John Stuart Mill's 1859 work On
Liberty forms the backbone of many philosophical arguments extended in the
name of liberalism, classical and modern. Mill's concern, and one shared
by the author, is preventing tyranny in an age of democracy, which is expressed
in his problematic:
There is, in fact, no recognized principle by which the propriety or
impropriety of government interference is customarily tested.
It is important to point out Mill’s assumptions
about language and politics. The issue
is the potential for democracy to decay into tyranny, as demonstrated for many
in the decline of the French Revolution into a Jacobin Reign of Terror followed
by the Dictatorship of Bonaparte.
Democracy certainly posed issues for any right-thinking Englishman of Mill’s
day.
But also interesting is Mill’s
solution to the problem of “excess” democracy: the recognition of an abstract
principle by which we can test whether government interference goes too
far. We can compare it with the old days
of public schools, where a girl could be sent home if her skirt did not
“measure up”. If we analogize our
“principle” to a ruler, then perhaps we have a pretty sound basis for curbing
excesses in democracy. This is, of
course, the principle problem with Mill’s search for a principle: principles have almost nothing in common with
rulers. Rulers are physical, and people
in general can agree on judgments of length.
There is generally little argument over whether a girl’s miniskirt is
actually longer or shorter than 6” inches, although some might feel that the
rule itself is stupid or too permissive.
Mill’s principle is the so-called “harm principle”,
which he states as follows:
The object of this essay is to assert one very simple
principle, as entitled to govern absolutely the dealings of society with the
individual in the way of compulsion and control. . . That principle is that the
sole end for which mankind are warranted, individually and collectively, in
interfering with the liberty of action of any of their number is self-protection. That
the only purpose for which power can be rightfully exercised over any member of
a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is
not a sufficient warrant.
The first problem with Mill’s formulation is that
he fails to clarify what he means by “mankind . . . individually and
collectively.” There are, of course, two
ways to view “mankind”: one is as an
aggregation of individuals, and the second is as a whole, composing many. I suspect that for Mill, who I understand was
a nominalist, “mankind” is just an aggregation of individuals. I point this out because, as I attempted to
demonstrate in my prior discussion of the ethics of vaccination, it is
insufficient to simply construe a collective as merely an aggregation of
individuals. If you take a group of 100
people, 50 of whom are vaccinated, as an aggregate, you have a relatively low
level of protection from a disease. On
the other hand, if you take that same 100 people, and concentrate all the
vaccinated people in one area, and the unvaccinated in another, you have a
community with a high level of immunity, and a community with a low level of
immunity. If you expose both the
segregated collective and the unsegregated collective to a disease, you will
likely have a less severe epidemic in the community segregated by vaccination
compliance: the segregated aggregate
will be able to protect itself better. On
the other hand, if you take a group of 100 people, 90 of whom are vaccinated,
you would get differing results in the segregated and unsegregated
communities. Because there is sufficient
numbers of vaccinated members to create real herd immunity in the unsegregated
aggregate, but enough unvaccinated members to create a serious epidemiological
vector in the segregated aggregate, the mixing of the vaccinated and
unvaccinated group will tend to produce a better health outcome than the
segregated order. The point is that
collective order, above and beyond (but in conjunction with) the individual
characteristics of the members, affects the ability of a community to protect
itself.
Mill is claiming to extol the
absolute standard for checking the power of the state, so it is important to
point out that the liberal/reductionist/nominalist analysis fails to even
consider that a community must be considered as ontologically distinct from its
members. Failure to do so subjects
members of a liberal community to a lower level of self-protection. Moreover, this conceptual failure distorts
consideration of moral duties of citizens, such as the need to submit to
conscription and procreate in the interest of the Nation, which are ultimately
rooted in the need for national defense.
Likewise, liberal arguments for the “right-to-work” also fail, in that
they undermine the collective rights of workers to manage themselves and
bargain collectively (e.g. effectively) in the economic process.
This leads to the second problem
with Mill’s principle, the notion that there can ever be an absolute distinction
between an individual harm and a collective harm. The traditional private “harm” is the person
“doing whatever they want in their bedroom”, and I suppose this view can be
advanced for married and consenting adults.
But, if we mix fornication and adultery into this heady mix, it
immediately becomes more complex, as we are now introducing favorable vectors
for the spread of infectious disease.
The higher the aggregate amount of random, unprotected sex in your
society, the higher the risk that your teenager will contract uterine cancer
from an STD, or pick up the latest antibiotic resistant strain of gonorrhea,
leaving him or her potentially infertile for life. Can society protect itself from venereal
diseases by regulating and even criminalizing certain forms of sex between
consenting adults? If we accept Mill’s
self-protection principle, it can.
Likewise, as a society, we currently share certain moral opinions on the
sexuality of children. [Given that these
views are not shared by other cultures, unless we root these moral values in
what the left calls “cultural racism”, or worse, in traditional Christian
values, it is unclear how these views are defensible in a non-ethnocentric
secularism.] But speaking today (in our
“pre-liberation” state), if we as a culture view sex with children, especially
commercial sex with children, as morally abhorrent, then this further impedes
the sexual liberation of our consenting adults.
