Monthly Archives: May 2010

There Is No Such Thing As “State’s Rights”


Stephen Green has an excellent column this week at Pajamas Media where he cautions his fellow libertarians to stay away from the siren call of the “state’s rights” movement:

We need to give up this notion of “states’ rights.” First of all, it’s in bad taste. The phrase used to be code for “Jim Crow.” And while I’m certain that’s not true for 99% of us, we can — and should — do better than to emulate vile racists. Secondly, however, “states’ rights” is a misnomer. It’s an impossible thing. It doesn’t exist, and shouldn’t.

Let me explain.

I remember reading once somewhere 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. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

In other words, individuals have rights, and governments are instituted with powers to protect those rights, and are (or ought to be) restricted from abusing them.

With me so far? Individuals have rights; governments have powers.

As Green goes on to point out, the ongoing tension between the state and Federal governments was instituted to protect individual liberty not to give some amorphous entity called a “state” rights over it’s citizens. In fact, the Constitution specifically provides the Federal Government with the power to step in when the states step over the line:

One of the tensions that exists between Washington and the states is that Washington has the duty — the power — to “guarantee to every State in this Union a Republican Form of Government.” And when a particular state government discriminates against 20, 30, 40% of its citizens, then it’s no stretch to argue that that state no longer enjoys a republican form of government. At least not how republicanism is properly understood in this country.

More importantly, we fought a war that pretty much resolved the issue of state’s rights, and afterwords passed an amendment that significantly altered the relationship between the states and the federal government. Whatever the “rights” of the states may have been before the ratification of the 14th Amendment, they were significantly cut back by it’s adoption. So it is pointless to talk about the 10th Amendment in a vacuum as if the 14th Amendment doesn’t exist.

Green closes out with the most important point:

States don’t have rights. Individuals do. It’s time we went about the business of restoring those rights, without alienating a huge constituency which suffered too long without them.


Quote Of The Day

The NYT has a story today about a student racking up a crushing amount of student debt to earn a degree at NYU, blaming everyone except the student for allowing her to build up that debt.

Of course, I have some serious blame for the lenders too, when I realize exactly what they were investing in.

She recently received a raise and now makes $22 an hour working for a photographer. It’s the highest salary she’s earned since graduating with an interdisciplinary degree in religious and women’s studies.

Even if she eventually can pay off all this debt, all I can say is: what a waste of 4 years and $100K.

The Conscience Of A Phony Libertarian: Wayne Allyn Root And The Decline Of The Libertarian Party

If the only book on libertarianism that you ever read was Wayne Allyn Root’s The Conscience of a Libertarian, then you’d be compelled to conclude that the most important liberty issues facing America are internet gambling, tax cuts for small businesses, and home schooling. That’s because Root, a former Republican who became the Libertarian Party’s Vice-Presidential nominee in 2008, seems to devote far more space to those policy areas than to others that most libertarians that I know care about, such as civil liberties, the war on drugs,and the national security state. In fact, I think it’s fair to say that Root spends far more time talking about himself, and why only he is capable of making the Libertarian Party competitive, than he does about these issues, or about what it really means to be a libertarian.

That’s understandable, though, because this is quite obviously a campaign book designed to bolster Root’s bid for the 2012 LP Presidential nomination, and because Root is not much of a libertarian.

Like many Republicans, conservatives, and “Constitutionalists,” Root blindly worships the Constitution to the point where “state’s rights” take on more importance than individual liberty. For example, he suggests early on at page 18 (in my copy at least) that individual states should have the “right” to decide issues like abortion, gay marriage, stem cell research, online gaming, assisted suicide, and drug use. This may be a perfectly correct Constitutional position, it is not, however, a libertarian position. To a libertarian, state interference in an individual’s life is wrong whether it happens at the federal, state, or local level, and a law saying that someone can’t ingest a certain substance is wrong regardless of whether or not the Tenth Amendment authorizes it.

Another example occurs on page 75, where he says that the Supreme Court’s decision in Loving v. Virginia, where the Court struck down state laws barring interracial marriages, was the wrong decision. Instead, he says, the Court “should have declared that government had no right to license marriage at all.” I happen to agree with the idea that marriage and the state should be separated, but this reaction to the Loving decision strikes me as bizarre, not the least because the Court never would have done what Root proposes because none of the litigants in the case were asking it to do that. Loving was decided correctly, why is it so hard to say that ?

