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Fearless Philosophy For Free Minds: July 2005

Sunday, July 31, 2005

What Rights Do Children Have? Part IV of IV

Why I Wrote This Series

As I expected, a fair number of people responded to the first three parts of this four-part series: What Rights Do Children Have? So far I have argued that children are individuals, have a right to health & safety, and a right to education . This is by no means an exhaustive ‘bill of rights’ for children but more of a starting point to get the discussion of children’s rights rolling. Icarus had an excellent comment to the first part of the series that I think is worth repeating here:

I think a proper term for a parent would be a steward or gaurdian. They don't own the child, as the idea of owning another person, even if they do have limitations on their reasoning capacity, is perposterous…Once the stewards actions are no longer beneficial to the upbringing of the child but instead are detrimental then they have violated their responisbility…

Interesting topic, the realm of children and what rights they have is underdeveloped.

I think Icarus has it pretty well nailed down and I definitely agree that this topic is underdeveloped. This four-part series is my attempt to develop this topic a little further. I don’t by any means claim that I have the answers (though I think I have a few good suggestions) but merely raise the question: what rights do children have?

Some of you might be curious as to why I have decided to spend so much time writing on this subject in the first place. The answer has a lot to do with many of the injustices I have seen reported in the news: parents who refuse to give their children critical medical care, child neglect, and parents purposely denying their children access to an education.

The worst case of children being denied any rights whatsoever In the United States I have found to be the polygamist communities of Colorado City, Arizona and Hilldale, Utah. My wife wrote a research report about these communities which she posted here on March 31st. Some of the atrocities she reported sound like something one might expect in the Arab world. Here is some of what she found:

In an article published by the Associated Press in 2001, a 15-year-old girl had tried to flee her community in April of 2001. She had informed the authorities that her parents were going to force her into a polygamous marriage to a man already married several times over...The young girl begged the sheriff’s department to help her; instead they returned her to the compound. In a statement to the media, the sheriff explained that her parents had the right to decide how their daughter will live since she is a minor.


Many of the women are considered single mothers since a majority of the marriages are “celestial”. With this, the women can beat the system and apply for WIC, Medicaid, and food stamps in order to survive. Very few families can afford health insurance. There is no screening for genetic defects. The children in these communities are in very poor health. Herpes is a common disease among these young kids.

Perhaps the taxpayers’ rights are being violated too, you think?


Often times a young girl will be forced to marry her own relatives. In doing so, they have dozens of inbred children. Many [babies] die shortly after birth, or they miscarry.


These women are uneducated and live a life of isolation with very little knowledge of the outside world. Because of this, they are at a disadvantage when it comes to having the right skills to find a job.
Seems to me that the rights of these children have been violated, yet authorities are reluctant to do anything about it or have no legal grounds to remove the children from the polygamist communities. The children who do escape have a difficult time adjusting to society.

Polygamists are not the only ones who violate children’s rights. I recently watched a report on 20/20 where a girl in an Amish community was repeatedly raped by her own brother. The boy’s punishment? Being banned from church for a few Sundays and picking up a few extra chores; a punishment equivalent to being caught drinking alcohol. When the girl tried to bring her case before the local authorities outside the community, the judge decided to allow the Amish community to handle the matter internally. This is nothing more than another example of a religious group getting special treatment.

Where Do We Draw the Line? (Responding to Reader Comments)
Note: Spelling and punctuation is published as originally written. Some comments have been truncated […].

Mindwyrm wrote the following in response to my first post of the series:

One major problem with your assertion that a child is an individual is the fact that the child is not capable of living independently yet. I would say that if you require the intervention of another, merely to continue your existence, then you have lost a major portion of your individuality. When you factor in the idea that a child has yet to learn many of the behaviors or develop the personality that will allow them to be an individual then it gets even harder to lable children as true individuals. I'm not saying that parents can do anything they want to their children, but the parents are the ones with the responsibility to the child, not society at large.

