Right to Privacy?

In the 1973 decision Roe v. Wade, the Supreme Court invoked the concept of a “right to privacy” in order to rule that the practice of abortion was indeed constitutional. One may be forgiven for wondering from where this concept was derived. The word privacy never appears in the U.S. Constitution, the Bill of Rights or any subsequent amendment.

Defenders of the “right to privacy” claim that it is implied in the 4th Amendment, the 5th Amendment, the 9th Amendment, and the 14th Amendment. None of these contain any implication that can be said to support any constitutionality of abortion.

The “relevant” section of the 5th Amendment deals with “due process”. It states that “no person shall be…deprived of life, liberty or property without due process of law.” “Due process” has been since used to denote the preservation of the rights that we, citizens of the British colonies in America, had under British law. Under strict construction interpretation, the fact is, that concept is never stated explicitly. If it were, one would have to assume that a right to privacy defined in such a way that is relevant to abortion existed. That is a questionable assumption, since abortion – at least as we understand it – did not exist in 18th century England.

Contextually and literally, the term “due process” means that advance notice of what the law requires must be given for the enforcement of that law to be in fact legal. It also follows that advance notice is necessary to make legal the subsequent deprivation of life, liberty or property that comes as a consequential punishment for the breaking of the law. If indeed unborn babies are alive (something I am not debating here), then for them to be deprived of life legally, they must be given advance notice of the law that they are breaking, the subsequent penalty for which is deprivation of life. If the 5th Amendment does indeed apply to abortion, this, in my view, is how.

The 9th Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment is invoked in order to argue that the fact that a right is not enumerated does not mean that it does not exist. Therefore, just because a right to privacy has never been articulated, it does not mean there is not one. But the weakness of this argument is this: saying that a right does not necessarily “not exist” is not the same as saying it does exist. It simply does not preclude the possibility of its existence.

The 14th Amendment is said to be relevant in two ways. The first is the use of the phrase “equal protection”. This is the idea that the government is not allowed to discriminate in the application of the law. The problem is that discrimination does legally occur in the law. In fact, that is what the law is: discrimination on the basis of behavior or choices. We discriminate in terms of whether certain actions should be legally allowed or not. The relevant discrimination to the 14th Amendment is discriminating between people. All people are to be protected equally under the law. Equal protection applies to people, not to actions.

The second relevant portion of the 14th Amendment is that it applies the Bill of Rights to the states. Rights that are not to be violated by the federal government are now not to be violated by the states either, according to the interpretation of the 14th Amendment. This is insufficient for any argument depriving jurisdiction from the states to decide for themselves whether or not to legalize abortion (the way it was handled prior to Roe v. Wade), as it requires that a right to privacy relevant to abortion be previously protected from infringement by the federal government. Otherwise that right does not exist and thus cannot be extended to include the states.

In fact, if the 5th Amendment can be construed to protect against the legalization of abortion (as mentioned in the fourth paragraph), it would then be extended properly by the 14th Amendment to an interpretation that even the states cannot legalize abortion.

The last (and perhaps, best) argument that there is a right to privacy found in the Bill of Rights is in the 4th Amendment. It begins with “the right of the people to be secure in their persons, houses, papers, and effects…” Is this privacy in the relevant sense? It continues “…against unreasonable search and seizure…” and “…but upon probable cause…” Perhaps I am missing something, but this is talking about a warrantless search. What that has to do with whether or not a woman decides to get an abortion, I cannot divine.

Clearly it is illegal for the law to invade your privacy to establish whether or not you committed a crime unless it can first provide proof of probable cause, but there is no way to construe this to mean that because something is done in private, is therefore legal. No one would approve of that. Just because “the home is the castle” (Lawrence et al. v. Texas) it does not mean that killing someone or even pick-pocketing someone is legal because it is done in the privacy of your home. If abortion is indeed taking a life (again, something I am not arguing here), then it is murder whether or not it is done “privately”.