On page 222, Root demonstrates yet another deviation from libertarianism when he discusses immigration and says; “We must secure our borders and bring illegal immigration to a screeching halt. How? By protecting our borders with all those troops we will bring home from … around the globe.” Militarizing the border ? Hardly a libertarian position, but definately a Republican one.

On page 257, he endorses the debunked claims of the anti-vaccination crowd: “I believe that our national epidemic of autism and ADHD has a definite connection to the large-scale vaccinations required of our young children.” There is, of course, no evidence to support this claim but I suppose that if Root were the nominee in 2012 the LP would get Jenny McCarthy’s vote. This is a minor issue, and not really “libertarian,” but the last thing the LP needs to do is associate with someone who believes in pseudo-science.

The final strange passage that I’ll reference here is on page 29, where Root discusses his reasons for leaving the Republican Party (mostly because they wanted to ban online poker), and says, “nothing made my decision clearer than the morning of October 19, 2008, when I heard the remarkable announcement that General Colin Powell was endorsing Barack Obama for President of the United States… I was finally completely at peace with my decision to leave the Republican Party…” This was nearly five months after he had been nominated to run on the Libertarian ticket; had not made his mind up about the GOP at that point ?

After reading this book, and based on my previous experiences of watching Root during his various appearances on cable television, I am left with the over all impression of someone who is a cross between a televangelist and a used car salesman. The one thing that he seemed most concerned with is his own self-promotion, and I question his commitment to the ideas of the party that he proposes to represent.  I will give Root credit for being energetic, but libertarian he’s not.

SCOTUS will Hear Hank Skinner’s Case but Might Not Make the Final Decision

Yesterday SCOTUS decided they will hear Hank Skinner’s case; arguments will likely be heard sometime next year. However, even if Skinner ‘wins,’ SCOTUS is unlikely to decide once and for all if convicts have a Constitutional right to challenge their convictions if exculpatory evidence becomes available post-conviction. Legal experts say that the most Skinner can hope for is a SCOTUS ruling which would allow a lower court to make the decision which would likely lead to one appeal after another and potentially find its way back to SCOTUS.

Brandi Grissom writing for The Texas Tribune explains the long road ahead if SCOTUS rules in Skinner’s favor:

Even if the court agreed that Skinner can request DNA testing under federal civil rights law, Hoffmann said, it’s unlikely the courts would rule that he has a constitutional right to prove he was actually innocent. The Supreme Court has never ruled that the Constitution spells out such a right. It’s likely that Skinner’s case or a similar one would make its way back to the Supreme Court and eventually force the court to face that question. If the court were to answer it affirmatively, Hoffmann said, it could start a flood of litigation from inmates claiming innocence. That, in turn, could raise a myriad of questions about how the justice system operates and really “gum up the works,” he said. “They really don’t want to kind of bite the bullet and recognize this as a federal constitutional right.”

Allowing DNA requests under federal civil rights law would also bring the Supreme Court closer to a larger question that Blackburn and Hoffmann said the elite jurists have carefully avoided: whether inmates have a constitutional right to prove they are actually innocent. With the rise of DNA science, the question looms large in cases such as Skinner’s, in which testable evidence exists that the jury never heard. Currently, federal innocence claims are primarily based on deprivation of an inmate’s constitutional right to due process — things like shoddy representation or biased juries. There is no legal remedy for convicted criminals who claim the jury just got it wrong, even though their rights were properly protected at trial, Hoffmann said.

“Whether they’re actually innocent or not is kind of a legal irrelevancy once the jury has spoken its version of the truth,” Hoffmann said. “Basically, our legal system is constructed in such a way that that’s the end of it.”

I’m not a lawyer and would never claim to be but a criminal justice system in which judges and lawyers can say that actual proven innocence is ‘legally irrelevant’ is surly a criminal justice system that is broken – particularly when an individual’s life is on the line.

This is why I do not trust the government to kill in my name. There is a legal definition for taking the life of an innocent* person: homicide.

» Read more

Why I Don’t Listen To Jenny McCarthy — Or the CDC

The journalist responsible for the original uproar about the MMR vaccine and autism has been shown to have produced very shoddy research, and widely discredited. He was even recently banned from the practice of medicine in the UK. This has, of course, not quieted the debate. In fact, it’s gotten even worse, with his vaccine supporters claiming the science is settled, and vaccine opponents acting as if this is all a big cover-up.