I think the fact that a child cannot live independently is precisley the problem we are dealing with. I absolutley agree that a child does not have the same individual rights as an adult should. I’m not suggesting that society should be responsible for children (as Hillary Clinton would have us believe, “it takes a village”). What I am suggesting is that if parents are irresponsible and somehow violate a child’s rights, society should do something to protect the child from his or her parents or punish the parents in some reasonable way. Maybe this is a distinction without a difference but I don’t think so.

In part II, several people objected to my suggestion that children have a right to health & safety.

Mindwyrm said...

Health and safety are not rights for any individual, be it a child or an adult. Does the parent have an obligation upon them to protect the child? To a certain extent, yes. But it would be inane to say a child's right to safety had been violated cuz they skinned their knee learning to ride a bike. And getting the state involved is a bad idea when it comes to children in almost any situation…

As for health, no one has the right to health. You don't. I don't. The children don't either. Lets face it, is sounds really silly to say your rights have been trampled on by a cold virus, now doesn't it? Do the parents have an obligation to care for their child? Yes they do, but how they do so is up to them. The parents are responsible for that child until it's age of consent so how they execute their responsibility is their choice. The parent who abuses their child is is not living up to that responsiblity. A parent who refuses to take a child to the doctor due to religious reasons is doing so, but in a way you or I wouldn't agree with. The way they see it, modern medicine endagers the child's soul and that has a far higher importance than the body. do I agree with that? Absolutely not, but it is the parents call to make, not yours or mine and most definitely not the states.

Rymes with Right had this to say:

You realize, of course, that your position here effectively denies the right of a parent to raise a child within his/her relitious faith, and furthermore subjects the practice of religion by both parent and child to the regulation of the state. Based upon your arguments, i also suspect you would insist on the state being permitted to override the religious scruples of the minor child, even if said child had reached the age of reason. What's more, your argument makes the state the arbiter of "appropriate" medical care -- sort of like the case we had here in Texas, where stating a desire for a second opinion was grounds for child-snatching by CPS.

You have an incredible trust in the goodness and benevolence of government, and a clear desire to allow it to intervene in the lives of anyone with whom you disagree. Not only do i think someone should take away your Libertarian card, I think there needs to be an investigation (perhaps by the government which you want regulating s much of live?) as to how said Libertarian card was issued in the first place.

Adults might not have a right to healthcare but children absolutley do. Adults should be responsible for their own health. On the other hand, it would be unreasonable for anyone to ask a seven year-old to be responsible for his or her own healthcare. How would a seven year-old pay a doctor bill? Perhaps a paper route or sell lemonade in the front yard? If the child’s parents are not responsible, someone else nessisarily has to step in and help. I’m not talking about children skinning their kness or catching a cold; I am talking about that ‘certain extent’ that parents must make health care accessable to their children.

This notion that parents can withhold critical care to their children due to religious beliefs is absurd. What if a nonreligious person decided to withhold critical treatment such as an organ transplant or blood transfusion? Is that person entitled to excersise that same right? What if the parents are just cold hearted bastards who simply do not want to save the child’s life for whatever reason? The law cannot play favorites. Any parent who would deny the child such a life-saving surgery should be judged by a jury of his or her peers.

This has nothing to do with my trust or distrust in government but has everything to do with the fact that all too often, the child in question has no voice in the matter. Let’s suppose for a moment a child in this situation has reached the ‘age of reason’ (between 14 and 17) and wants the surgery or blood transfusion. Whose rights should prevail, the child’s or the parent’s? In any situation like this, I would have to say the child’s.

As to my Libertarian credentials? Do your own ‘investigation’ and read some of my past articles. Maybe I would be more accuratley described as an independent with mostly Libertarian leanings (though I am registered Libertarian on my voter ID card). The Libertarian Party nor any other party tells me what to believe, I have my own mind and I call it like I see it.

