is this is an empirical case movie: i.e. that, controlling for all other factors, there is a strong correlation between the alleged deterrence effects of the Shepherd legislation and any positive trending in recorded attacks on gay and black individuals? Or is this a message movie?

I've yet to see it convincingly argued (supported by data) that hate-crime legislation makes the thorough investigation, responsible prosecution and appropriate sentencing of the killers of victims like Byrd and Shepherd any more or less difficult. There are always variables which legislation cannot anticipate. In Satender's case, it was that the accused individual had a prefab international escape route and strong support network in the community--including, apparently, that of local law enforcement and judiciary.

What this bill fails to do is offer a practical risk-management suggestion: to know exactly where you actually have to look over your shoulder and do so diligently. If I am mugged over the weekend, it's far more likely for it to be because my city jams the entertainment centers and public housing into the same geographic bowl, not because some rural squire thought I was AQ, and I cannot see any convincing assurance for my safety granted by the punitive penalties of hate-crime legislation. In an informal poll of the likeliest perpetrators of racially-motivated and violent crime, does one think that there will be a clear majority of hate-crime legislation scholars? Sociopaths who act on their feelings are rarely solicitous of the legal system's sentencing guidelines.

Again I ask, why do we need hate crimes legislation? What makes a crime committed out of race/religion/sexual hate worse than a crime committed out of regular hate.

Chin’s story is one that as South Asian Americans, we can all relate to

Uh, ...no. Definitely not all.

Basically I am more concerned about being mugged in a poor / minority (non-Indian) neighborhood. Getting beaten up by a racist is something I almost never think about, even when I travel in the South.

Again I ask, why do we need hate crimes legislation? What makes a crime committed out of race/religion/sexual hate worse than a crime committed out of regular hate.

Trully awesome!

"Again I ask, why do we need hate crimes legislation? What makes a crime committed out of race/religion/sexual hate worse than a crime committed out of regular hate."

I think the idea of hate crimes legislation is a lot like the need for women's seats on a bus in India. (A discussion about spaces reserved for women going on here: http://blog.blanknoise.org/2009/10/pink-taxi-pink-bus.html#links)

Obviously there is a problem going on if you need to make special legislation against hate crimes, the same if you need to make special seats for women. Both act as a stop-gap measure, where the real long erm issue that needs to be addressed are the mindsets of the people.

The whole notion of hate crimes legislation strikes me as thought crimes legislation. It's abhorrent that people have hatred based on race/religion/sex/etc. It's even more abhorrent that crimes are committed based on these opinions. But it's not illegal to have such thoughts.

Because crimes committed due to hatred of particular classes of people are usually committed with a broader agenda in mind. For one thing, you're more likely to do it again. For another thing, crimes motivated by ideology require a much firmer hand to put down than ones motivated by cupidity.

I have yet to see some justifiable reasons for hate crimes legislation. The reasons quoted above strike me as crime prevention akin to the movie Minority Report.

The "firmer hand" theory is, in my view, unjustified. A life of, say, an Indian committed by a racist is worth just as much as the life of an Indian killed by another Indian.

Also, if we're going to enact laws with firmer hands, then shouldn't we also enact tougher legislation for honor killings, gangland violence (regardless or how insignificant).

We have 3 strike legislation to deal with repeat offenders. We don't need to get at them through the back door via hate crimes laws.

Basically I am more concerned about being mugged in a poor / minority (non-Indian) neighborhood. Getting beaten up by a racist is something I almost never think about, even when I travel in the South.

Get back to us after you get assaulted. I almost got the $hit beaten out of me in New York on the Lower East Side and there are many South Asian victims of hate murder. I have a problem with hate crimes legislation for different reasons (largely due to the fact that it will be dispropritioantely used against exactly the people you're racist / classist against and also I think this particular bill is tied to a defense bill which is a wonder of myopia), but the idea that discrimination against South Asians in the United States is gone? That's not reality-based.

The whole notion of hate crimes legislation strikes me as thought crimes legislation. It's abhorrent that people have hatred based on race/religion/sex/etc. It's even more abhorrent that crimes are committed based on these opinions. But it's not illegal to have such thoughts.

1. It is intended to serve an 'educative' purpose - it makes a statement about what society is for or against. You may disagree, but that's what it does.
2. It doesn't prosecute anyone for any thoughts. You can think as many racist things as you want. You just can't beat anyone up on that basis.
3. In practical terms, hate crimes legislation doesn't really add a new category of crimes, as far as I can tell. What it does, as far as I understand which is not very much, is alter sentencing for crimes based on the motive and/or mental state. The legal system already does this (e.g. manslaughter vs. murder, not guilty by reason of insanity, etc.). Your argument is simlar to opponents of affirmative action to universities who don't note the existence of the legacy system for children of alumni. It's just a different value that's being introduced, not an entirely novel kind of thing.

There are plenty of reasons to not support hate crimes legislation - one of them being exactly that it is punitive in nature and avoids a discussion of how to develop better criminal justice practices like doing something besides throwing someone in jail forever. And because it is an anti-racist strategy or anti-homophobic or anti-sexist strategy that uses the criminal justice system, it depends on the fairness of the criminal justice system.

Further, Racists are people and most people are directly or indirectly supporting some kind of racist, and that needs to be understood - hate crimes legislation advocates sometimes don't seem to understand that. But it's a complicated issue - not cut and dry.

Why should hate crimes be treated differently ? Very simply because when it
comes to the actual acting out of hatred in a violent manner (not just thinking about
it, as some have stated as 'thought crimes') you are committing a form of terrorism.

When you commit a hate crime, you are singling someone out not for financial benefit
but because they are different from you. When this act is committed, it affects not only
that individual victim or their family, but the entire community to which that person belongs.
It leaves everyone feeling threatened and targeted; unsafe and unwelcome.

The Southern states used the same excuses during Jim Crow - you can't tell us how to think or act,
let us take our own time to figure things out, etc etc. The Attorney General specifically stated that this
will only be applied to actual incidents of violence, not for expressing your religious opinions on orientation
or lifestyle.

To people who are against this legislation, it is a matter of high level ideology and rhetoric.
To the ones who are getting attacked and beaten to death because of who they are, it is a matter of life and death.

The "firmer hand" theory is, in my view, unjustified. A life of, say, an Indian committed by a racist is worth just as much as the life of an Indian killed by another Indian.

We draw lines differently based on whether you committed a crime of passion or the extent of premeditation. We draw distinctions on whether you kill someone in self-defense or not. And we draw distinctions as to whether you kill someone solely due to their race/ethnicity/religion versus other reasons. Calling it "thought policing" is a canard. You can hate anyone you want. That's not illegal. It only becomes a hate crime when you commit a crime based on it. And why shouldn't it? What's going through one's mind as they are committing a crime out of racial discrimination is fundamentally different from what goes through the mind of someone who is committing petty theft or somesuch. Moreover, the social damage is greater. If you value diversity in society, allowing gangs to target specific in order to squash that diversity is going to do more damage than petty theft or random murder would. With the latter all you're taking is money and safety. With the former you're taking money and safety and culture.
So given these empirical facts, you ought to be justifying why we shouldn't regard the crimes differently.

The only real argument I see in that vein is that the enforcement of the law can be somewhat selective and arbitrary. So you're unlikely to prosecute something as a hate-crime if you a group of Black men beat up a White guy and steal his laptop while shouting "Cracker!" But flip it around and it's a hate-crime. That is a valid concern as are concerns of it being used as a way to play political games by having minority leaders rally support by trumping up charges. The general principle, however, is sound. It just needs to be ironed out at the edges.

Also, if we're going to enact laws with firmer hands, then shouldn't we also enact tougher legislation for honor killings, gangland violence (regardless or how insignificant).

1. It is intended to serve an 'educative' purpose - it makes a statement about what society is for or against. You may disagree, but that's what it does.

Laws should be enacted with a focus on promoting the general welfare and protecting people's basic liberties. Not on trying to make people "better." That kind of thinking inevitably leads to having the government coopted by moralizing busy-bodies.

Calling it "thought policing" is a canard. You can hate anyone you want. That's not illegal. It only becomes a hate crime when you commit a crime based on it

Attaching the thought to a crime may help the law pass constitutional muster, but it doesn't mean concerns over thought policing are a canard.. especially given the context of a world where non-violent expressions of such thoughts are punished (on left-wing US campuses) as well as in legislation drafted by the UN.

If we passed a law saying anyone who commits a crime and is motivated by a desire to to further a communist system will get additional punishment, such a law may not be a pure thought crime, since one must act on the thought in order to be punished, but it does thread very close to thought policing.

where non-violent expressions of such thoughts are punished (on left-wing US campuses) as well as in legislation drafted by the UN.

hilarious, manju. both the "left-wing us campus" and the un punishing somebody. very funny.

Another hilariously stupid decision. So called "positive discrimination" is still discrimination. If you kill a child, why does it make a difference if the child is white, black or yellow, or whether the child was killed because of his race or gender??

One huge step backwards. This decision reeks of racism.

If we passed a law saying anyone who commits a crime and is motivated by a desire to to further a communist system will get additional punishment, such a law may not be a pure thought crime, since one must act on the thought in order to be punished, but it does thread very close to thought policing.

They're trying to destroy and reshape society in their own image for God's sake.

Excellent post. And some great comments, especially by Yoga Fire, regarding why certain crimes have different penalties than others.

Oh, and for those of you who think that hate crimes legislation is a form of racism...STFU and move to the back of the bus where you belong.