For example, we find regimes of legal prostitution associated with the international
sex trafficking of children. Likewise,
the same commercial distribution channels for adult pornography open the gates
to the commercial distribution of child pornography, which can be cheaply mass
produced in corrupt or failed regimes throughout the world. Can society ban or restrict the commercial
sex industry in order to protect against the sexual exploitation of
children? If we buy Mill’s principle of
self-protection, and conjoin it with the last remaining sexual taboo of our modern
secularists, then we should be able to shut down the entire commercial sex
industry, so-called free speech and all.
Given increasing evidence of the
effects of second hand smoke, as well as genetic effects conveyed to children,
it seems under the principle of self-protection, and the protection of future children,
we can ban tobacco use. Likewise, given
our disability insurance system, why not require seat belts and motor cycle
helmets and bans on fast food and hang gliding?
Given that speech may be harmful to morals, or may undermine respect for
law, or might incite revolution or sedition, perhaps broader restrictions on
speech might be in order to promote self-protection?
The point of this remark is not
argue for or against specific policies, but to point out that it is very
difficult even in theory to conceive of a private harm that cannot be related
to a public one. In fact, these types of
connections are exactly the subjects of public health research, which
corroborates that everything is related,
and that it matters not only what a particular person does, but how—and to whom—they are related. We set out looking for a principle with the
characteristics of a ruler, something by which we could hold any specific
legislative proposal up against, and against which, everyone could agree that
it went too far. Instead, we end up with
a rhetorical trope, by means of which we can politically justify or attack any
legislative proposal that comes along.
I believe what is wrong with
Mill’s entire approach, starting with his abstract “mankind”, is his model of
language. Mankind has no general notion
of “harm”. What a harm is, or is not,
can only be ultimately defined by a sovereign power in the form of law. If the sovereign bans something, presumably
the sovereign bans it out of a desire to prevent harm to the populace. While a sub-national group or cultural group
may have a self-styled conception of “harm”, there is no universal notion of
what is harmful, as can be discerned by looking cross-culturally at customs in
the world. In some cultures, child
marriage is viewed as a beneficial and desirable custom. In other cultures, it is not. In some cultures, prostitution (inevitably including
child prostitution, of course) is viewed as, if not beneficial, at least
something society should look the other way at.
In America, we have something of a divide, with some viewing
prostitution as something that should be legalized (while pretending that the
problem of the sex trafficking of minors does not exist) while others oppose
it. Is prostitution a harm? How could that question be settled except
through a political process? I imagine
if there was a national political referendum on the question of legalizing
prostitution and it failed, I would interpret that as an indication that the
populace judged that the negative externalities of prostitution outweighed any
individual benefits. After all, what
abstract and neutral principle of harm can we hold our current laws up to,
whereby we could determine if they truly protect the collective from the
negative externalities of individual choices?
If we look closely at the matter, it is clear that our sub-national
political divisions in large measure reflect our collective differences over
people’s fundamental conceptions of what behaviors constitute a harm that
society needs to protect itself against.
To claim a behavior or a custom pollutes the country is a naked
political act.
Although Mill’s approach is not
ultimately coherent as a doctrine of political philosophy, it is connected
ideologically with certain political institutions in our contemporary society,
namely the ideology that surrounds our Federal Judicial Branch. In this view, Judges simply impartially apply
general principles based on universal principles, in much the way Mill
envisions the operation of his principle.
But as a practical matter, judges simply impose their own political
ideology on our system of laws in the name of abstract constitutional
rights. For example, one is for “free
speech” if one more or less agrees with the political judgments of Federal
Judges in their interpretation of rights of free speech. One is against “free speech” if one believes
that democratically elected political representatives can promulgate laws
regulating speech, even if those laws contradict the political preferences of
unelected judges. What the rhetoric of
“individual rights” in the current climate accomplishes is subversion of
democratic laws in favor of the preferences of unelected elite political
appointees. Given that our judges are
generally highly educated, wealthy, and secular, we should not be surprised
that our “constitutional rights” protect concentrations of wealth and the
values of secular humanism when those values contradict the preferences of the
demos and its representatives. Should we
be shocked that a court full of millionaires determined that corporations are
people with rights of free speech, or should we be shocked that people accept a
system in which a group of elites strike down democratically enacted legislation
intended to promote clean elections in the name of upholding meaningless
abstractions? After all, the
Constitution applies to all three branches of government. Why shouldn’t Congress be able to interpret
the Constitution just like the Judicial Branch, which presumably it does when
it enacts legislation? Further, if
Congress exceeds the bounds of its Constitutional authority in the eyes of the
President, don’t we trust our democratically elected President to veto it? And if, notwithstanding, some horrible and
draconian laws are passed that are contrary to the Will of the People, won’t
the voters figure it out and elect new leaders?