A.L.L. agreed with my position writing:

This isn't about skinned knees and colds. When a parent puts their religious beliefs ABOVE the safety and well being of their child, they are endangering their childs health. If the parent doesn't want to seek treatment for themselves, so be it, but don't make a child suffer. If that child were to die due to their negligence, why should they get to hide behind their religion, while some parent who just negligent gets sent to jail? 'Because its against my religion' is a an excuse, and should not be tolerated. Children do not have the voice to say, 'Hey, I would like to be treated with western medicine so I can have a chance to live instead of being wrapped in a blanket, pretend to be born again, and possibly suffocate'! Why should parents get to make that kind of decision for the child? Let me ask you this... If a child whose parents don't believe in medical science to cure, end up with a child who has cancer, you
don't think the state should step in to give that child a fighting chance? Because you know without proper treatment, that child would die. And in turn if that were to happen, those parents should be prosecuted and put in jail.

In part III, I received the most response. Most disagreed with my reasoning behind a child having a right to education. I’ll begin with part of Eric’s response:

Stephen, I would counter argue that the only rights that children have are the same as every other human, the inherent rights of life, liberty and property. And those are bounded by their ability to responsibly function within society.

Neither adults nor children have a "right" to healthcare, or education, for example. Those are privileges. One of the biggest problems in our society today is that we have decided that privileges should become legal entitlements and then extended that to make them mandated entitlements.

Let me respond here by using the life, liberty, and property framework. As to a child’s right to life, isn’t that what I am arguing when a child’s life hangs in the balance when a parent chooses to deny critical care to a child? I could also argue that a child’s right to health and safety falls directly under the child’s right to life. If I were to find an infant abandoned along the side of the road, does that child not have a right the health and safety? The state would likely take custody and would provide care using tax dollars. We cannot very well expect the infant child to care for him or herself can we? Now, we could hope that a reputable private organization would step in and care for the child until a good home was found for the child. Besides, don’t we the taxpayers pay for the wellbeing of prisoners? Shouldn’t a child be provided that same ‘privilege?’

Liberty. Liberty (Rights) is the very question I am posing. As we can see, the liberties of a child are very different from an adult. Whatever rights a child has can be at odds with the parent’s.

Property. I’m going to need some help with this one. I don’t understand how a child can actually possess, maintain, or transfer property. Maybe in some limited cases, but it seems like a parent would have some sort of ‘eminent domain’ over the children.

Rhymes With Right apparently believes that I ‘rhyme with wrong’ writing:

And so the obvious answer, to you, is the implementation of a state bureaucracy which will determine what each child shall know. The common mass of humanity shall be required to pay for said system of schools, but shall be denied a substantive voice in them lest they impose an agenda (other than yours) on the system of education. And at the top shall be a philosopher-king --let's call him the Education Czar -- who agrees with you in every respect, and who will therefore be unswayed by such irrelevant individuals as parents or taxpayers.

There is a name for such a statist system -- and it isn't Libertarianism or Objectivism. I'll let you decide whether it is Fascism or Communism.

Rhyme, you don’t think this bureaucracy doesn’t already exist? What I am advocating is teaching a child how to think not what to think; how to reason, how to look for logical fallacies, how to determine fact from opinion. Call that an agenda if you like but if a child knows how to think critically, the bureaucracy could push whatever agenda they would like but the child would at least have a better chance of determining if they are being taught a bunch of b.s. or not. This exercise we are engaged in now would be a good example of critical thinking. My goal here is not necessarily to convince you to agree with me about what rights a child should have, but to make my readers think critically about this issue. I don’t know the answer, but I think I’m in the ballpark. What rights do YOU think children should have? Whatever rights the parents allow? Are children’s rights merely an accident of birth in your opinion?

Icarus writes:

As it is the parents responsibility to see to the gorwth and well-being of the child until thye reach the age of adulthood, you could make the case that part of that responsibility is the responsibility to educate the child. This wouldn't necessitate public schools, only that a parent had to educate the child, whether they paid for a private school or home schooled them. Failure to properly educate the child would constitute child-neglect.

But of course if this is the case we run into some very familiar problems. One, it is still the government that must create the standards of what a "proper" education is, basically giving the government the power to decide what must and must not be taught. Second, if someone defaults on educating their child, it would still ultimately be up to the state to provide that educatoin for that child, whether they do it themselves or just give the child a check. In fact, i could see many parents purposfully defaulting in order to have the government pay for their kid's education.