And Manju, seriously? Are you really trying to make a connection between hate-crime legislation and McCarthyism?

hilarious, manju. both the "left-wing us campus" and the un punishing somebody. very funny.

1. Student found guilty of racial harassment for reading a book.

2. UN attempts to make defamation of religion a violation of human rights.

I neglected to mention the most important context: the existence of not just hate crime laws, but indeed hate speech laws, in europe and canada... which has resulted in critics of islam, like macleans magazine and Oriana Fallaci, facing censorship from the state.

while the first amendment has effectively stopped such censors here in the US, that's only because of coalition of right-wingers and civil libertarians have pushed the left back. but they have gotten close. for example, 4 scotus justices in boy scouts vs. dale voted to effectively restrict the free speech rights of the boy scouts, in the name of anti-discrimination. that's a close call and that's why we should be concerned about thought policing.

Manju, you're jumping at shadows. Every criminal statute has an intent element defined in the statute and/or by case law. A handful have strict liability--it doesn't matter what your intent was (e.g., jaywalking). Others have extremely heightened intent that you knew the act was criminal (e.g., certain tax crimes involving violation of arcane regulations). And every violent crime has varying degrees of intent; that's why negligent homicide is at one end of a spectrum that includes terrorist killings and assassination at the other.

So hate as much as you like. And spew forth your hate as much as you like. The First Amendment still protects you. Just don't act on it or incite others to act on it.

I wish I had been brown in your world rather than my own such that I could hand wring in worry for the haters rather than breathe a sigh of relief that legislation, expressing collective societal standards of behavior, protects me against violence targeted against me because of my race, ethnicity, sexual orientation, and other characteristics that make me a bigger target. And that were such a thing to happen to me or my family members, that the retributive objective in particular of the criminal-justice system could be better achieved, proportionate to the nature of the evil that was inflicted. And it is a greater evil than just random violence because, as President Obama said as he signed the law, "[W]e must stand against crimes that are meant not only to break bones, but to break spirits--not only to inflict harm, but to instill fear."

One would think that crimes committed specifically with an eye towards overthrowing the social order would be more harshly than a crime committed without that in mind.

attempting to overthrow the govt is crime. but committing a crime with the motive of furthering communism is a different breed, and should raise the concern of all civil libertarians.

for example, a pace university student was charged with a hate crime for stealing a koran and putting it in a toilet. normally it would've been a misdemeanor but the addition of a hate crime tranformed it into a felony, which in turn transformed the punishment from a fine to years in jail, if convicted.

now imagine if a commie stole a US flag and burned it and was sent to jail for years while people who merely stole flags got a fine. problematic, no?

Manju:
Now those cases are incidence of actual attempts at thought policing. But do you think it helps or hinders the cause for personal liberty and minding your own business when people cry "wolf" for things like hate crime classifications that are only tangentially related at best?

for example, a pace university student was charged with a hate crime for stealing a koran and putting it in a toilet. normally it would've been a misdemeanor but the addition of a hate crime tranformed it into a felony, which in turn transformed the punishment from a fine to years in jail, if convicted.

now imagine if a commie stole a US flag and burned it and was sent to jail for years while people who merely stole flags got a fine. problematic, no?

And Manju, seriously? Are you really trying to make a connection between hate-crime legislation and McCarthyism?

i wasn't thinking that but thats not a bad analogy. racial mccarthyism exists and i don't want to a empower the anti-racist left, many of whom have very wide defintions of racism and have no love for the first amendment or indeed American freedoms in general, anymore than i want to empower joe mccarthy. add to that demagogues like al sharpton and you can have an explosive situation.

so, for example, speaking of Sharpton, he championed the case of megan williams, a black woman who allegeded rape and racism and recently recanted. her backers wanted the prosecutor to try the defendants on hate crime charges since they allegedly used racial slurs during the rape, but for some reason the prosecutor declined and got them convicted on just kidnapping and rape, though of coure now they may be set free.

but knowing demagogues like sharton exist, i don't think its good for society to give them another weapon.

"If society wants to be "for" or "against" something, then let society be "for" or "against" it. The government doesn't need to get involved. This mentality where we need to always be enacting laws to reinforce our personal mores is exactly what leads to wrong-headed and counterproductive drug laws, anti-abortion activism, anti-gay activism, anti-immigrant sentiments, and so on. "

if the government hadn't forced southern schools to integrate (When most of society was "for" segregation) where would we be today? There is a difference between social mores and human rights...

Petty vandalism being given jail time is an idiotic law in the first place independent of whether it's classified as a hate-crime or not. In that case you have an issue of the punishment being disproportionate to the crime. Not an issue of it being classified as a hate-crime.

its the hate crime which is a felony, not petty vandalism. that's why spraying swastikas on a synagogue will get you time while just spaying graffiti does not. so the problem is with hate crimes.

if the government hadn't forced southern schools to integrate (When most of society was "for" segregation) where would we be today? There is a difference between social mores and human rights

linzi: int this case, the govt had mandated segregation in the first place, so the government action to undue it was a proper undoing of excessive government. jim crow was the law of the land, laws actively pushed and supported by the democratic party, i would like to gratuitously add.

yeah, Manju, my whole point was that people supported segregation but it was wrong, and a violation of human rights. I mean if society is "for" something, like killing (fill in the blank) or for creating systems of inequality, then whole is that ok. And who is "society" that is "for" it? If you are a minority who is a victim of this belief of society, you don't have anyway to protect yourself against human rights violations, unless the government says "I know you guys all LOVE disciminating against people based on (fill in the blank), but you know what, it's still wrong"

"then whole is that ok. " delete that please... I don't know what I was typing there... rushing off to work!

its the hate crime which is a felony, not petty vandalism. that's why spraying swastikas on a synagogue will get you time while just spaying graffiti does not. so the problem is with hate crimes.

actively pushed and supported by the democratic party, i would like to gratuitously add.

Linzi, I did specify that I think laws should generally be geared towards "promoting the general welfare and protecting people's basic liberties. Not on trying to make people "better." That kind of thinking inevitably leads to having the government coopted by moralizing busy-bodies."

Segregation kind of cuts directly against that what with its active denial of certain people's liberties and its focus on diminishing the welfare of a segment of society.

So hate as much as you like. And spew forth your hate as much as you like. The First Amendment still protects you. Just don't act on it or incite others to act on it.

Subodh: I concede that hate crime laws are most likely constitutional since they mimic laws that punish for intent, like premeditation. But these laws are moving closer to punishing someone for the content of their thought--for their values and belifs--in contrst to the mere fact they thought, like in prededitation. Its a blurry line no doubt, which is why you're using a backwards slippery slope ("if we punish for that why not this") wheras I'm using a regular slippery slope ("next they'll come for the commies") but at some point the line may be crossed. the pace u case and some others are getting there.

plus i wouldn't want to rest on the first amendment. if it weren't for the likes of scalia in the boy scouts case for example, a fundamental right would've been lost.thats why the context of macleans, falluci, the UN human rights council, etc is important...I don't want these asshats to get even a foot in the door.

"next they'll come for the commies"

(SEE!? That's a wink AND a tongue sticking out. Sarcasm folks. Sarcasm.)

Manju,

I followed your link as here, 1. Student found guilty of racial harassment for reading a book. and I found this gem therein

After months of stonewalling, the university withdrew the charge, thanks to pressure from the press, the American Civil Liberties Union and a group called the Foundation for Individual Rights in Education, or FIRE.

Wow, what's an unpatriotic commie loving organization like the American Civil Liberties Union doing, protecting the freedom of speech etc.,?

...the govt had mandated segregation in the first place, so the government action to undue it was a proper undoing of excessive government. jim crow was the law of the land, laws actively pushed and supported by the democratic party, i would like to gratuitously add.

Oh yeah, a wing of the democratic party that first became dixiecrat and then moved over en masse to the republican party of today!

Wow, what's an unpatriotic commie loving organization like the American Civil Liberties Union doing, protecting the freedom of speech etc.,?

You forgot to mention FIRE and as I said, the reson theses leftiist haven't made more inroads is "because of coalition of right-wingers and civil libertarians." the aclu version of liberalism, as expressed in the skokie case, is just about right. that is not the liberalism represented by this law.

The whole notion of hate crimes legislation strikes me as thought crimes legislation. [blah blah blah ] But it's not illegal to have such thoughts

Mallu -- get edumacated.... (via wiki)

[quote ]
A murder, defined broadly, is an unlawful killing. Unlawful killing is probably the act most frequently targeted by the criminal law. In many jurisdictions, the crime of murder is divided into various gradations of severity, e.g., murder in the first degree, based on intent. Malice is a required element of murder. Manslaughter is a lesser variety of killing committed in the absence of malice, brought about by reasonable provocation, or diminished capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness.
[end quote]

"Intent" and "malice" are thoughts and Criminal Law takes into account the state of mind of the perpetrator. So this is not new.

Why we need this legislation ? - you may ask, so please keep reading.

[quote] (via wiki)
Ebens and Nitz were convicted in a county court for manslaughter by Wayne County Circuit Judge Charles Kaufman, after a plea bargain brought the charges down from second-degree murder. They served no jail time, were given three years probation, fined $3,000 and ordered to pay $780 in court costs.
[end quote]

On June 23, 1982 Ebens and Nitz crushed Vincent Chin's his skull in with a baseball bat.

It is necessary to categorize racial hate as something which is malicious enough to warrant tougher charges.