Since abortion is not even done in the home generally speaking and is instead performed in abortion clinics, the real relevance according to the Supreme Court is that abortion is a private choice. This, of course, has nothing to do with the 5th Amendment. Would that liberals fought for the privacy of other choices!

Besides that, the privacy of a choice does not determine its legality. I highly doubt that someone decides to commit murder in public. It is a private choice. The law, again, discriminates between actions, between whether or not we allow certain actions. The law determines whether or not something can be chosen privately, not the other way around.

Any “right to privacy” one can elicit is implied in the Constitution or its amendments cannot be applied to the legality of abortion.

Analysis of the GOP Pledge to America

The GOP Pledge to America is subtitled: “a New Governing Agenda built on The Priorities of Our Nation, the Principles We Stand For, & America’s Founding Values”. Right off the bat, it quotes the Declaration of Independence concerning some of those founding values: “the unalienable rights to life, liberty, and the pursuit of happiness.” Regarding America as not just a country, but an idea, they proceed to assert that “like free peoples of the past, our citizens refuse to accommodate a government that believes it can replace the will of the people with its own.”
The priorities of our nation, they imply, are more truly reflected in the views they express in the pledge than those of the current administration. They recognize the well-known issues the country faces – joblessness, debt, etc. – and proceed to make somewhat generic pledges that may sound like platitudes to some. But we are still, of course, in the introduction.
One of the most intriguing sentences is this: “We pledge to honor families, traditional marriage, life, and the private and faith-based organizations that form the core of our American values.” Conventional wisdom has it that these issues are on the back-burner this election cycle, and that it would be more profitable for the GOP to attract citizens disgusted with the Obama administrations’ economic policies, like the Tea Party, with promises of fiscal responsibility, while leaving such social issues untouched, as some predict that they could be divisive.
Cynically, some may speak of the dominance of the “religious right” in influencing the GOP and thus their pledge. Apparently the GOP is less concerned (at least in this case) with repelling some Tea Party members than leaving out some major concerns of conservative Christians. They go on to reiterate their commitment to this cause in the forward, promising to “permanently end taxpayer funding of abortion and codify the Hyde Amendment.”
The rest of the pledge is divided into categories: the economy, government spending, health care, restoring trust in Congress, national security, and checks and balances.

A Plan to Create Jobs, End Economic Uncertainty, and Make America More Competitive
After the introduction and the forward, the first section of the pledge deals with the economy. It reminds readers of various tax hikes that will go into effect if no legislation is passed to deal with it. The GOP goes onto promise said action to stop taxes from going up. It promises to cut small business taxes and red tape. Repealing the health care bill is also promised here, because of its mandates on businesses.

A Plan to Stop Out of Control Spending and Reduce the Size of Government
“Washington’s out-of-control spending spree needs no introduction,” says the first line of this section of the pledge. They promise to return spending to pre-bailout levels (which at least is a start), to end the Troubled Asset Relief Program (TARP) and to end government control of Fannie Mae and Freddie Mac.
The following quotation might not go over well: “Unfortunately, Washington Democrats refuse to listen to the American people and eliminate, restrain, or even budget for their out-of-control spending spree.”Many people will remember that Republicans’ spending was out-of-control as well. However, to be fair, our deficit and debt is primarily the result of the last four years of the Democratically-controlled Congress, and most of that during the last two years with a Democrat president.

A Plan to Repeal and Replace the Government Takeover of Health Care
The Republicans count the costs of the Obamacare bill as loss of jobs, increased medical costs, more debt and deficits, higher taxes, loss of Medicare coverage for seniors, loss of the ability to choose your own doctor and tax dollars funding abortions.
They pledge to repeal the law, enact “medical liability reform”, allow health insurance to be purchased across state lines, expand health savings accounts, “strengthen doctor-patient relationships” (who knows how?), and “ensure access for patients with pre-existing conditions.”
The only one of these promises that concerns me is the last, for this reason: “We will make it illegal for an insurance company to deny coverage to someone with prior coverage on the basis of a pre-existing condition.” First of all, I do not see how this is constitutional. Exactly what business is it of the government’s to decide what an insurance company will offer to its customers? Many people who do not have pre-existing conditions will likely prefer a company that does not offer such coverage, as they will offer cheaper policies, all things equal, due to the fact that they take on less risk. Why should they be denied that choice to go to an insurance company that decides not to offer coverage for pre-existing conditions?