It is interesting that people
can recognize that abstract principles like “free speech” are, in and of
themselves, meaningless, and that a group of unelected lawyers are no more
qualified to define the “true” meaning of free speech than a group of
democratically elected legislators, but the same people run for the hills if
you suggest that the doctrine of Judicial Supremacy is a modern farce. The Emperor truly has no clothes. England has a Parliament, Parliament enacts
laws, and no judge in England would dare strike down an enacted law on the
claim that it violates the English Constitution. Although England has an Established State
Church, England is generally viewed as being a relatively free society and
stopped burning heretics in 1612. If one
looks to Europe, there is scant evidence of anything like the American Supreme
Court, striking down democratically enacted laws in the name of the
Constitution. To claim that the
rejection of Judicial Supremacy will result in some kind of state of anarchy or
tyranny is ridiculous. If we look at our
major victories as a People, whether it be the emancipation of slaves or passage
of the Civil Rights Act of 1964, or the Religious Freedom Restoration Act,
these victories have been accomplished through our Congress, not our
Courts. Actions such as the Japanese
Internment were rubber stamped by a liberal Supreme Court. On the other hand, we can thank the Supreme
Court for well-intentioned liberal ideas like busing in the 1970’s, to which
Richard Nixon probably owes his presidency, and George Wallace his national
profile. That is to say, if there is an
idea which is simultaneously politically divisive and practically unworkable,
but it sounds good to fashionable members of an exclusive Beltway tennis club,
odds are that the Supreme Court will get behind it. You can count on their liberal friends to extoll
it, and when it goes down in flames, to use it as another excuse to hate
America (for example, busing).
I would like to give a recent
example of what I am talking about.
First, a caveat: I generally
support the individual rights of citizens to keep and bear arms, and I believe
it is the obligation of Congress to ensure that those rights are protected in
whatever legislation Congress sees fit to pass.
I don’t have a problem with groups like the NRA lobbying Congress to
promote their cause. However, I do think
that a general ban against firearm ownership for people who have been
involuntarily committed to mental hospitals is a reasonable restriction on the
right to keep and bear arms. Moreover,
if people disagree with me, I respect their right to lobby Congress to expand
the rights of the (formerly) mentally ill to pack heat. Notwithstanding, the Sixth Circuit of the
United States Court of Appeals, on December 18, 2014, took it upon themselves
in the case of Tyler v. Hillsdale County Sheriff’s Department, to strike
down 18 U.S.C. section 922 (g)(4), which restricts people who are involuntarily
hospitalized for mental illness from owning guns. The holding was limited to Mr. Tyler’s facts,
but as the Court noted: “The Second Amendment’s individual right to bear arms.
. . ‘has boundaries [that] are defined by the Constitution. They are not defined by Congress.’” Of course, the actual language in the Bill of
Rights does not include any boundaries at all, just a general statement of
principle. What the holding really means
is that the Second Amendment has boundaries that will be defined by Federal
Judges, not the democratic representatives of the People who are standing for
election in the next term. In other
words, the doctrine of Judicial Supremacy gives Federal Courts the right to
craft, narrow, or repeal federal legislation without any democratic
accountability. I use this case as an
example, both because I do not want to appear as if I am only picking only on
liberal causes, but also because I do not view this problem as specifically
left or right. The People are the true
Constitution of the Republic, not the Judiciary. Given that the Congress has greater
accountability to the People than our Judiciary, unless we intend to amend the
Constitution to make Judges stand for election, then this monkey business has
no place in a democracy.
The problem with both Mill’s
approach, and its legitimation of authoritarian rule by judges, is that it
attempts to resolve a political problem through a philosophical approach that is
removed from history and culture. The
fact that the Government seeks to expand its role in a manner in which it has
never historically seen fit, for me, strikes me as a legitimate basis for a
political objection. Particularly if it
seeks to regulate in an area which is held by many to reflect received cultural
and historical values that may even precede the Founding. The fact that the Government has been
regulating firearms for decades in a particular manner, and then suddenly a
federal judge discovers a new way of reading the Constitution--that does not
sound like a legitimate basis for striking down a law. After all, the same Judge might find a new
right in the Constitution after lunch legalizing child pornography or permitting
the sterilization of the disabled, especially if that manner of thinking
becomes the new “in” trend at the tennis club.
This is the sad truth of Judicial Supremacy: the bounds of our Constitution
are destined to ebb and flow with whatever intellectual fad is trending with the
Beltway elites. Is that anyway to run a
country? In the Lochner era, we
had the inviolable freedom of contract, today we have abortion rights as
divined from our Constitution through occult powers of reading, and tomorrow,
for all we know, our Constitution might be interpreted by 5 members of Opus
Dei, with no democratic accountability in any case. How are we better off than if we had a system
in which Congress passed laws, and if the People objected to the laws, they
could vote for a new Congress?
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