Oh yeah, a wing of the democratic party that first became dixiecrat and then moved over en masse to the republican party of today!

a little OT, but "en mase" is incorrect. clinton, who himself by executing a mentally impaired black man during the 1992 presidential election, as well as his sister souljah moment (all of which makes his shenanigans against our current president quite predictable), won much of the south; as did the former segregationist jimmy carter, a walking dogwhistle. furthermore, profs Richard Johnston and Byron Shafer have effectively demonstrated that "Working-class whites, however — and here’s the surprise — even those in areas with large black populations, stayed loyal to the Democrats. (This was true until the 90s, when the nation as a whole turned rightward in Congressional voting.)"

add to that the rise of evangelicals, the anti-abortion movement, and the fact that the dems drifted into the counter culture with a soft stance on communism, as well as the economic growth of the south, and you have the real reasons, along with republican dogwhistling, as to how the south was won.

that should be "clinton, who himself...practiced a little dogwhistleing...by"

yeah, Manju, my whole point was that people supported segregation but it was wrong, and a violation of human rights

i realize that, but its important to diffentiate between racism and govt-enforced racsim. many people segregate themselves in their private lives, but to have the governement do it is quite another thing.

the south/segregation thing may seem a little OT but its important to realize that the most egregious forms of american racism walked hand in hand with statism, the democratic party, and progressivism. slavery, segregation snd jim crow were obvious violations of constitutional rights. lynching was not just done by private individuals but by agents of the state. the KKK was, as left-wing professor eric foner put it, “a military force serving the interests of the Democratic Party,” designed to terrorize blacks and republicans. This racism was deeply entwined with progressive politics. For instance, labor and child welfare laws, Social Security and FDR’s New Deal were created as the result of a “gentleman’s agreement within the Democratic party” (as Tsahai Tafari puts it) to ignore segregation and the lynching. i could go on.

given this history, i think hate-crime advocates are a little too glib about constitutional rights and the power of the state. after all, hate speech laws aren't exactly out of the mainstream, especially outside of the US. I'm pretty sure religoius minorites are going to be targeted with some of these very laws designed to protect them...think of the burka/hijab laws in france framed as anti-misogyny legislation. i believe in Germany the koran itself has been targeted as hate speech.

but even here in the US we have to worry about that even in regards to just hate crimes (as opposed to speech). Dr A, although he's probably throwing up at the thought of me using him , makes a point everyone neglected. the people who are going to be targeted for prosecution will most likely come from marginalized groups themselves, either because (as probably dr A belives) that's who the state unfairly targets or because they commit more of these crimes, or a combination of the two. worth considering.

YF, not entirely consistent, from my worldview:

Laws should be enacted with a focus on promoting the general welfare and protecting people's basic liberties. Not on trying to make people "better." That kind of thinking inevitably leads to having the government coopted by moralizing busy-bodies.

and

One would think that crimes committed specifically with an eye towards overthrowing the social order would be more harshly than a crime committed without that in mind.

They're trying to destroy and reshape society in their own image for God's sake.

I think where we would disagree beyond where our basic sympathies lie is whether the idea of 'general welfare' has any meaningful content once you enter the microlevel and as well whether various forms of racism or homophobia can constitute an ideology just as much as anti-statism.

Then there is a separate question of the degree to which affiliation with a social force that is destructive of stability (e.g. is a mindset enough? do you have to have an explicit ideology? where does freedom of thought come in? freedom of association?)

but then, I am a moralizing busy body :)

But these laws are moving closer to punishing someone for the content of their thought--for their values and belifs--in contrst to the mere fact they thought, like in prededitation.

If you look at the history of the United States and the way that government power has been used in the United States, from the Alien and Sedition Acts, onwards, through allowing private guards to shoot trade unionists through the civil rights era through the "material support" laws after 9-11, you will see that underneath the concern for freedom of thought, freedom of speech, freedom of association, etc., there has always been a specific politics which regulates what is allowable speech and what is not, beyond general 'common sense' standards like crying 'fire' in a crowded theater. in this case, it is social cohesion and state action against criminals who undermine it if you're optimistic. If you're more cynical, it's also a trend that divides libertarians from people concerned with protecting disempowered social groups, thereby making it impossible to develop a social democratic liberatarianism - ultimately the best case scenario for anti-racists, anti-sexists, anti-homophobes, and 'general welfare.'

i realize that, but its important to diffentiate between racism and govt-enforced racsim. many people segregate themselves in their private lives, but to have the governement do it is quite another thing.

Why is it different? I never understand this about libertarians. If its opposition to state power and the rights of individuals you're concerned with, why reinforce the idea that the state has a special place. Just treat it like any other institution or set of institutions in analysing it. otherwise, you just reinforce its mythology.

I never understand this about libertarians. If its opposition to state power and the rights of individuals you're concerned with, why reinforce the idea that the state has a special place. Just treat it like any other institution or set of institutions in analysing it. otherwise, you just reinforce its mythology.

critical delta -- the state is legally allowed to initiate force in a way that no other institution can. It's the distinction from which all other state vs. non-state org differences spring forth.

critical delta -- the state is legally allowed to initiate force in a way that no other institution can. It's the distinction from which all other state vs. non-state org differences spring forth.

You realise this is an entirely circular argument? It has very little to do with a political, ethical, or moral analysis, as opposed to a legal one. - see above re: segregation for an example of how something legal can be entirely wrong, unethical, discriminatory, violate individual rights, etc. you can probably name 5 other examples within a minute off the top of your head.

As such, question still stands in 41.

Sigh.

"Students and activists say that Chinese, Vietnamese, Cambodian, Pakistani and other Asian youth have been singled out, assaulted in cafeterias, hallways, on city streets, school buses and everywhere in between."

"Segregation kind of cuts directly against that what with its active denial of certain people's liberties and its focus on diminishing the welfare of a segment of society."

YogaFire, I am not sure of your point... are you saying hate crimes do NOT do that?

You realise this is an entirely circular argument? It has very little to do with a political, ethical, or moral analysis, as opposed to a legal one. - see above re: segregation for an example of how something legal can be entirely wrong, unethical, discriminatory, violate individual rights, etc. you can probably name 5 other examples within a minute off the top of your head.

to pick a diff example, the initiation on the use of force is the core delta b/t the salvation army santa claus ringing his bell & asking for a donation vs. the welfare dept (indirectly) sending the IRS to get $$ out of you. It's why your avg salvation army worker is likely far more dedicated than your avg GS-11 working in some lost cubicle at the Dept of HHS.

The broader issue illustrated here is the diff b/t the relative size of the civil society sphere vs govt. This is far from a circular issue and is the #1 thing that I think progressives always seem to miss -- just because something is "Good" (in an ethical, moral, etc. sense) rarely means it should be "statute".

just because something is "Good" (in an ethical, moral, etc. sense) rarely means it should be "statute".

and so... why have any laws at all?

The broader issue illustrated here is the diff b/t the relative size of the civil society sphere vs govt.

I would say the broader issue is the relative amount of power of civil society institutions and trends and state institutions and trends. In this sense, organisations, ethos, etc. in both spheres can have an impact on individuals, but libertarians in the United States, excepting left libertarians, frequently only pay attention to the role of power in the state sphere, which basically denies that any form of power besides legally formalised power exists. This is somewhat blinkered in my opinion. We all know that if your boss can fire you, he/she has power over you, that gender hierarchies and race hierarchies exist. So what gives? Society and corporations get a free pass from libertarians, just because they're not formally part of the government?

Anyway, I think this will go on endlessly and is not the central point of the conversation so I'll leave off in the paradigm clas here. :)

and so... why have any laws at all?

to maintain social stability in order that the ruling elites and their successors might benefit :O

YogaFire, I am not sure of your point... are you saying hate crimes do NOT do that?

Why is it different? I never understand this about libertarians. If its opposition to state power and the rights of individuals you're concerned with, why reinforce the idea that the state has a special place. Just treat it like any other institution or set of institutions in analysing it. otherwise, you just reinforce its mythology.

See, this is why I'm philosophically liberal and politically rather conservative (and neither of these bears any relationship to the terms used in modern American political discourse.)

[quote]to maintain social stability in order that the ruling elites and their successors might benefit :O

[/quote]
Right, because we've seen how wonderfully those downtrodden masses fare in lawless, unstable societies. Who wouldn't want to live in one of those veritable Marxist utopias? I'm saving up for a one-way ticket to Angola right now!

and so... why have any laws at all?

and so... why have any laws at all?

More formally, for libertarians, laws that enforce Negative Liberty are desirable and Positive Liberty less so. "Freedom from Crime" is a Negative Liberty concept while "Freedom from Hate Crime" arguably takes you into Positive Liberty space.

but libertarians in the United States, excepting left libertarians, frequently only pay attention to the role of power in the state sphere, which basically denies that any form of power besides legally formalised power exists.We all know that if your boss can fire you, he/she has power over you, that gender hierarchies and race hierarchies exist. So what gives? Society and corporations get a free pass from libertarians, just because they're not formally part of the government?

These are all far more fluid, easily adopted mechanisms for exercising individual power in the face of collective power than just about any state / political mechanism and these are pretty central concepts from libertarian thought. They fly under the radar of many progressives b/c they aren't things that require their own govt initiatives per se but are rather things individuals do by themselves or within other civil society organs.

I see this is basically turning into a libertarians vs. progressives argument, so since we are on the topic, can someone make spasht (clear) a few points for me?

Is it true libertarians don't think people should have to pay taxes? If so, how do they purpose infrastructure like roadways, water, sewage, etc are run?

On another note, the big argument here seems to be what is a law for human rights, and what is a law that forces a certain morality on people?