A Plan to Reform Congress and Restore Trust
We have to at least give them credit for trying, right? I doubt that most cynics will be won over by anything that GOP does if they are elected, but maybe I’m just being cynical about the cynics.
Republicans pledge to publish the text of any bill under consideration online at least three days in advance, which may remind people of Nancy Pelosi’s joke of a pledge to run the most transparent and ethical Congress the world has ever known. They also invite scrutiny by pledging to cite the constitutional authority for every bill, which will only mean something to those who actually care about what the Constitution says. Lastly, they promise to consider issues one bill at a time, instead of putting together a package deal.

A Plan to Keep Our Nation Safe at Home and Abroad
The GOP list for national security includes the following: 1) Pass Clean Troop Funding Bills 2) Keep Terrorists Out of America (Keep Guantánamo Bay open) 3) Demand an Overarching Detention Policy 4) Fully Fund Missile Defense (my favorite) 5) Require Tough Enforcement of Sanctions against Iran 6) Establish Operational Control of the Border 7) Work with State and Local Officials to Enforce Our Immigration Laws (which sounds to me like not stopping Arizona from enforcing actual immigration law) and 8) Strengthen Visa Security

I have only two issues with the pledge. The first is the promise to make it illegal to deny coverage to patients with pre-existing conditions. The second is that they seem to be unwilling to deal with the two elephants in the room: Social Security and Medicare. They will be issues shortly whether anyone wants them to be or not. That is most important issue to spending. Unfortunately, the GOP seems to be unwilling to take a stand here. Maybe they plan to deal with it, but they don’t want to blow their chances at taking back the House and maybe the Senate by taking an unpopular position. I hope that that is why they mostly ignored it.
I do not have an issue with the vagueness of some of it. They will have to deal with political realities that exist when they take control.
Finally, it is up to us, the people to keep them honest and keeping their promises. To quote the GOP pledge: “In a self-governing society, the only bulwark against the power of the state is the consent of the governed.”

Poor Grade Students: A Call to Action

With much attention recently paid to issues like health care, bankrupted industries, economies in recession, global warming, immigration, and oil spills, one area seems to have been neglected: the plight of poor grade students. Much like low-income families, poor grade students have been lost in the fray as we rush to higher and higher education. Changes in the perceptions of degrees – a master’s degree today has about the same prestige as a bachelor’s did a generation ago – among other things are increasingly problematic for the poor-graded, as we continue to ignore this issue. One may shortsightedly see this plight as reflecting embarrassingly on both the educational system and on the students themselves.

But this view ignores a much larger and long term issue at stake. This is the impact of grades on the student’s economic future. Before we discuss that, however, we must detour in another (related) problem.

As the student moves upwards through the educational system, he will find it easier to acquire higher education if he has the high grades sought after by educators. This can be seen in the areas of scholarships, college offers, graduate work, honors societies and others. High grade students are given continuous opportunities to succeed. Lower graded students are not. Is it any wonder that this is the case? Those who run institutions of higher learning are generally PhD’s themselves and are likely biased toward those of their own education level, as well as maintaining the prestige of their degrees.

Let us go back now to the economic futures of students. As we have just seen, low grades will, in all likelihood, result in a lack of high education for the student. High education is inarguably linked to high-paying jobs. We find exactly what we expect: that, in Detroit, for example, the education level is low; the income level is as well.