Life, Liberty, Property, you start adding fake rights to the list and it just messes up the whole system.

By no means am I saying a child has to be educated in a public school. If I could afford it, I would put my children in private school (maybe another reason to have my Libertarian card taken away…the way I see it I’m paying for it anyway). I agree that determining what would be a ‘proper’ education is certainly a problem. As for me and my family, I see school as only part of my children’s education. I have a duty to make sure their education is complete.

Fake rights? See my response to Eric’s post.

A.L.L. writes:

Maybe the easy thing to do would be to have the god fearing parents sign a permission slip to let their High School children be taught about...S E X.

Many of these parents aren't teaching their kids about it, so it is left in the hands of the schools. I was taught in High School about diseases, all the ways you can get them, parts of the body, how they function, how and male and female function together...yes, we talked about sex, and oh no, masturbation. We were even shown how to properly roll a condom onto a cucumber. Girls and boys were shown how big
a condom could be blown up so that a girl knows better when the guy says he can't fit into one. Girls were taught not to be ashamed to carry condoms themselves, not to rely on the guy to have it. We learned about all types of birth control, pregnancy, rape, molestation, abuse, the list goes on and on.I didn't end up a teen age mother because of what I learned. These things being taught are facts, and a part of human nature, I don't understand why so many parents are against it. My parents weren't the type to talk about these things with me, kids need another outlet to get the facts, because friends are not a good source.I'm glad that my school was smart enough to teach us all sides, I wasn't taught a bunch of fluff about abstinence only and that kissing can make you pregnant. I very much agree with your article, teach both, don't rely on just one method or the other. The same could be said when it comes to teaching students about creationism and evolution. But that's another whole can of worms...

What if A.L.L. did not receive this information? What you don’t know can hurt you. In the case of STDs what you don’t know can kill you. This all goes back to the right of health and safety.

Quincy writes:

I argue that children (and parents) have the right *to seek* an education, much as they have the right to seek health care and myriad other goods and services in the economy. To that end, I argue that students trapped in ineffective, and monopolistic, public schools are having that right violated.

And also

Also, a caution about using the term "critical thinking": that term has devolved into edu-babble that means anything any educrat wants it to mean. Were I you, I'd argue for a strong, and early, education in logic and rhetoric in schools.

Educators are violating the child’s right to a quality education. How many children finish high school believing our country is a democracy rather than a constitutional representative republic? Many people think this is a distinction without a difference but there are important differences between the two. This is but one example.

The critical thinking I speak of is based in Greek roots; the foundation of Western Civilization. The Greek philosophers are responsible for much of the ‘American’ concepts we speak of today. Representative government, trial by jury, politics and logical argumentation were all Greek inventions. (No I’m not Greek if anyone is curious).

Related Posts By Others:
Libertarianism: The Problem of Children by Brad Warbainy
Today's Links and Minifeatures 2005 07 29 by Searchlight Crusade
What Is The Proper Role of Government? by Eric Cowperthwaite
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Thursday, July 28, 2005

What Rights Do Children Have? Part III of IV

Education (A Right to Know)
Social conservatives often complain that schools do not focus enough on the 3 R’s. They contend that schools spend too much time teaching other subjects. While I would say the most important skills for an individual to learn is literacy and mathematics and would agree that schools are not doing a very good job teaching these vital subjects, education must not end with literacy and mathematics. Education must adapt to the new challenges of the 21st Century world in which we live. Behind literacy and mathematics, every student should learn how to reason and think for themselves (critical thinking). Once a child has a basis for these three very basic skills, he or she can then learn about health, science, history, technology, etc.

So what does education have to do with a child’s rights? Very simply the fact that an undereducated child usually grows up to be a burden on society and has very little chance to pursue the American dream. While I would prefer that government get out of the education business altogether, if the choice is between thirteen plus years of education or a lifetime of welfare, I would prefer the first choice. Obviously, we have more choices than that but one way or another, a child must be educated to have any chance in life though being educated in the public school system (or any school system) is by no means a guarantee that the child will go on to live a fruitful life. In other words, every person has a right to know.