I think the problem is that a lot of people here are not acknowledging that it is not a black & white issue: human rights vs. forced set of beliefs

Having studied anthropology makes it clear that with all the varying cultural beliefs, religions, etc in this world, there is often a vast gray area between the two. For example, a big subject I have worked on in India: Is making universal education compulsory for all children (between ages 6-14, for example) protecting human rights (keeping kids in school, out of child labor, and giving them a chance to receive the knowledge and skills necessary in the world) or is it forcing a moral choice onto the families (school is good for kids, but having your children work is immoral)?

Now, for someone raised in the U.S., the idea of education as a "human right" is petty well accepted. But it is not the same worldwide, in many places, education can be seem, not as valuable, but as a waste of time (say, for example, if it doesn't result in a better job, but the educated person now refused to do manual labor, and hence ends up unemployed). In other cases, forcing children to go to school might for the family to take a hit in their income, making survival that much harder.

So really, in most cases, I think it is really hard to say where human rights begin and morality ends. To me, human rights becomes the most basic, but also most widely accepted norms of morality.

Now, for someone raised in the U.S., the idea of education as a "human right" is petty well accepted.

Where there are shades of gray are in things like political rights, civil rights, or entitlements that are really good to have and are arguably critical for maintaining a prosperous, just, and happy society. The reason these are gray is that while we would all love to have them, getting them imposes opportunity costs on people. As a result, we can still consider certain situations where it may be appropriate to do without them. Your example of exempting a kid from school if the family needs his labor to eat is an excellent one.
Since these rights a violable and subject to context, they're not fundamental human rights by definition. Education (in the sense of access to formal schooling) is one of these, as are other things that we generally like such as democracy, franchise, access to healthcare, and so on.

One broad quip describing the diff is that Libertarians support law that upholds "what is Right" (for ex., free speech) as opposed to "what is Good" (for ex., having an aversion to "Hate Speech").

Yoga Fire,

I think your comment (#53) illustrates perfectly well how confusing it is to define human rights.

For example, when you say that without human rights someone cannot be truly "human", it reminds me of a viewpoint I have heard expressed many times in India, but most poignantly by one of my students in Bihar (the first in her family to be literate) who told me "Getting an education allowed me to become a human being". Throughout most of my research with poor and street children in India, this idea of education making one human has come up again and again.

The one of a child working versus going to school is especially gray because on one hand a child might be forced against his/her well to work in unsafe conditions for a pittance (forced either by economic reasons, or by the family itself). It is pretty much accepted worldwide that children have not developed the ability to be responsible for themselves yet, there are often extra and special laws to help protect the best interests of a child and protect them from harm.

In the case of child labor vs. school, we will find that children who go to school benefit from greater access to knowledge in the world (from just being able to read your bank account, vote, or sign your name, all the way up to utilizing the internet or books to further access information). If a child is sent to be a laborer, they may be able to aid the family, but at the same time they are most often exposed to unsafe working conditions and unsavoury adults who may wish them harm. Additionally, since they are children, they are often paid a pittance, way less than an adult would be for the same work. Child involved in child labor are often too ill by the time they are adults (Born Unfree: Child Labour, Education, and the State in India: An Omnibus: The Child and the State in India, Born to Work, and Child Rights in India 2007) to work anymore, and then continue the cycle.

If children were not working, companies would often be forced to hire more adults, at a higher wage. This would give poorer families a higher income while also freeing up children to get an education.

Healthcare has many similiar gray areas. In many poor countries like Haiti (Pathologies of Power by Paul Farmer) TB is a huge issue. Since people do not have any "right" to access the medicine for TB, they continue to work, pass the disease on to others, and eventually die of the disease. The weaker and sicker the get, the less they can work, the less they can eat, and hence get weaker still. But often these same people are painted as "noncompliant" because they do not take there medicine regularly, eat the food the doctor told them to, or to rest as was prescribed, because of course, they cannot afford to do any of these things as a poor person who relies on their day-to-day wages to barely keep them afloat.

So, by making healthcare a right, you would be preventing a disease like TB to spread further (and cost further money and lives) while also helping those sick heal and be able to be productive members of society again.

I think allowing people to suffer and slowly starve and die of a preventable disease is treating them as less than human, na?

I think your comment (#53) illustrates perfectly well how confusing it is to define human rights.

i agree. people should really read sen's democracy and freedom before bloviating on this topic. you might choose to disagree with what he says, but at least it makes a serious critique that needs to be disputed.

miss, who is the "you" and the "he" in your comment, I'm a bit confused as to who you are talking to.

Throughout most of my research with poor and street children in India, this idea of education making one human has come up again and again.

Additionally, since they are children, they are often paid a pittance, way less than an adult would be for the same work.

Since people do not have any "right" to access the medicine for TB. . .I think allowing people to suffer and slowly starve and die of a preventable disease is treating them as less than human, na?

Who cares?

I really dont see the slippery slope here. It's not like you can say "They want to make the case that terrorizing a whole group of people is worse is than hating one person. What next? Putting me in jail for reading"

Nothing negative from this. No slippery slope.

How many times do we have to see examples of people gathering up a race and SUCCESSFULLY persuading that race of people to wage war on the other group before we realize that it is dangerous on a bigger scale.

you = "one"
he = sen

difficult prose, but a must-read

comment is targeted at those who talk about violable human rights and otherwise, without thinking the issue through.

comment is targeted at those who talk about violable human rights and otherwise, without thinking the issue through.

Let me put it another way. To say that access to state of the art medication is a human right is to declare that people living before that medication was invented weren't really living a recognizably human life. Does anybody really believe that?

Sounds like a great doc. How can I get ahold of a copy? Also, for more on the subject see the doc "Who Killed Vincent Chen?", 1987 by REnee Tajima-Pena and Christine Choy url: http://movies.nytimes.com/movie/163027/Who-Killed-Vincent-Chin-/details

To say that access to state of the art medication is a human right is to declare that people living before that medication was invented weren't really living a recognizably human life. Does anybody really believe that?

huh??? to say that preventing rape and violence is a human right is to declare that people living before the invention of police forces weren't living a recognizably human life?

huh??? to say that preventing rape and violence is a human right is to declare that people living before the invention of police forces weren't living a recognizably human life?

miss,

There are diseases for which there are no cure. Some of them, if we had resources, could presumably be cured, but medical research is costly in both time and money. Many of these as-of-yet uncured diseases are rare, and suffered by only a small percentage of the population. If we do not allocate resources to cure them, are we denying people their right to health care? These are the very thorny issues that considering health care a "right" brings to the fore.

I am all for health care. I just don't know that it can be a "right".

Some of you think to much.

Its called "paralysis by analysis"

According to some of you, if it doesnt take care of every hypothetical problem you can throw at it then you should do it.

According to some of you, if it doesnt take care of every hypothetical problem you can throw at it then you should do it.

The point has been that you should do it, but you don't need to cast every position you support in the starkest possible terms. You can say that universal public education is a good thing worth doing on its own merits without resorting to borderline Orwellian tactics by trying to frame it as a human rights issue to score a cheap rhetorical point.

Moreover, paralysis by analysis is the American way. The painstaking deliberation is what keeps us from leaping hastily into stupid quagmires. When you short-circuit that process with Orwellian rhetoric you end up tied down in some God forsaken dust-bowl for no good reason because you didn't bother to think things through.

There are diseases for which there are no cure. Some of them, if we had resources, could presumably be cured, but medical research is costly in both time and money. Many of these as-of-yet uncured diseases are rare, and suffered by only a small percentage of the population. If we do not allocate resources to cure them, are we denying people their right to health care? These are the very thorny issues that considering health care a "right" brings to the fore.

I am all for health care. I just don't know that it can be a "right".

there are neighborhoods we cannot protect. sure, if we had enough police, everybody could presumably be protected but staffing up police to that level is costly both in time and money.

i am all for security. i just dont know that it can be a "right".

miss,

Even in policing, we allocate them as best as possible. All resources are finite, and we must be careful in how we use them-- there are always tradeoffs.

There are not enough MRIs for everyone who needs a full body scan. There aren't enough organs for all those who need transplants. There are not enough helicopters to airlift everyone who needs immediate care. There aren't enough doctors to see every patient in a timely manner.

If we consider health care a right, then we have to consider whether or not we treat a finite good's allocation as an abrogation of a right.

Even in policing, we allocate them as best as possible. All resources are finite, and we must be careful in how we use them-- there are always tradeoffs.

so do citizens have a right to security or not?

Moreover, paralysis by analysis is the American way. The painstaking deliberation is what keeps us from leaping hastily into stupid quagmires.

100,000 dead Iraqis might disagree with you.

An inherent right? Only from the state. I do not believe, however, that you have an inherent right to be safe from those around you. It is a necessary service that the government should provide, because it is one of the hallmarks of a functioning society, but it is not a "right" in the same way that a fair trial is a right.

Actually Yoga, I think you might be being sarcastic. Sarcastic is hard to read on these boards.

so do citizens have a right to security or not?

In the liberal/libertarion/american framework, citizens do not have the right to security, but security (national defense, etc) is a legitimate function of government since government has a monopoly on force. So things like defense, police forces, etc are subjected to democratic rule while rights, freedom of speech, etc, are not.

An inherent right? Only from the state. I do not believe, however, that you have an inherent right to be safe from those around you. It is a necessary service that the government should provide, because it is one of the hallmarks of a functioning society, but it is not a "right" in the same way that a fair trial is a right.

hmm, even enforcement of negative rights is not a responsibility of the state then... this is why i really prefer anarchy, it's just clean and devoid of these pesky arbitrary lines.

miss,

Who said I'm for anarchy? I'm all for having police and medicine. I just don't think that we can ascribe the term "right" to them. There's a big distinction there. I also believe that ascribing "rights" to things that are essentially finite goods to be allocated throughout society brings up many questions.

