protection from interference
with my goals and plans. In other words, the Constitution doesn’t grant me any
rights, the Constitution constrains the
authority of the state to interfere with me.
I don’t have the right to free speech; the government doesn’t have
the authority to curtail my speech. (In practice this amounts to the same
thing, but in theory it’s very different)
As a consequence, the framing of all political question defaults to
questions about what a state can do, not what rights that individuals have.
Let
me briefly explain the efficiency point, as I think that is mostly
self-evident. Given that the chief end
of government is to secure public order and punishing private actors who violate
the side constraints of another individual (i.e. interfering with someone) the
persecution of crime, police, and the like clearly fit in the purview of state
action. However, this doesn’t tell me anything
about which one of however many law and order policies to prefer, it’s at that
point that outcomes, effectiveness, cost and etc considerations can come to
forefront.
One point that needs to be
stressed:
I’m calling this the restrained
government principle, as opposed to the limited government principle. I’m doing
so, and this may simply be an issue of semantics, because in my mind you can
have a very robust government that is still limited. That is, a state that is
granted a lot of authority by its constitution but never violates that
authority granted would be limited.
Whereas restrained government in my mind, frames the point of keeping
government in check and constraining the state to legitimate purposes.
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