Caught in the Crossfire
Unfortunately, not everyone believes that children should have the right to know about the world around them. The schools are ground zero in the so-called culture wars as the battle for the young minds of this country continues. Every special interest group under the sun wants its agenda to find its way in to the curriculum. Rather than give the students the critical thinking tools every person should have, the schools give in to the outside pressures or worse, push their own agenda.

Surely children deserve better than this. Surely we can trust that students can handle the facts and learn how to distinguish between fact and opinion if we train them to be critical (or at least logical) thinkers. It is this unwillingness to allow students to think for themselves which causes some of the controversial subjects to be, well…controversial.

The Right to Know About One’s Body (Human Sexuality)
There are many examples I could use to illustrate the various controversial topics taught in the classroom. Perhaps the most controversial subject taught in schools is sex education. There seems to be at least 2 extremes in the approach to teaching teenagers about human sexuality. The first extreme is this ‘Abstinence Only’ approach (putting parents’ heads in the sand and hope for the best); the second approach is ‘Let’s pass out condoms!’ Neither of these approaches is acceptable for teens who would just like to have the truth.

Proponents of Abstinence Only Sex Education say that abstinence works every time it’s tried. There is no disputing that. The dispute is whether or not the Abstinence Only Sex Education works every time it’s tried (I doubt this approach works half the time its tried). There has to be more to the message than “just don’t do it.” Just don’t do it for how long? Until college? The student’s 30th birthday? This message assumes that all the students will “wait until marriage.” What about those who do not ever want to get married? Not every person is the marrying type; I don’t think it is fair to ask anyone to be celibate for his or her entire life on the basis of whether or not he or she ever wants to get married. I wonder how many young adults have rushed to the alter in the name of purity only to discover later they married the wrong person as a result of lust rather than love? After all, Abstinence Only students wouldn’t want to break their pledge they were coerced into signing to remain a virgin until marriage!

The second more liberal approach is somewhat on the right track but goes a little too far. Sex education should be more than just plumbing, contraception, and STDs. While these should be part of the class, it seems that the psychological consequences of sex should be taught as well. Most teenagers are not emotionally prepared for this level of intimacy with another person (though most every teenager thinks he or she is). A person’s first sexual experience should not be one he or she regrets.

So how do we find that balance? It seems to me that both approaches have some value and therefore, students should hear both approaches (as all rational thinkers should be exposed to all sides of any issue). Most parents want their teenagers to wait at least until adulthood to have sex. Pretending that your children will never have the natural desire to be sexual beings will not change that fact if the schools do not teach it. Whether we like it or not, our children will be educated about sex. Sexuality is a big part of our culture. It’s on television, the radio, the movies, the news and in advertisements ranging from tooth brushes to real estate. Teenagers get their information from their friends and other very unreliable sources. Teenagers are looking for the straight answers. Who is going to give it to them? Does a minor have a right to know about his or her body regardless of whether his or her parents approve? If we are honest with ourselves, the answer is a resounding yes.

Next: Part IV of this series I will be asking the question: Where Do We Draw the Line?
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Wednesday, July 27, 2005

What Rights Do Children Have? Part II of IV

Health & Safety
Without question, every child has the right to be safe and healthy. If the guardian of a minor child cannot provide health and safety (the very minimum requirement of having a child) or directly violates this basic right, the State (i.e. Child Protective Services) has a duty to step in and protect that child’s right to health and safety. I do not typically advocate granting more power to the State, maybe someone will take my Libertarian card away, I don’t know. I reason the State has a role based on my premise that children are individuals and their rights must be protected.

That being said, this raises many more questions. At what point should the State step in? What is a reasonable standard of health and safety a child is entitled to? To these questions, I do not have an answer. To illustrate my point, I’ll describe some of the more extreme health and safety issues that a guardian must be held accountable for: abuse and neglect.

We all have some idea what child abuse is; there are far too many examples of it in the news everyday. No sane person would say that a parent ought to have the right to beat or molest his or her child. Most people would agree that the State should take children out of such an abusive environment. Sometimes, deciding whether a parent’s actions constitute neglect is an even more difficult question.

