Friday, February 24, 2006


On Civil Liberties

Chapter Five of the widely used introduction text “The Logic of American Politics” concerns civil liberties in the United States. Like many other texts, it defines civil liberties as “fundamental individual rights protected by law against unwarranted governmental interference.” I find the definition satisfactory – short and to the point. In an ideal world, the word “unwarranted” would be struck from the record.

Despite the obvious merits, my Introduction to American Government Class was wholly unimpressed: with the definition and with the concept. Government interference, warranted or otherwise, seemed like a good idea to most of my 35 students. “After all,” they reasoned, “who would protect us, if not for government?”

Just to test the waters - and stir conversation a bit - I assigned my students to read two unapologetic tirades against government incursions into civil liberties in the United States. The first reading – brought to us by the ACLU – expounded Patriot Act abuses of six of the 10 amendments in the bill of rights, plus its further trampling of due process as defined by the 14th amendment. The second reading detailed the slow, deadly growth of the cancer we know as Federal Income Tax.

To UNC students of political science, “interference” is simply a matter of degree. Some government encroachment of rights is just fine, as long as it’s not too much. The “right” to private property only extends to about 70% of income; after that, the government can appropriate at will. Habeas corpus applies only to U.S. citizens, in peacetime and when detainees aren’t “dangerous;” some people ought to be locked up in the name of national security and the common good. Apparently, giving up a little liberty in exchange for security isn’t such a bad thing after all. So say my students.

I think what shocked me most was that my students didn’t seem to take sides, at least not traditional partisan ones. Doves on the left didn’t defend habeas corpus against Hawks on the Right. Conservatives didn’t denounce the federal income tax against tax-and-spend liberals. Instead, they immediately looked for common ground; the search for the minimally acceptable policies spanned nearly an hour of class time. Almost all were willing to compromise.

In the end, I got the impression that rights and liberties were really just conveniences; they’re nice things to have when government doesn’t think better of it. Government’s role as ultimate protector, arbiter and insurance agent precludes it from always honoring individual rights.

But should we really compromise our liberties? Aren’t there some absolutes? Individuals have a right to property all the time? Habeas Corpus applies to everyone, no matter what, unless Congress actually suspends it? Due process means that even the national government has to abide by rules?

Apparently not. The next generation of lawmakers bows to the gods of practicality and compromise. Even the Constitution has to make concessions sometimes. After all, the government couldn’t do its job if it had to worry about rights all the time.

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Well, before you criticize your students too much, you might want to wonder whether your own beliefs are much different. Aren't all rights only applicable to a degree?

Take for example, pollution. I think we might both agree that your neighbor burning trash on her side of the fence, unloading blinding ammounts of black carbon dioxide smoke onto your side of the fence without permission would violate your propety "rights".

But your neighbior also produces carbon dioxide when she breaths. If you really had the right to keep any unexcused carbon dioxide off your property, your neighbor would have to ask you for permission to breath everytime the wind changed in your direction. I doubt you would argue that this also falls under your bundle of "property rights" (I hope).

The difference between the two examples is only a matter of degrees, and thus your rights are only applicable "to a degree".

Now, I wish I could claim this complaint as my own, but I am lifting it from David Friedman.

I just think it is a really good illustration of the practical problems that can arise form "rights" arguments.

This isn't even mentioning the philosophical problems that arise when we start asking where rights are suppose to come from to begin with. I've asked around and I've gotten two answers. God and Murray Rothbard.
I'd have to disagree with your assumptions. I wouldn't consider it a violation of my rights for my neighbor to burn trash. I have no claim over the air around my property - clean or otherwise.

Air isn't scarce. I don't own the air that circulates around my property. I own the land.

My neighbor, owns his land. He also owns his trash. If he wishes to burn it, that's his prerogative. I'm probably one of a small handful of people who think that way. But it comes from a very simple premise. Stopping my neighbor from burning trash would require coercion; Not stopping him would require no government action whatsoever.

For me, it's an easy decision.
Then what do you mean by own?
Own: verb, tr:
1. To have or possess as property
Well, I mean what rights come with owning a thing as property.

Property rights are really a bundle of rights. And It would seem that one important aspect of "ownership" would be the ability to (or "right" to) use that thing as you see fit (to an extent), but you don't seem to agree.

If you did, you would think that the blinding black smoke hovering over your land would conflict with your right to use your property (how can you use land if you can't see it?). IOW: You would see it as property rights conflicting (which can happen, even if you believe in "rights").


Or maybe that is the property right you recognize? To simply "have" or "posess" something in some sense?
No actual rights to control one's property, but the right to "claim" it or "possess" it?
This really does have problems since no one owns the air. Additionally, allocating property rights to emissions (tradeable permits or effluent tax) has problems. In the neo-classical sense, this individual's action creates the externality of air pollution that is infringing on the property rights of the neighbor.