The problem with this debate, for most people, is that they don’t have the training to actually view the real research and make an informed decision. They’re trying to decide whether to listen to their usual source of information, an emotionally-charged celebrity (Jenny McCarthy) or to trust the authorities, who just naturally have that stink of “they must be hiding something” about them. Add a dash of humanity’s propensity to swallow conspiracy theories, and nobody knows what to believe.

As a parent, I decided it was my job to educate myself and make the decision for my kids, regardless of what the CDC said. Nothing is riskless. It is my job to weigh the risk of vaccinating against the risk of not vaccinating, both for specific vaccines, for the age of administration of those vaccines, even to the level of possibly discriminating against brands of vaccine based upon ingredient levels (you may laugh, but I have asked my pediatrician which brand they use).

Some anti-vaccine folks in my extended family supplied me with the crackpot books they’ve read (i.e. books where the author was denouncing the entire germ theory of disease as bogus), and it was clear reading these that the authors had an axe to grind. A book written from an ideological perspective is not necessarily a disqualification, but books where the ideology trumps the science are out of the question.

I ended up on a book published by my kid’s pediatrician. I chose it because it seemed to honestly and neutrally discuss the relative diseases guarded against, the ingredients of the vaccines in question, and the safety record of the vaccine. The author supports vaccination, but it was clear that he did his level best to offer the evidence without bias, separate from his own recommendations pro/con on each vaccine.

I ended up choosing the vaccine schedule that I put my kids through based on that information — i.e. a cost/benefit analysis of the likelihood my child might contract the disease in question, the severity of the disease if he did catch it, and the relative risks of the vaccine in relation to the above.

As an example, I chose that my children get the polio vaccine. While it’s a rare disease, it’s a particularly nasty disease, and the vaccine is one of the safest available. I also chose to get vaccines such as HiB and Rotavirus, because they’re relatively harmful diseases, particularly in infancy, and also diseases that my kids aren’t that unlikely to contract.

On the other hand, I chose against MMR. While measles, mumps, and rubella are common, they’re also typically mild diseases. The vaccine has a higher prevalence of adverse reactions than most, and there is a worry that some of the vaccines for “mild” diseases can lead to complications later in life, with a more virulent and dangerous form of a disease affecting the individual in adulthood. Thus I didn’t believe taking risks to protect my kids from diseases that seemed relatively innocuous in most kids made a lot of sense, especially since the long-term effect is unknown. I had the same rationale for the chickenpox vaccine.

I also opted for a more spread-out vaccine regimen (i.e. not necessarily later in life, but more visits and less shots per visit), because I think the likelihood of an adverse reaction may be increased when you subject a body to the stress of several vaccines at once.

This, of course, is done with the unique attributes of my family taken into account. It’s a low-risk household, with the kids breast-fed until 12 months, no day care, and not a huge amount of interaction with hordes of other youth. Further, they’re well-nourished and healthy kids, so I feel they’d be far better than “average” at weathering the storm of a disease like measles or chickenpox. This, of course, also makes them less likely to have an severe adverse reaction to a vaccine, so it affects the risk/benefit of vaccinating just as much as not vaccinating.

I know that this decision is my responsibility as a parent. I know that I am weighing some risks against others, and that there’s a chance that things could go wrong. It is because of that responsibility that I read 3 books cover-to-cover on the subject, discarding two of them as trash and settling on one that I thought trustworthy before making my decisions. At the end of the day, I feel like I made the best decision I could, given the evidence I had, and I and my family are going to be the ones who have to live with the consequences, right or wrong. That’s a heady weight, and one that most parents probably don’t want to bear. But that’s the responsibility that comes with raising a child.

The problem will come when the kids need to go to school. The schools typically demand that you’re current with all or most of the vaccines on the CDC schedule. Most public schools will allow you to let your unvaccinated child attend if you claim a philosophical objection to vaccinations. It’s a major hassle, but they do allow it. The problem for me is that I don’t have a philosophical objection to vaccination (especially as an atheist — no religious reasons for me). One of the pieces of evidence against a philosophical objection is to give your child any vaccines — i.e. my piecemeal approach is not philosophical.

I do have a philosophical objection to bureaucratic one-size fits all government mandates, though, and thus I don’t accept that the government should be the one demanding that I follow their cost-benefit analysis for “most” kids when it doesn’t fit my family’s particular situation. My philosophical objection is being forced to take risks with my children that the CDC wants me to take, when I’ve evaluated the research myself and I disagree. That objection, though, is less well accepted in California than Scientology.
» Read more

1 2 3 9