A good example I often use when it comes to "rights overreach" is Japan. In Japan, you have the right AND obligation to a job. But how do we enforce one's right to a job? Is the state failing if there's a recession and someone loses his job? Similarly, because the individual is "obligated," do we coerce him to work if he's willingly unemployed?

Enumerating rights is a necessary feature of a functioning constitution, but if you enumerate rights that cannot be guaranteed in any meaningful way, it creates credibility issues.

I remember seeing this movie last year at a screening in Connecticut, and I saw the sepaimutiny site and thats when I first checked you folks out!!

Enumerating rights is a necessary feature of a functioning constitution, but if you enumerate rights that cannot be guaranteed in any meaningful way

so there's pretty much no right that can be guaranteed, why bother?

so there's pretty much no right that can be guaranteed, why bother?

the rights you see enumerated in the bill of rights are guaranteed. they're restrictions on govt power. so if the govt violates these rights,like say they establish an official religion or censor your blog or take your property without compensation., you have recourse in the courts.

the constitution also has enumerated powers, like say a national defense. these are not rights but are enumerated as specific government powers since they serve to protect the freedoms citizens enjoy in a liberal regime...freedom form physical coercing. but there's no guarantee that they government will succeed at the affectioned power. the citizens may choose to underfund the military and they can lose the war.

So, I'm curious, YogaFire, what exactly you DO ascribe to be a human right?

Here are the UN Human Rights... agreement anywhere?

http://www.un.org/en/documents/udhr/

A couple of interesting ones:

"Article 25.

* (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
* (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

^ Top
Article 26.

* (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
* (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
* (3) Parents have a prior right to choose the kind of education that shall be given to their children." (http://www.un.org/en/documents/udhr/)

LinZi,
Those aren't "interesting" conceptions of human rights, they're silly ones. Every nation in South Asia is in violation of Article 25(1); the US and Canada are in violation of Article 26(1) (because of, if you're on the left, "legacy" admissions, and if you're on the right, "affirmative action"). Defining human rights such that everyone is in violation is a sure-fire way of making sure nobody pays attention to your definition. Such is the reality, and indeed inevitable fate, of the UN's definition.

LinZi,
I would commend you to the Stanford Encylopedia of Philosophy if you want to develop a more plausible conception of human rights than is found in the (ignored) UN documents. Here is a nice, and relevant, excerpt:

Not every question of social justice or wise governance is a human rights issue. For example, a country could have too much income inequality, inadequate provision for higher education, or no national parks without violating any human rights. Deciding which norms should be counted as human rights is a matter of some difficulty. And there is continuing pressure to expand lists of human rights to include new areas. Many political movements would like to see their main concerns categorized as matters of human rights, since this would publicize, promote, and legitimate their concerns at the international level. A possible result of this is "human rights inflation," the devaluation of human rights caused by producing too much bad human rights currency. . . . One way to avoid rights inflation is to . . . insist[] that human rights only deal with extremely important goods, protections, and freedoms. A supplementary approach is to impose several justificatory tests for specific human rights.

In deciding which specific rights are human rights it is possible to make either too little or too much of international documents such as the Universal Declaration . . . . [O]ne makes too much of them by presuming that those documents tell us everything we need to know about human rights. This approach involves a kind of fundamentalism: it holds that if a right is on the official lists of human rights that settles its status as a human right ("If it's in the book that's all I need to know.") But the process of listing human rights in the United Nations and elsewhere was a political process with plenty of imperfections. There is little reason to take international diplomats as the most authoritative guides to which human rights there are. Further, even if a treaty could settle the issue of whether a certain right is a human right within international law, such a treaty cannot settle its weight. It may claim that the right is supported by weighty considerations, but it cannot make this so. If an international treaty enacted a right to visit national parks without charge as a human right, the ratification of that treaty would make free access to national parks a "human right" within international law. But it would not be able to make us believe that the right to visit national parks without charge was sufficiently important to be a real human right.

"Those aren't "interesting" conceptions of human rights, they're silly ones. " When I said "interesting" I meant in terms to salience to the conversation at hand.

Am I missing something here....?

I am still perplexed as to what YogaFire, ArchanaP, (and others) think are human rights. My whole point was that they are not black & white, but rather confusing to decide. Many people responded that they are NOT confusing, but then proceeding to only say "safety from hate crimes, education, and health care are NOT human rights" but failed to mention, what, in their opinions, are human rights...?

If you think that "life liberty and the pursuit of happiness" are clear and not subject to varied interpretation, I would be rather stunned. So where is your clear idea and definition of human rights, anyways?

I heartily disagree with this one - power in the civil sphere is a *core element* of libertarian thought & is "governed" by economics and Free Association - for ex., Google is a far more effective "check" on MSFT's power than the Dept of Justice. Amazon will ultimately be the greatest "check" on Wal-Mart. And employees leaving for rival firms and/or starting up their own firms is the ultimate check against the employer. Heck, Gary Becker's Nobel Prize in Econ was primarily driven by how these mechanisms directly attack & break down "gender hierarchies and race hierarchies" and he did it with a very libertarian-esque, free market flair.

Naive. You may disagree, even heartily.

Libertarians for the most part are simply the younger (by age or otherwise) band among the larger group of reactionaries. Reactionaries seek to maintain order, thence, privilege, inheritance, and an assured and predictable future. This is effected by laying down laws for the rest of society, excepting their own. While there are certainly some genuine social conservatives among reactionaries, they aren't any more out of type than it is find a traditionalist among the liberals. Among other goals, reactionaries also seek to break down the walls that keep economic power out of the arena of politics. One way is by the aggressive espousal of republicanism, which is as far as the reactionary is willing to concede to a political system based on popular franchise. Since the truths are eternal what need for a political system at all? If anything you simply need the best leader to maintain what is true and eternal. Libertarianism serves this end admirably well in providing a philosophical veneer to the proclivities of their young.

The only centers of power that can be trusted with our franchise are the ones we create out of our vote and taxes, i.e., the arms of the state, that we can manipulate at a minimal cost to ourselves, or at least manipulate despite a disparity in resources. The arms of the state, too, are the only ones that can be held to account for moral failings, other power centers are amoral.

what, in their opinions, are human rights...?

It's not a matter of mere opinion, it's a matter of reason, with right and wrong answers. Freedom of thought would be an example of a rather uncontroversial human right. But please read the Stanford Encylopedia before asking more basic questions.

ArchanaP, your unfriendly attitude is not very well appreciated. You seem utterly blind to the fact that you are making a circular argument, yet you are mocking me for asking "basic questions", which you yourself cannot answer clearly.

You just sent me to a link with links to the "Universal Declaration of Human Rights" which supports the very statements you just called "silly" earlier!! How can you say that this document is "silly" while at the same time espousing it as part of your supposedly "basic" dictionary definition of human rights.

Not only that, but your link further espouses my viewpoint that Human rights and NOT black and white and easily definable by stating that:

"The philosophy of human rights addresses questions about the existence, content, nature, universality, justification, and legal status of human rights. The strong claims made on behalf of human rights (for example, that they are universal, or that they exist independently of legal enactment as justified moral norms) frequently provoke skeptical doubts and countering philosophical defences. Reflection on these doubts and the responses that can be made to them has become a sub-field of political and legal philosophy with a substantial literature."

So, if the definition is so "basic" and obvious, WHERE is it?

The fact that the Stanford Encyclopedia "mentions" the UN Declaration does not in any way suggest, to the careful reader, that it endorses its "use" as a serious source of human rights enumeration.

Like the product of most processes of reasoning, there are easy cases (e.g., free access to national parks is not a human right, freedom of thought is a human right) and hard cases. Defining a plausible list of human rights is, in fact, quite difficult (I, for one, never suggested that it's easy. What is easy is to say that the UN Declaration contains too many "human rights" that are not plausibly "really" human rights.) It's also not ultimately definitive of much, since (nearly all) rights are not absolute, and they can be overridden (e.g., freedom of movement might be justifiably curtailed during an emergency).

It's not a matter of mere opinion, it's a matter of reason, with right and wrong answers.

You know, well, that's like ..... your opinion, man.

Let me put it another way. To say that access to state of the art medication is a human right is to declare that people living before that medication was invented weren't really living a recognizably human life.

well, either that, or that 'human rights' are a concept that can't be rigidly defined, but whose content is always subject to politics, economics, deliberation, discussion, debate, but still have some core values / principles inherent in them (e.g. equality, freedom from violence, etc.) which are not, unfortunately, practicably absolute, but can still be held out as aspirational values. that doesn't make the assertion of a common humanity less worthwhile - it just contextualises it while it mounts the claim. the alternative is basically to explicitly say that some people are better than others and rightfully so - how does that work out?

the rights you see enumerated in the bill of rights are guaranteed. they're restrictions on govt power. so if the govt violates these rights,like say they establish an official religion or censor your blog or take your property without compensation., you have recourse in the courts.

the constitution also has enumerated powers, like say a national defense. these are not rights but are enumerated as specific government powers since they serve to protect the freedoms citizens enjoy in a liberal regime...freedom form physical coercing. but there's no guarantee that they government will succeed at the affectioned power. the citizens may choose to underfund the military and they can lose the war.

repeat after me: it's just a piece of paper. what gives substance and meaning to politics is what people want. if they want to stick to a piece of paper from 200 years ago, that's they're prerogative, but they should be given a choice in the matter by articulating exactly that it is a piece of paper (mostly written by slaveholders and their allies at a time when direct election of most officials was frowned upon and land was considered a reasonable criteria for allowing votes).

yeah, its content has changed over the years in practice and at times textually (tot he point where you might argue there's a separate constitution after 1865), but it remains, at the end of the day, just a piece of paper. not really something i want deciding major policy issues much less what my attitude towards them should be. :)

I think everyone should get targeted by racists, sexists, whatever-ists at least once. t shouldnt continue forever of course. It builds character. What a bunch of boring people we would all be otherwise...

repeat after me: it's just a piece of paper. what gives substance and meaning to politics is what people want.