In Arizona, the two most common causes of death among children reported in the news is drowning and ‘baking’ in a vehicle. These stories particularly anger me because far too often, the parents are let off the hook. More times than not, the reason a child drowns is because the caregiver is not paying attention.

The stories that anger me even more are those where the caregiver LEAVES A CHILD IN A HOT VEHICLE. Anyone who has visited Phoenix, Arizona knows that temperatures routinely reach between 100 to 118 degrees F in the summer. Now, think about adding another 20 to 50 degrees on top of that! A child in a hot car has no chance of survival if left in a vehicle at these temperatures for any length of time.

There are even ad campaigns warning parents about leaving a baby alone in a car. I am amazed that there are adults that do not understand how dangerous this is. The PSA’s tell parents to LEAVE SOMETHING IMPORTANT IN THE BACK SEAT (like a purse or a cell phone). Take a minute to let that statement sink in: ‘something important.’

Denying Medical Treatment
I think most of us can agree that allowing a child to drown or leaving a child in a hot car should be prosecutable offenses. Now here’s the part where I expect to get some hate mail: risking a child’s life because of one’s faith or belief system.

It sickens me to think that there are parents out there who will deny life-saving treatment for their child because of some moral or religious belief. Some will not take their child to the doctor because some faith healer used his or her mystical powers to rid the child of the affliction. Others believe it is sinful to be treated with blood transfusions and organ transplants. Their defense is one of two things: 1. ‘Doing so would violate my freedom to practice my religion’ or 2. ‘It’s my child and I have a right to decide what’s right for my child.’

I say both arguments are total b.s. Your child’s right to have the life-saving treatment trumps your right to practice your religion – period (save your demonstrations of faith on your own life, not your child who has no say in the matter). Secondly, once again, you do not own your child. Any parent who would deny critical medical treatment FOR ANY REASON (assuming it is not a Terri Schiavo type situation) should be prosecuted.

Next: Part III of this series I will be discussing a child’s fundamental right to be educated
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What Rights Do Children Have? Part I of IV

In most of my writing you may notice that when I write about liberty, I use a qualifier: adult. For example, I believe that adults ought to have the right to do whatever they please as long as they do not violate the rights of a non-consenting other or damage the property thereof (note: to be able to consent, the other must be at the age of consent). Adults ought to be able to live their lives with minimal intrusion from the State, as the State’s role is to protect the rights of the individual from other individuals who wish to do harm to the non-consenting other individual’s person or property.

Determining the rights of children is much more difficult because children cannot reason the way adults can (generally speaking). There are reasons why minors cannot legally buy alcohol and tobacco. I do not need to explain why minors cannot buy a handgun and carry it around in public. Certainly, there are rights adults ought to have that minors ought not to have but where do we draw that line?

Parental Ownership of Children vs. Child’s Individual Rights
My starting point for determining where a child’s right begins and his or her parents’ rights end is recognizing the fact that the child is in fact an individual. We cannot have a rational discussion on this matter if we do not understand that. Many parents seem to believe that they own their children; they do not. I know this may be a radical concept. Some will react and say: “It’s my child and I’ll raise my child any way I damn well please!”

My response to this notion is to ask the question: what is the meaning of ownership? My test to determine whether or not an individual owns something or not: Can I pour gasoline on it and burn it without violating anyone else’s rights (assuming I can burn my property even if I do own it without setting fire to someone else’s property)? If I can burn it, I own it. Using this simple test I would conclude that I cannot burn my child (or even my pet), therefore, I do not own my child (or pet).

This is why being a parent is such a challenge: as parents we are responsible for our child and his or her actions yet we do not own the child. This has the effect of taking away some of the rights we have as individuals to protect the rights of our children.

I do not want to give anyone the wrong idea; far too many anti-liberty laws have been passed ‘for the children.’ To make a law on this basis, we would have to demonstrate actual harm to children (such as smoking in a car with children inside). I do think we have to keep the interests of children in mind to some degree, however and find the right balances…assuming that is even possible.