This brings us to a related problem: that of “grade inequality”, the fact that not only do some students have high grades and some low, but that there is much in equality in the distribution of grades. This occurs along geographical boundaries and also within individual classrooms. It exacerbates the problem when 100% correct assignments receive a 4.0 grade while 50% receives 0. A correction of this system will hardly solve the problem at hand, however. College admissions and employers will soon adjust to this new arrangement. It is simply that this, along with the fact that high grades result in more educational opportunities, aggravates the issue of grade inequality. Something more pervasive must be enacted.

As we continue to think about this problem, we must also remember that grades tend to be hereditary. Children of higher graded parents often receive high grades themselves, and the same inheritance trends from lower graded parents to their children (unfairly, of course – these children did not receive this poor inheritance by their own choice, but acquired it through no fault of their own). This only serves to worsen situation for a poor grade neighborhood. Poor grade parents with low incomes will likely have poor grade children, who will likely receive low incomes, making them no more able to support their parents than their parents were able to support them. This, as anyone can see, will almost certainly keep lower grade communities low grade and high grade communities high grade. The economic results, I need not redundantly state.

Finally, there are some people who charge that students with low grades are just lazy, but that ignores many hard-working students that are simply unable to get ahead of the piles of homework stacked in front of them. We must not allow these unfortunate students to get lost in the fray.

What solutions might exist? So called “grade curves” might be used, but this can only be effective to an extent, as it is currently not mandated to employ them. Even if it were, this would only possibly solve part of the problem. It could help in the area of inequality across school lines, but it does nothing to promote equality within the classroom, since they simply raise the grades of all the students in a classroom with generally low test scores.

My solution would be this: Tax high grade students and give those grades to students with poorer grades. We cannot simply give everyone the same grade, as that would nullify anything the higher grade students have done. However, we can redistribute some grades. It is unnecessary for a student – we will call him Johnny – with a 100%-correct assignment to keep all 100%. 95% will suffice, as it is above the 4.0 line in any classroom. The 5% taken off the top could then be redistributed to Johnny’s friend, Tommy, who is struggling to stay afloat. Tommy, with his 66% on his assignment, will receive 5% on top of that and then achieve a passing 71%, and little Johnny will not have to go on to the next grade without his best friend.

This solution helps out the students at the bottom by relieving the top students only of the grades they do not really need. Not only that, but it will result in more equal distribution of grades. In the case of Johnny and Tommy, the difference is cut from 34% to 24%.

Of course, there would be a cut-off point. Not all higher grade students would have their grades taxed. This would be ridiculous. It would not even be necessary for middle-high students to give as much as the high grade students. The higher graded students can afford it; the middle-high cannot as much.
In order to solve inequality across geographical lines, it would be necessary to institute this plan at the national level. The total students who could be taxed would likely be enough to alleviate the plight of their fellow, less-fortunate students.

As to other solutions: a minimum grade law is something that we need to look into more. It would take some form opposite to the current grade system. Instead of 50% being graded at a 0 GPA, 25% percent – or another number determined by experts – would receive a minimum of 1.0 – or, once again, another appropriate number determined by experts. This could help keep students from falling through the cracks, but, again, more research should be done.

I see no realistic way of enacting an educational version of an estate tax – taxing parents’ grades when they die, and this does nothing to deal with the issue of the unfair inheritance of better grades by some children than by others. I do not see any point in pursuing that idea any further.

At this point, grade redistribution through taxation seems to be the best solution.

Bauer-ize Them

To many, the policy of reading Miranda rights to terrorists and making them aware of the legal right to remain silent, as well as the right to an attorney, is inexplicable. If the captured terrorist is part of a multi-target plot, like those involved in the 9/11 attack, why would we informationally handcuff those entrusted with the public safety by “Mirandizing” the terrorist who may be a source of crucial intelligence? The response is generally something along the lines of “It’s their right. That’s the cost of freedom.”