The problems is, what rights does that neighbor actually have? They do not necessarily have a "right" to fresh air or even clean air. There is a certain optimal amount of pollutants in the air and it is not zero. So what percentage level 'pollutants to oxygen' does someone have a "right" to?

We can only have an externality if we can identify that it does harm someone, that the MSC does not equal MSB (costs are not internalized), and indeed some right is being infringed. Since the rights are not effectively established and rights aren't necessarily infringed (although a nuisance is created - a nuisance does not necessitate a violation of rights). So, it is indeed a complicated issue.

Well, i would think the blinding smoke would violate ones right to use their property as they see fit (within limits), whether or not one has the right to the air above their property or not. Maybe not.

If you wanted to remove the "complexity" of rights to air, one could just use another of Friedman's. Am I violating your property rights by shining a flood light on your property that is so bright you can't see?

But I think you're right, this discussion essentially boils down to what rights one has with regard to ones property.

But I think what would be more important for Jenna's argument is why we have certain rights and not others. I think everyone one agree that people have some rights with regards to their property and not others, but I would like to know why she believes the rights she assigns are "absolute". And maybe even what she means by "absolute"?

Her argument is certainly unique and I would hate to assume she means something she doesn't (since that got me into trouble in the first post).

I look forward to hearing form her and other people's comments on the topic. :)


I don't mean to derail the present conversation here, but can there really be an argument about the particulars of rights without a consensus about the actual nature of rights?

For instance, if I were to state that rights come externally of opinion (i.e., from God), then by my definition they are objective. If someone else were to state that rights come through one's opinions or interpretations, or through the agreement of the majority, then they are subjective.

If you're of the opinion that rights are subjective, then it seems to me that any debate on the subject is entirely frivolous.
Well i think that is what I was trying to get at when I asked Jenna what rights she considers absolute and why. :-P

But I would have to disagree with your last statement. That if we disagree all debate on the subject is "frivolous".

There is really nothing about the subject that would make me think one can't discuss their opinion. If one believes that rights are given from God, then they can easily say that. If they can't prove it, so much worse for their argument.

But imagine the practical consequences of not being able to rationally debate the subject. How could you expect to use natural rights arguments as the foundation for policies if you couldn't even rationally discuss those foundations with people that disagree?

I wouldn't be particuarly crushed by that conclusion, but I don't think that would be the solution Jenna is looking for.
I have read Machinery of Freedom, but where can I read Friedman's opinion on the statement you like to use a lot.

"Am I violating your property rights by shining a flood light on your property that is so bright you can't see?"

Are all nuisances/undesired activities an infringment on property rights (noise, smoke, smells, sounds, lights, music, language, etc.)? So the real issue becomes the just compensation according to the degree of "voltage" (in this case)?

And Brian I agree with Dallas. Even if all rights are God give, how do we know where they end and begin? And over the years of this world, many cultures have had many gods. Without debate or challenges, how do we know what rights God intended for each of us to have?
Here is a webbed version of his chapter on the "problems" with absolute rights arguments.

Click Here

And that is a good question, and I suppose one of the essential ones about this problem. I would think that most any nuiciance(sp) is an infringement if we truly believe that a person has the "absolute right" to use his/her property without any infringement.

Whether those nuiciances(sP) require compensation would be a matter to settle between the two property owners. But before they could begin to settle the matter, they would have to agree whether the one person was violating a specific "right" the other had.

Or at least that's the way it seems to me. :)
Good post, Jenna.

This is particularly disturbing if you hold the view, as I do, that government should only exist to protect the natural rights of its people.

If government must step on rights to "do its job," then it is doing too much. Indeed, it's contradictory to infringe upon rights in order to "do your job" if your job is to protect rights.

Good discussion so far, too. I think it would be interesting, in the case of the burning trash problem, to consider the home, yard, and the whole environment in that space one "good".

Consider for example how much less you would have paid for the house if you knew there would always be smoke in your yard. You paid for a house that comes with clean air, not one that's smoked-out.

To answer Chris: Yes, I think all nuisances are violations of property rights unless the nuisance was in the contract.
Thanks, Travis.

I like the point about contracts. And I'd like to pose another question: if the nuisance always existed, wouldn't it be included in the price?

Also, in answer to an earlier query, I do believe that rights are objective; however, I don't think they necessarily must come from God in order for one to believe that.
How do we know what rights we have? Hmmm.
How do we know how many planets there are? By scientific investigation. Various theories were attempted at explaining the universe and currently we have a model that includes probably 10 planets in an heliocentric solar system.
What rights do we have? We can know by scientific investigation. The courtroom is our labratory, and judges are the scientists in a common law system. Such an arrangement existed in England off and on for several hundred years. The development of good law coincided with the development of good science. Now both are failing.
Common law got far enough to determine that life, liberty, and property are three of our inherited rights. It answered a lot of questions. But the system was destroyed before it could answer others.
So, whether Murray Rothbard is God or not, we know that we do have certain rights as a law of nature.
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