Next: Part II of this series I will be discussing a child’s fundamental right to health & safety
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Thursday, July 21, 2005

Fearless Philosophy Flashback: Appointing Qualified Judges

On November 14, 2004 I wrote a post titled “Appointing Qualified Judges.” One of my concerns I had prior to the election about both George W. Bush and John F. Kerry as president was the likelihood that between 1 and 3 Supreme Court Justices would be nominated in the next 4 years by one of them. Realistically, I did not trust that either candidate would nominate Justices who would truly follow the original intent of the Constitution and other existing laws but rather nominate activists who would merely satisfy the base of whichever candidate would prevail.

Now it is July of 2005 and President Bush has selected John G. Roberts to replace Sandra Day O’Connor on the Supreme Court. I do not know enough about Mr. Roberts at this time to say whether or not he is a good selection. I have only begun the process of sifting through the spin from both the Left and the Right trying to find the truth about Roberts’ judicial philosophy. I am hoping that the Senate will do their due diligence by asking the tough questions and vote based on whether Roberts respects the Constitution and established laws or not. Of course I know this probably will not be the case; it seems that the debate will degenerate into a debate over whether or not SCOTUS may someday overturn Roe vs. Wade (what most people do not realize is that even in the unlikely event that Roe would be overturned, abortion would not automatically become illegal but would be decided on a state-by-state basis). My concerns are much bigger than one single issue which frankly, I am sick and tired of being such a big part of the national debate (on both sides).

That being said, here is my original post about the litmus test which I believe should be applied to Roberts and all other judicial nominations.

Appointing Qualified Judges
Now that the 2004 election is over, we can return to debating substantive issues again. No more of this discussion about who served where and how during the Vietnam War. No more controversy over who really won the election; fortunately President Bush won handily with both the electoral and popular vote. We no longer need to worry about a Kerry administration outsourcing our national security to the United Nations to meet some sort of ‘global test’. What we do need to worry about is the make up of the courts; one area that concerns me no matter who is president.

Conservatives often complain that liberals try to get their way through the courts. The argument is that liberals are not winning elected office so the only way they have any power is through a ‘liberal’ court. Conservatives also have this false notion that the court should follow the will of the people. They could not be more wrong on this. Judges are supposed to rule in accordance with the Constitution, not with what is popular at the moment. The Bill of Rights specifically prohibits certain rights from being voted away: freedom of speech, right to bear arms, protection against unlawful search and seizure, etc. The founders of this country were very wise to have federal judges appointed to lifetime terms rather than be elected. The founders were concerned that judges would try to appeal to the majority rather than interpret the laws already on the books.

Because judges tend to be around a long, long time, it is important to have judges who will fulfill their role in the proper fashion; this is where the principle of checks and balances comes in. Some conservatives argue that President Bush earned a mandate to appoint the judges of his choice and that the senate should approve of his appointments because of this mandate. Again, wrong, wrong, wrong! Not everyone who voted for Bush necessarily agreed with every one of his positions; the same could be said about Kerry’s supporters. It is the senate’s duty to review the qualifications of each appointment to the cabinet and the judiciary. Each senator is duty-bound to his or her constituents and personal beliefs as to whether the appointee is qualified for the post. It would be irresponsible for a senator to allow the president to always have his way because of some perceived mandate.

Senator Arlen Spector of Pennsylvania has come under heavy fire from some of his fellow Republicans because of concerns over whether he will allow certain judicial appointees out of committee. He is seen by some as not being a team player. Senators are not supposed to be team players but many of them unfortunately are. Conservatives have not forgotten how Senator Spector railed against Reagan’s appointment to the Supreme Court, Judge Robert Bork. Fortunately, Judge Bork failed to be appointed to the Supreme Court because of controversial opinions he had written earlier in his career. The most disturbing of Bork’s opinions was his views on the first amendment; both how he viewed the establishment clause (separation of church and state) and his view that only political speech is protected by the first amendment (Vieira & Gross, 1998). Judge Bork believed that art, literature, pornography and all other forms of speech, which were not political, could be censored by the government! Regardless of what his other constitutional views may have been, this in itself disqualified him from the highest court. Think I’m wrong? Let’s take a look at the first amendment as it is written in the United Sates Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.
I am no legal scholar but I think I understand what “Congress shall make no law…abridging the freedom of speech…” means. Unfortunately, politicians on both sides of the aisle have abandoned their obligation to protect the constitution. Whether it’s a bi-partisan law regulating campaigns (campaign finance reform), the creation of the Federal Communications Commission, or others who pass more stringent gun control laws, we deserve judges who will strike down these unconstitutional measures, regardless of what the majority wants.