So the cost of freedom is that we do not allow those whose job it is to protect that freedom (or another basic right we in America hold dear – the right to life) to do that job effectively. Certainly we can all agree that when two things we want cannot exist at the same time, we must make a trade-off. We may sacrifice expediency in one area to protect freedom in another. But since when does the freedom of a person who intends to make war on our country and destroy us trump the protection of many law-abiding citizens?

Modern liberalism has some roots in what Thomas Sowell calls the unconstrained view of human nature . The unconstrained vision, which sees human nature as malleable and perfectible, finds the suspension of legal rights in the case of public safety a barbaric nod to warlike sentiments. Instead of “beating” the information out of him, we can convince him of the error of his ways with the humanity we extend through the legal system. This in turn will convert him into a man able to fit into civilized society; it will rehabilitate him, and eventually end the war. Rehabilitation is the solution offered for the problem, the crime of terrorism, as it is the solution offered by those who hold the unconstrained view for all other crimes.

The problem is that the terrorist is warring against us. He may be committing crimes while he conducts the war, but fundamentally he does not simply want to avoid the rules of our society, he wants to destroy the society and its people. He cannot be punished, deterred or rehabilitated. He, and his cohorts, can only be stopped, and our legal system is not adequate to wage a war against these enemy combatants, most of whom never possessed legal rights in the first place.

Instead, we “Bauer-ize” them.

Ronald Reagan and the Economy of the Eighties

“Far too many in our Nation’s capital have come to believe that progress is the result of passing laws and regulations. But . . . that isn’t so. It’s opportunities for hard work and risk-taking by people like yourselves that keeps this country building and growing. And more often than not, you’re doing it in spite of the roadblocks put in your way by government.” – Ronald Reagan

Many lies, myths and distortions have been perpetrated about the 1980’s and the economic effect of Ronald Reagan’s policies. It has been said that only the richer got richer and the poor got poorer, that minorities were ignored and were negatively impacted and that Reagan tax cuts were for the rich and worsened the United States’ budget deficit. Here are the facts so we can set the record straight:

1. For seven years in a row, (1983-89) the economic growth of the United States averaged 4%.

2. Total tax revenue increased by 99.4% from the beginning of the decade to the end. Inflation-adjusted tax revenue increased 28%.

3. The percentage of the tax rate paid by the wealthiest 1% of the population increased from 26.8% to 32.7%.

4. Average real family income grew by more than 15% from 1982 to 1989.

5. The percent of families who earned $50,000 or more (1990 dollars) increased from 25% in 1980 to 31% 1990.

6. The percentage of families that earned under $15,000 dropped.

7. Of those who were in the bottom-fifth of income earners at the beginning of the decade, 86% jumped at least one bracket, and 65% jumped at least two brackets during the decade.

8. More of the bottom-fifth income earners ended up in the top-fifth bracket by 1990 than stayed in the bottom-fifth.

9. Families who earned between $10,000 to $50,000 grew in net worth at a higher percentage than those in the top-one-fifth income group.

10. The bottom 60% income earners paid 20% less in total tax revenue in 1990 than in 1980.

11. Black families with incomes of $25,000 or more grew 50% from 1979 to 1989.

12. From 1983 to 1989, the population earning below the poverty line decreased by 3.8 million people.

13. 20 million jobs were created, 82% of them being high-skilled, high-paying jobs.

14. Unemployment dropped from 9.6% to 5.3% during his administration, the largest drop in recent history.


See:

- U.S. Bureau of the Census

- U.S. Treasury’s Office of Tax Analysis

- U.S. Office of Budget and Management

- William A. Niskanen and Stephen Moore, “Cato Policy Analysis No. 261, Supply-Side Tax Cuts and the Truth About the Reagan Economic Record,” Cato Institute, October 22, 1996.

- “The Real Reagan Record,” National Review, August 31, 1992.