Doc Amnon, ...repeat after me: it's just a piece of paper. what gives substance and meaning to politics is what people want. if they want to stick to a piece of paper from 200 years ago, that's they're prerogative,

To all originalists and Scalia fans, here's an antidote from the greatest US Supreme Court Justice of our time, Thurgood Marshall. In 1987, on the occasion of the Bicentennial of the Constitution, Marshall, chose to stay away from a gala and his fellow Js at Philly, and instead spoke to a group of patent attorneys and agents in Hawaii. The speech cannot be summarised, it is so dense. Still a few lines may be said to capture some of the spirit of what he has to say,

The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the "more perfect Union" it is said we now enjoy...
I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever "fixed" at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite "The Constitution," they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago...
For a sense of the evolving nature of the Constitution we need look no further than the first three words of the document's preamble: 'We the People." When the Founding Fathers used this phrase in 1787, they did not have in mind the majority of America's citizens...
These omissions were intentional...
While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws...
What is striking is the role legal principles have played throughout America's history in determining the condition of Negroes. They were enslaved by law, emancipated by law, disenfranchised and segregated by law; and, finally, they have begun to win equality by law. Along the way, new constitutional principles have emerged to meet the challenges of a changing society. The progress has been dramatic, and it will continue...
We the People" no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of "liberty," "justice," and "equality," and who strived to better them...
We will see that the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making, and a life embodying much good fortune that was not...
Thus, in this bicentennial year, we may not all participate in the festivities with flagwaving fervor. Some may more quietly commemorate the suffering, struggle, and sacrifice that has triumphed over much of what was wrong with the original document, and observe the anniversary with hopes not realized and promises not fulfilled. I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.

To all those who question legislation or judgments on the grounds that they create new rights, I suggest a reading of the Ninth Amendment, which makes clear that the Bill of Rights only specifies what the federal government may not take away, and not in any way, lists the rights that the people enjoy. Of course the said amendment like everything else in the Constitution is a thicket, and it possible to question a judgment on the grounds that the Ninth Amendment restricts government action with respect to a right, but permits the denial of that right, if any, if that denial is based on certain listed powers of the government. I find this pretty messy, because it permits the majority to cook up laws thru mob rule (aka referendums) and trump any Ninth based challenges. But then since these referendums happen in the states only, each with its own maze-like constitution, applying the Ninth to a state becomes entirely another challenge. For those who may still insist that new rights may not be created, the gun lobby has tried to use the Ninth to create "new rights" for itself, over and above those it deems flow from the Second!

Mods, bear with me for the long quote from Marshall J. He's awesome!

What if people "what people want" is for their government to adhere to the rules set forth by that "piece of paper?"

Then that's fine. In many ways, that's the case now. However, both legally and in terms of political ethos, it's relevant to remember that the Constitution exists by virtue of the consent of the governed, not the other way around. Too often, you see arguments in which the last word is either "that's in the constitution" or "that's not in the constitution". We should always understand that that is not the last word, ever - even by the framework of the Constitution itself, which allows for calilng a Constitutional convention and thereby revisiting the entirety of the text.

I won't go too much further into this, but I do believe it's deeply damaging to political ethos to pretend that disputes between the piece of paper and what it means today on the one hand and what people want for their lives on the other hand are effectively resolved by always having to mount claims in the terms of the former. If people don't want guns, get rid of guns - if people want equal representation in the Senate, develop equal representation in the Senate - that the text runs counter to that should not be the end of an argument.

repeat after me: it's just a piece of paper. what gives substance and meaning to politics is what people want. if they want to stick to a piece of paper from 200 years ago, that's they're prerogative, but they should be given a choice in the matter by articulating exactly that it is a piece of paper (mostly written by slaveholders and their allies at a time when direct election of most officials was frowned upon and land was considered a reasonable criteria for allowing votes).

yeah, its content has changed over the years in practice and at times textually (tot he point where you might argue there's a separate constitution after 1865), but it remains, at the end of the day, just a piece of paper. not really something i want deciding major policy issues much less what my attitude towards them should be. :)

D r. A; I'm not sure what ur complaint is. On the one had its just a piece of paper. on other had you appear to be complaining that it prevents the people enacting policy they want, in which case its not just a piece of paper...but rather an effeictive barrier against the people using the governemt to do what they want, which is exactly what it was designed to do.

If people don't want guns, get rid of guns - if people want equal representation in the Senate, develop equal representation in the Senate - that the text runs counter to that should not be the end of an argument.

The reason we tend to defer to the Constitution unless we have a very strong interest in altering something is specifically so that the government doesn't get constantly pushed and pulled by the whims and fancies of a largely ignorant electorate that doesn't even really know what it really wants for itself. Having a Constitution acts as a stabilizing force. A foundation to work around instead of having to spend all our time arguing over process rather than actually getting things done.

Also keep in mind that the US is a state built around the constitution. Maybe you haven't taken the oath of citizenship, but when I took mine the oath was to support and defend the Constitution. Not the people, not the government, and not "the nation."

jyotsana:

there's a lot of debate as to what if any new rights the 9th amendment protects. it's been used to justify (though not by scotus) property rights, gun rights , abortion rights etc. but those are all classically defined rights, ie freedoms from government intervention. No serious constitutional scholar has argued that the 9th protects postive rights (not that you say it would) like those we see in the UN charter...like a right to an education or healthcare. such rights would expand government, not limit it, and just as importantly would take major policy decisions out of the hands of the people (since rights are presumably not subjected to vote)

i agree that the 9th amendment is a good argument against strict constructionism a la scalia, but its in no way an argument for positive rights since rights defined as such have no basis in the American constituional or classic liberal philosophy, in short, since they're simultaneously undemocratic and statist, they would therefore be a prescription for tyranny...and it is no concordance that many progressive police states justified their oppression by calling it a right.

The distinction between positive and negative rights (I will ignore the difference between rights liberties freedoms etc for now) is cosmetic. With a little sleight of hand the one can be restated in terms of the other. While conservative reactionaries like to claim that positive rights are about outcomes and not actions, there is a simplistic and regressive religious basis to the claim - that one's current state follows from a neglect of divinely conferred faculties, or falen state. It is irelevant where the rights are stated, whether in a Euro or UN charter. We take the best from everywhere. Americans are after all human. There is a history of opposing civil rights laws on the grounds that they seek to further positive rights - desegregation, housing laws, etc., were all opposed on similar grounds - as we are now talking about hate crime law. Other laws in the economic sphere on child labor, minimum wage, working hours, leave, etc., can all be attacked on positive rights grounds. But we have those laws and we are better off for them. The argument about restricting individual choices too is weak, as the exercise of every right, requires mutual consideration. The ginormous increase in human life expectancy over just the last 100 years, requires us to address healthcare in very new ways. We can choose not to drink or smoke, but we can't choose not to have pancreatic cancer, or not be born with Tay Sachs. Hence the discussion of health care as a right.

With a little sleight of hand the one can be restated in terms of the other.

Hence the discussion of health care as a right.

It's really about setting priorities. When we talk about human rights these are supposed to be the most fundamental liberties afforded to people. It's based, in part, on Kant's categorical imperative. The idea is that people ought to be valued in and of themselves, not as means towards some other end. If a government is systematically violating individual human rights then the people are being used as a means to the aggrandizement of the tyrant.
This is different from positive liberties like education and healthcare because, like illiberal liberal said upthread, the ability to provide those is constrained by the availability of resources. Resultantly, they're not human rights even if we decide they're important enough that the government ought to make them available to us.

The attempt to reclassify any and every entitlement as a "fundamental right," however, just strikes me as a lame attempt to load the language against those who disagree. I say this as a guy who supports universal healthcare and thinks the federal government should take a bigger role in setting standards for education, but I would like it if we could argue for these things honestly on the basis of their merits to society. Dragging rights discourse into social-welfare policy just frames the questions in such a way that you get to dismiss anyone who disagrees with you as evil without having to actually consider what their concerns are.

Hence the discussion of health care as a right.

only, we're not discussing it as a right, but rather as regular law. if you haven't noticed, people are voting on healthcare reform as part of the democratic process. ergo, its not a right. nor is there any constitutional amendment being presented.

ditto for minimum wage, desegregation, housing laws, of which you reference. you are right that people have used the concept of negative rights to argue against these laws, and the existence of the 9th amendment--since its plain meaning indicates further restrictions on govt that specifically enumerated in the bill of rights--bolsters their case; but to say the 9th bolsters the case for healthcare as a right is completely ahistoric and has no basis in law. its Orwellian doublespeak: an amendment that restricts government actually expands its powers.

nothing in marshalls writings indicate otherwise. you might think it gives us you an opening to introduce positive rights but that's about as relevant as me thinking freedom of press means i must be supplied with a printing press paid for by taxpayers.

D r. A; I'm not sure what ur complaint is.