All judges, especially if appointed to the Supreme Court, should pass this litmus test:

· Does he or she believe there is a wall of separation of church and state implied in the establishment clause of the constitution? If not, this judge should not be appointed.

· Does he or she believe the first amendment applies to all forms of speech as long as the speech does not provoke a ‘clear and present danger’ to others? If not, this judge should meet the same fate as Mr. Bork.

· Does he or she believe the right to bear arms is an individual right not a collective right? If not, the president should not appoint, the senate should not confirm.

· Does he or she believe the constitution provides a right to privacy implied in the fourth, fifth, and ninth amendments? If not, the appointee should provide a satisfactory explanation to meet senate approval.

This of course is a minimum standard; certainly there are other criteria that should be met. Having judges that pass this litmus test should not be too much to ask (but it probably is). Hopefully President Bush will appoint such individuals and overlook candidates who have a judicial philosophy similar to that of Mr. Bork. If not, we must hold out hope that the senate will do its job, upholding the constitution, not bowing to the edicts of a political party or the tyranny of the majority.

Reference:Vieira, N. & Gross, N. (1998). Supreme Court appointments: Judge Bork and the politicization of senate confirmations. Southern Illinois University Press, Carbondale, IL. Retrieved November 14, 2004 from
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Monday, July 18, 2005

Open Source Amendment Project Completed

Stephen Macklin at Hold the Mayo has completed his project to amend the Constitution to reaffirm property rights (or maybe you might say ‘clarify’ for our elected and unelected officials) to every U.S. citizen. Rather than pushing the amendment I authored shortly after the Kelo ruling, I’ve decided to throw my support behind Macklin’s effort and I encourage all of my readers to do the same. Though not much of my proposed language survived the ‘open source’ amendment, Macklin did incorporate my ideas and many others into the finished product. Here is the finished ‘open source’ amendment (Revision 12):

The right to ownership of property being the cornerstone of liberty, no government, or agency thereof, within these United States shall have the authority to take property from any person, corporation, or organization through exercise of eminent domain for other than a public use without just compensation.

Public use shall be understood to be property the government owns or retains the paramount interest in, and the public has a legal right to use. Public use shall be understood to include property the government owns and maintains as a secure facility. Public use shall not be construed to include economic development or increased tax revenue. Public use of such property shall be maintained for a period of not less than 25 years.

Just compensation shall be the higher of twice the average of the price paid for similar property in the preceding six months, or twice the average of the previous 10 recorded similar property transactions. Compensation paid shall be exempt from taxation in any form by any government within these United States.

There has been some thoughtful criticism with our idea of amending the Constitution. Some have said the ‘takings clause’ of the Fifth Amendment is perfect as it is. I would have to disagree. Right or wrong (wrong), 5 of the nine Justices on the Supreme Court took the takings clause to mean governments can take property from one private entity and give or sell it to another. The Fifth Amendment is due for some clarification.

I do not buy into this idea that the Constitution is a living, breathing document. The English language and the world, however; is living and breathing. What I mean is that language evolves; meanings and understanding of words change. Also, we have to think about nuances in the country and the world.

Back when Madison penned the Constitution and the Bill of Rights, he had no way of foreseeing the multi-national corporations we have today. It never occurred to the founders that someday a big-box store such as Wal-Mart or The Home Depot would have so much influence over the political process on every level of government. Clearly, Madison et al believed that the government would take property as a last resort and only for what they believed to be legitimate functions of government. Over the 200 plus years of the history of the United States, ‘legitimate functions of government’ has also evolved.

I believe this proposed amendment is much less ambiguous than the takings clause of the Fifth. Is it perfect? No. