Republics that protect individual liberty are characterized by the defensive qualities of law. These are summed up in what is known as the nonaggression axiom: one is free to do whatever one wishes, insofar as he/she does not infringe on the right of another to do the same. Individuals then, possess all rights consistent with such axiom, known collectively as "negative liberty".
The problem with Democracies, like what our Republic has become, is that this principle is misunderstood - some rights are marginalized while others are trumped up to be of superior importance (are you beginning to understand why many at the Constitutional convention opposed a bill of rights? To enumerate 10 or even 100 rights puts the government at liberty to violate all others that don't enjoy the protection of enumeration). When this happens, and rights begin to overlap and conflict, situations arise that force parties to become offensive, so as to remedy failures of law and policy where they would rather simply be protected by the law, playing defense alone. As it turns out, in Democracies like America, you can't just play defense, you have to get offensive. The current situation in California with Proposition 8 and its proponents is a great example.
The problem with Democracies, like what our Republic has become, is that this principle is misunderstood - some rights are marginalized while others are trumped up to be of superior importance (are you beginning to understand why many at the Constitutional convention opposed a bill of rights? To enumerate 10 or even 100 rights puts the government at liberty to violate all others that don't enjoy the protection of enumeration). When this happens, and rights begin to overlap and conflict, situations arise that force parties to become offensive, so as to remedy failures of law and policy where they would rather simply be protected by the law, playing defense alone. As it turns out, in Democracies like America, you can't just play defense, you have to get offensive. The current situation in California with Proposition 8 and its proponents is a great example.
On the surface, the legal principles of Proposition 8 seem cut and dry to any Libertarian-thinking person acquainted with the tradition of liberty and natural law, whether they are personally in favor of Gay Marriage or not: As a rule, the government is not at liberty to deny rights to one group that are afforded another. This is not only consistent with the equal protection clause, but with natural rights. As a matter of equality, the only equality that justice and law demand is equality before the law. Seen in a vacuum, Prop 8 seems to infringe on rights, and many feel that if the situation was thus fully expressed, the Churches and other proponents would have no interest in getting involved in the affairs of others. But in America today, where the non-aggression axiom is barely understood, the political realm is where disputes are settled, with parties seeking to legislate to assure a favorable outcome. In America today, you're either on offense or you're getting scored-on. Many laws relating to and emanating from Proposition 8 already infringe on legitimate rights, and passing Prop 8 is seen as necessary to limit these violations. Here we see that government legislation that is not consistent with the non-aggression axiom creates civil strife and exacerbates the otherwise less harmful effects of natural faction.
To be more specific, current laws and their interpretations could, coupled with the passage of Prop 8, require groups such as Catholic Charities and LDS Adoption Services to place children with gay couples. Once again, weather you think this is bad or not is irrelevant - it violates the aforementioned groups' "freedom of association", their ability to associate, do business with and generally deal only with those they choose (this is not a right enumerated in the Constitution, but is consistent with natural law and important all the same), not to mention freedom of conscience and religion.
As another example, Californians are taxed to pay for public education, regardless of weather their children go to public school or not. This violates their right to determine (1) where/how their kids are taught, and (2) where their money is spent. Their right to teach their kids as they see fit is a concern, especially if the state defines marriage simply as a union between two people. Under other circumstances, parents with more traditional family views would simply send their children to a school that teaches societal mores to which they subscribe. Again we have a government institution (public schools) causing social conflict.
Other similar situations concern the proponents of 8, people who under other circumstances would be happy to live and let live. Sadly, the overly-democratic nature of our society allows the many to control the few, and vice versa. From a game theory perspective, no party is willing to simply trust law to protect their natural rights, and instead must proactively seek to infringe the rights of others, if for no other reason to protect or to reclaim rights relinquished at the hands of previous illegitimate policy.
In business and industry, this behavior is called "rent-seeking". Microsoft was content to run its business from its Redmond, Washington office for years, confident that its superior products and the rule of law would be sufficient to protect its interests. But it was only a matter of time before Gates & Company learned that you can't stay in the game long if you only play defense. Today, Microsoft and virtually all major corporations have offices and lobbying arms in Washington.
Over-applied democracy has failed to let Americans play defense behind the law. You need a good offense if you want to play defense today. This tit-for-tat and the accompanying social conflict will go on as long as illegitimate law puts people and groups in positions where they must violate the rights of others through legislation to recuperate or protect their own rights. This, however will continue unabated if law continues to be seen and used as a tool of social achievement rather than organized justice in protecting rights.
1 comment:
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