- Lawrence Kudlow, “Lest We Forget: Ronald Reagan Changed the World for the Better,” Investor’s Business Daily, February 15, 2002

- Grover Norquist, “Reagan’s Legacy 20 Years Later: The Kemp-Roth Tax Cut Anniversary,” U.S. Newswire, August 13, 2001

- Daniel J. Mitchell, “Lowering Marginal Tax Rates: The Key to Pro-Growth Tax Relief,” Heritage Foundation Backgrounder, Number 1443, May 22, 2001

- Bruce Bartlett, “Not So Stimulating,” National Review, November 16, 2001

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This is an old Facebook note I did, with some changes. New posts are coming next week!

Reflections on the Passage of the Health Care Bill

In The Road to Serfdom, Friedrich Hayek said, “Probably it is true that the very magnitude of the outrages committed by the totalitarian governments, instead of increasing the fear that such a system might one day arise in more enlightened countries, has rather strengthened the assurance that it cannot happen here.”

Many who voted for President Obama say today that they did not know then what they were going to get. They did not expect that in the shining city on a hill of America we could go the way of the European welfare state; especially not against the strident opposition of opinion expressed by the American people. That a representative democracy could not only defy the wishes of so many, but that they could do it with such blatant disregard for the procedures that should confine them was, apparently, beyond their imagination when they voted for him and the Congress that assists him.

Edmund Burke said, “It is impossible for men of intemperate souls to be free. Their passions forge their fetters.” If that is true, then men born into freedom can give up that freedom simply through their intemperance. Perhaps it was our (the majority of American voters) passion for “hope” and “change” that cast our votes in favor of socialized health care long before today. An ignorant vote is a vote nonetheless.

Now many of those whose vigilance was sleeping are awake. They are engaged and they are angry. They cannot turn the clocks back but they will attempt to compensate for their mistakes by ridding themselves of those who betrayed their trust, hopefully resulting in a repeal of what has been done. Whether or not it is too late is yet to be seen.

I pray that that vigilance lasts. Entitlements are addicting. Even opposition to something before its institution can afterwards become an inability to let it go. Burke also said, “Custom reconciles us to everything.” Paine said, “Time makes more converts than reason.” This wariness must be sustained.

This new direction that we take, if indeed we do, must be towards a return to the Constitution as the rule of law in the United States. Circumvention of the processes of government for the purposes of expediency towards any purpose is a road to anarchy, or more exactly, to governance by the whims of the totalitarian. And the whims of the totalitarian, be they “benevolent” or not, are invariably dangerous.

Speaking of the Constitution, I hear much discussion of the ignoring of public opinion by those who passed this bill. They say it is immoral and undemocratic that the desires of so many people should be shrugged off for the purposes of the ideologues. I will take it a step further with a quote from Milton: “Is it just or reasonable, that most voices against the main end of government should enslave the less number that would be free? More just it is, doubtless, if it come to force, that a less number compel a greater to retain, which can be no wrong to them, their liberty, than that a greater number, for the pleasure of their baseness, compel a less most injuriously to be their fellow slaves. They who seek nothing but their own just liberty, have always the right to win it, whenever they have the power, be the voices ever so numerous who oppose it.”

Even if a majority of Americans supported the takeover of the health care of this country, government is bound by the Constitution not to do so. America is not a direct democracy, neither was it meant to be. Those who signed the Constitution understood, as evinced in the Federalist Papers, that liberty must be guarded against the tyranny of the majority, as well as political trends. As Johnny Jacobs said, “Change for the sake of change is Obama.”

Those of us who treasure liberty and understand the intellectual and philosophical history of liberty must be engaged and must convert others. It was a long road to get here. Rush Limbaugh pointed out that, “The history of the world is that of tyranny. Liberty is the exception.” The reform that (hopefully) is coming must be true reform for the sake of and with the understanding of freedom, not simply discontentment with our current government. As long as we can still speak our minds, everyone who desires liberty must do their part and must not grow cynical, disheartened or give up and sit on the sidelines.

My third and final Burke quote is this: “Nobody made a greater mistake than he who did nothing because he could do only a little.”

We have a lot of work to do.