The elevation of the constitution and its surrounding mythologies over and above efforts to get people to consider their present day interests which is expressed in the reliance on exegesis of the constitution as a tool for determining what law is/should be.

How are you going to go about determining what "people want?" Which people's opinions are you going to go with? 50%+1 good enough for you? Because it's not something I'd be terribly happy with.

Well this is exactly the kind of discussion that I think is more relevant than deciding things on the basis of parsing mid 20th century interpretations of 18th century or 19th century text :) I'd say that evaluating structure a) will never completely abandon the aspects of the structure that existed before (e.g. compare neoliberal Russia to Soviet Union to Czarist russia) b) is therefore really important to think about - because if you DON'T and work towards something different gradually, you end up with exactly the same thing you started with.

The reason we tend to defer to the Constitution unless we have a very strong interest in altering something is specifically so that the government doesn't get constantly pushed and pulled by the whims and fancies of a largely ignorant electorate that doesn't even really know what it really wants for itself. Having a Constitution acts as a stabilizing force. A foundation to work around instead of having to spend all our time arguing over process rather than actually getting things done.

You say chicken. I say egg. I think people defer to argument by Constitution because they are brought up and exist in a society in which they are convinced to always defer to the Constitution.

Also keep in mind that the US is a state built around the constitution.

Description is not the same thing as a compelling reason. The U.S. was a state built around slavery, but it's good that we got rid of that, right? There are an enormous number of negative changes that have happened too - e.g. each successive technology has givent he government more power than it has before. However, I think currently in the last 60 years the United States is trying to govern an enormous bureaucracy and control large swathes of the world, and its political infrastructure hasn't kept up --> imperial presidency and destruction of the balance of powers. Unless you can at least consider coming up with something different or better, the political technologies won't adapt to what is there, and you'll end up with dysfunction (similar argument to how neoclassical economists discuss market failures because of compounding interference with an organic trend).

Where this all ties into hate crimes and why the discussion emerged, I think, is that rather than discussing issues like hate crimes in terms of legal concepts and mythologies that are derived from American political culture, it would be good to consider what the tangible benefits are and take an empirical approach to it. Same with health care. Same with most other things, i would say.

The U.S. was a state built around slavery

I think, is that rather than discussing issues like hate crimes in terms of legal concepts and mythologies that are derived from American political culture, it would be good to consider what the tangible benefits are and take an empirical approach to it.

The elevation of the constitution and its surrounding mythologies over and above efforts to get people to consider their present day interests which is expressed in the reliance on exegesis of the constitution as a tool for determining what law is/should be

I don't see that happening here. No one, not even I, have argued that hate crime laws are unconstitutional full stop. rather they violate the spirit of the constitution by threading very close to thought crimes. thought crimes are wrong not because they're unconstitutional, though they are, but because they represent a dangerous empowerment of the state over individuals. though i love the first amendment, i haven't deferred to the constitution, given that i don't think hate crime laws as written are unconstitutional, as much as i've made a case based actual abuses enabled by hate crime law logic: political correctness on campus, hate speech laws in europe and france (and the subsequent targeting of marginalized groups for prosecution) and the UN human rights commission, which represents some of the more repressive police states in the world while simultaneously pushing for hate speech laws. there's a reason repressive regimes favor hate speech laws and positive rights. after all, the cuban people have the right to healthcare but Cubans also live in a de facto police state. the pont is, the logic that gave us negative rights is still relevant today and still under fire by existing and would be dictators.

The U.S. was a state built around slavery, but it's good that we got rid of that, right?

and you will notice that many of the arguments for abolition and later getting rid of jim crow "deferred" to the constitution, despite the fact that that very doc insistionalized slavery. that's because slavery was in contradiction with the logic of liberal democracy, of negative rights, that's why king could refer to the very document that enslaved his people as " magnificent words of the Constitution."

its those principles that we're still arguing about today in regards to hate crime laws.

Um. .. no not really. Slavery existed, but it wasn't what the state was built around.

Okay, you tell me what the provision about allowing the slave trade until 1808, states rights, the 3/5 compromise, and other measures to protect Southern sectional interests were about. If your point it wasn't JUST built around slavery (it's probably more accurate to say it was broadly built around preserving and expanding the power of the existing social order), then I agree, but slavery was part and parcel of the (sectional) deal, and a deal it was. Until it unraveled.

The insistence on empiricism for everything is the reason we focus obsessively on GDP to the exclusion of all those other non-measurable standards of well-being.

You're mixing up empiricism and quantitative approaches. Something can be more accurate than something else without being quantifiable (e.g. one of our views on American history is more accurate than the other).

No one, not even I, have argued that hate crime laws are unconstitutional full stop. rather they violate the spirit of the constitution by threading very close to thought crimes. thought crimes are wrong not because they're unconstitutional, though they are, but because they represent a dangerous empowerment of the state over individuals. though i love the first amendment, i haven't deferred to the constitution, given that i don't think hate crime laws as written are unconstitutional, as much as i've made a case based actual abuses enabled by hate crime law logic: political correctness on campus, hate speech laws in europe and france (and the subsequent targeting of marginalized groups for prosecution) and the UN human rights commission, which represents some of the more repressive police states in the world while simultaneously pushing for hate speech laws.

But you ARE deferring to the Constitution. You feel compelled to critique hate crimes laws as violating the sprit of the constitution and say that they are not unconstitutional. You are using the Constitution as a metric to decide what is good and bad, should be legal or not legal - that is my point. This is a destructive practice for critical thinking, in my opinion. I agree, though, that you're not exclusively relying on it - but no one ever does, even when they say they are (which is the other part of what happens).

You are using the Constitution as a metric to decide what is good and bad, should be legal or not legal - that is my point.

the constitution isn't the metric--after all it once allowed for slavery, doesn't protect obscenity ,and allows the govt to seize your property and give it to a casino--but rather a philosophy of classical liberalism on which the constitution and this nation is based. the principles of democracy, freedom, and capitalism backed up with evidence that it works and that the lack thereof leads to tyranny...mixed with an awareness that the principles doesn't always work.

the principles of democracy, freedom, and capitalism backed up with evidence that it works and that the lack thereof leads to tyranny

Well now you're talking about substantive concepts which are exactly what I think should be debated - what we think about democracy, freedom, capitalism, and tyranny and their interrelationships - not what we think the Constitution says about these things. That was my sole point. Will leave that substantive debate for another day :)

but to say the 9th bolsters the case for healthcare as a right is completely ahistoric and has no basis in law. its Orwellian doublespeak: an amendment that restricts government actually expands its powers... nothing in marshalls writings indicate otherwise. you might think it gives us you an opening to introduce positive rights but that's about as relevant as me thinking freedom of press means i must be supplied with a printing press paid for by taxpayers.

The Ninth rules out any argument against a right, on the grounds that it is not listed. The distinction between positive and negative rights is again illusory, and yes Yoga, because all it takes is sleight of hand, they are all rights, whether we like it or not.

Marshall makes it clear that the law-constitutional or in the statute can be framed to accomplish anything, so as commentators in India are so fond of saying, the law is an ass If a right must be enjoyed positively, so be it. Rights are Rights. Maybe the government won't build a printing press for me, but I can have NPR and PBS. Much the same. The government funded the creation of the internet, governments created the WWW. The government ensures that the extent to which I can exercise my rights is independent of my wealth. As much as there is a case for restraining the government, there is a case for demanding that the government act to enable the exercise of a right. That's what a writ is about.

As for slavery, I suggest that everyone read Marshall J's speech in full. There can be no argument about the fact that slavery built this country. Slavery may be age old, but ours is the first Constitutional Republic that enforced slavery after grandiloquently declaring independence. All the more reason to let people remain where there were. Humanity gets better with progress. And all progress is ahistorical. Things change. That something wasn't done in the past, or has never been done, by itself, is no argument against it. The US Constitution is >200 years old. The idea of radical revisitation isn't even new. Jefferson suggested that >200 years ago.

slippery slope argument = i can't find anything wrong with what you say, but i don't like it, so i will raise bogeymen. dictatorship is a nice one.

The Ninth rules out any argument against a right, on the grounds that it is not listed. The distinction between positive and negative rights is again illusory,

the first sentence is a reasonable interpretation but the second one is off the deep end. You're entitled to make the argument, just as jerry falwell is entitled to argue that religious freedom means the govt must give him a church, but neither argument has any basis in caselaw or even in justice Marshall's writings. In reality, the 9th is one of the great arguments against excessive government, since its plain meaning appear to advocate a broad spectrum of negative rights. that why justices have been loath to use it since it could strike down many things that have become government functions, like much of the new deal. it in no way serves the purpose you think it does, except in your own head.

Marshall makes it clear that the law-constitutional or in the statute can be framed to accomplish anything

your overreacting by taking marshall's comments to ridiculous extremes. the man was an advocate of the living constitution, which pushes for for a broad list of negative rights, except when it comes to the right to property. roe v wade would be an example. there is nothing in his ruling or writings that would indicate he interpreted the constitution as requiring expanding govt power over the individual. if you think otherwise, please supply the quote.

the man dedicated his entire life to securing negative rights for blacks, first under the 14th amendment (equal protection) and then as a justice under criminal procedures...both of which deal with restricting govt power over the individual. i'm sure he had no problem in restricting economic freedom, either via civil rights laws or redistribution laws, but i've never read anything from him even hinting that such acts should be required by the constitution and out of the hands of voters. not a single sentence in the very piece you link refers to positive rights, its all about securing negative rights for blacks or securing equal protection under the law, which is directlyu related to negative rights (ie, you can't restict the negative right just to a certain group of people).

Maybe the government won't build a printing press for me, but I can have NPR and PBS. Much the same

its not the same at all. there's a critical difference between the government supplying you something and the government being required to supply you something because its your right. the latter is undemocratic and represents a conception of human rights that has, not just in theory but in reality, lead to brutal police states.

There can be no argument about the fact that slavery built this country

i agree. the history of racial discrimination in this country is intricately linked to government power, to the denial of basic rights to whole groups of people. indeed, the great crimes against huminty--slavery, Jim crow, holocaust, Ukrainian famine, cultural revolution---were mostly acts of government. thats why negative rights, ie restricting govt power, are so important.

thats why negative rights, ie restricting govt power, are so important.

negative rights is hardly limited to restricting govt power. there is a giant difference between holocaust, ukranian famine, cultural revolution and the positive right to education or minimal health care.

negative rights is hardly limited to restricting govt power. there is a giant difference between holocaust, ukranian famine, cultural revolution and the positive right to education or minimal health care.

negative rights, what you see in the bill of rights, are all related to restricting government. the problem with a right to healthcare, as opposed to just a law that mandating government supply healthcare, is that a right is something going beyond democratic control. its not up to vote.

there's reason regimes that have constricted positive rights have descended into Orwellian nightmares or at least police sates. its the anti-democratic nature of the concept mixed with the expansion of government. this descent isn't necessitated by such concepts, but there is a correlation.

regimes that have constricted

constructed.

the great crimes against huminty--slavery, Jim crow, holocaust, Ukrainian famine, cultural revolution---were mostly acts of government. thats why negative rights, ie restricting govt power, are so important.

really? there were no economic or social organisations participating in any of these events or others that might take a place in a more impartial list? no financial benefit for Northern corporations from slavery cotton? and what exactly was the positive right that contributed to slavery? the right to propernsty? the right to enslave people? I'm interested to hear your take on how the colonisation of South Asia had nothing to do with the profit motives of the joint stock company, the East India Company or how the escalation of the war of the indian state against its own people in the name of fighting Maoism is not at all linked to mining interests :)

I'm all for criticising state power. But I still failing to understand how, in the real world, people do not need protection from civil society actors and organisations. How am I better off if a group of people who are not in government, but have social, cultural, or economic power decide to attack me or worse yet provoke the government into attacking me because they DO have political power, but just not formal? Why is it better to be extorted by the mafia than taxed by the government (though likely both)? Why would I be happier as a dalit being beaten by a casteist mob rather than by the police (though likely both)? Why is it better to be shot by privately hired guards of a company than by national Guardspeople at Kent State or to be locked in a factory on fire with the emergency exits having been blocked than to be locked in my house during a fire and surrounded by a sieging army?

Or is it the government's job to protect me from all these things on the lefthand side of the list? But doesn't that then mean worker safety laws? Anti-extortion laws? Protection from violence during labor organising? A minimal recognition and accounting for casteism where it exists? And how would i possibly establish such claims in a language a liberal capitalist government could understand? perhaps in rights based language?

I would say yes to all this, but I think politics, like economics, social relations, and culture, is to a large enough extent reflective of power. As a result, is it not possible that both the holders of economic power and the holders of political power may not care very much about the welfare of the ordinary person, and that it is therefore up to that person and the social networks they can form to protect their 'liberties' 'rights' or whatever you want to call their best chance at meeting their varied needs in this world? That they have to confront a varied and tangled web of power on a daily basis and that they need trade Unions, NGos, their families, their friends, their loved ones and - yes - sometimes even a hand-holding-the-nose alliance with parts of the state.

Or doesn't your kind of libertarian believe that individuals should actually ever use their liberties to work with other individuals using their liberties to secure a better outcome collectively? :)

I'm all for criticising state power. But I still failing to understand how, in the real world, people do not need protection from civil society actors and organisations

libertarianism would certanly provide you with protection from civil society actors. liberalism starts w/ locke's state of nature, where life is, as hobbes put it, "nasty brutish and short" due to "a war of all agaisnt all", the fundamental raison d'etre for govt is to end this war, to protect the freedom of man, ie freedom from the initiation of force (and later fraud). man enters into a social contract, gives up his "right" to initiative force to the govt in return for a protection of his life, liberty , and property. So that takes care of your "mafia", "casteist mob, privately hired guards of a company", and "Protection from violence during labor organising" examples.

where rights come into play is to protect you from the government acting like the mob, or private actors using governement to initiate force. the "financial benefit for Northern corporations from slavery cotton" emerge from govt violating the principle of equal protection, a principle central to the libertarian system. ditto for "slavery", "colonialism", and "the use of the govt to protect mining interests." this is how MLK argued that Jim crow and slavery actually represented a contradiction in the creed. liberalism is designed to protect you from this.

what liberalism doesn't protect you from is JPMorgan not hiring jews. here's an example of an extremely powerful private actor--and Morgans power in building America cannot be underestimated--nonviolently committing a great evil that has tremendous societal repercussions. for much of American history, even going into the 1990's, a jew could not reach the pinnacle of wasp dominated American finance, not unlike quotas that existed in ivy league univerities.

but american anti-semitism was not nearly as intertwined with the state as her racism. given that, and the existence of tremendousl levels of economic freedom, the solution to wall st bigotry was found in the free market iteself. Morgan (as well as its wasp brethren like drexel, kidder, brown bros) was countered by goldman, lehman, sollie, bear...firms established in part because of the glass ceiling. they went on to dominate the street. in short, Jews were massively and systemically discriminated against in the U.S. but since the discrimination did not by in large involve government it did not result in massive economic disenfranchisement. here in the US they were not subjected to the government enabled violence of slavery, jim crow, or lynchings. since their communities were not as devastated, they were able to take advantage of the free markets, a great liberating force.

having said that, critics of libertarianism are right to point out the ahistoric nature of barry Goldwater's principled opposition to the civil rights act. you can't rob someone's house then say ok you won't do it again without giving their stuiff back, and thats essentially what america did to blacks. nonetheless, progressive's faith in govt is often equally ahistoric. libertarianism's warning that it is the giovt that must be checked most in order to prevent tyranny has borne itself out in history, even here in the US where the darkest parts of Americana history--slavery, jim crow, lynching, the KKK, all were intertwined with govt and the more progressive/statist political party.

great comments manju & dr. anonymous!

I deeply appreciate the civility and informative style of your args - a very welcome departure from some of the stuff that shows up here from time to time. Drop me a note (vinod@vinod.com) if you guys want me to toss your names in the hat for guest blogging....

Thanks for the response, Manju. It's interesting. As I have said before, I am not criticising critics of state power or libertarianism as a whole, nor am I espousing a 'progressive' viewpoint that doesn't understand the role of the state in creating or perpetuating social ills. I believe that individualism (here called 'libertarian') and statism (here called 'progressive') constitute a false opposition, each of which misses what the other holds. Marx was one of the foremost critics of the state, even though his analysis or (mis?)uses of his analysis have led to enormous amounts of statist violence. These two things need to be intertwined for some of the following reasons:

Left to their own devices, structures of power (whether you call them capitalism or something else) are self-interested. This is true whether its political in nature or whether its economic in nature or social in nature or cultural in nature. Depending on the government, which is simply a formal manifestation of some but not all of the aspects of this arrangement, to deal with these issues and simultaneously to accord it a legitimised unchecked monopoly on force is extremely dangerous. Essentially, once you have decided the state is the only legitimate actor that can use force, what do you have to resist the state with?

Secondly, given that the government (formalised state aspects of power) and agents in civil society and the market (informal of differently formalised nonstate or quasi state aspects of power) are intertwined with each other and influence each other's interests, I believe the view that you've posed takes an unrealistic view of the state, at least in the United States, as autonomous - both in the protections you are asking from it as well as the limitations you are trying to impose upon it. Essentially, you've given no way to deal with the conflict between state and nonstate forms of power that the ordinary person can turn to besides "the free market" which is illusory (more on that below).

Thirdly, the historical analysis of capitalism you've presented is flawed. Capitalism and industrialisation have been profoudnly linkeed with statism - even in the first industrialisation of Britain. It structurally demands it because as less well off countries attempt to 'catch up' their elites are forced to use the state to protect industry in their countries (to varying degrees of success) thereby fostering nationalism and competition. So your view is also leaving out (or rather implicitly accepting) the nation state framework, rather than 'the state' which is just a part of it.

Finally, the conception of force that you pose is off. It seems in your view that either there 'is' force or there 'isn't'. This is unrealistic to anyone who has experienced emotional abuse, has experienced the ramifications of being in debt, or has, as you have posited, experienced social discrimination. This gose back to the conception of power that is described above, and additionally, one might add to it the views of other advocates of individual rights like Chomsky or Foucault who haev understood that there are other mechanisms by which coercion, indoctrination, and other forms of securing 'consent' occur.

But on very simple terms, it is unclear to me how you are drawing the line between what is 'acceptable' use of power (force) in society and what is (unacceptable) except at the points where you underline your basic support for what is called but is not 'free market' capitalism (which would then take your analysis away from individualism towards a straight out defense of capitalism - which is fine, though it's not exactly uplifting or historically accurate).

It illustrates, again, a lack of empiricism. Concepts like 'violence', 'rights', 'hate' and other issues need to be contextualised, understood precisely in specific contexts, and looked at in terms of their effects in the broader framework of social, economic, and political power. This lack of attention to large swathes of detail is probably due to an overreliance on philosophical imaginations of a particular time and place and structures of power that created them (e.g. Locke or Hobbes or Rousseau, who are interesting to conflate :) )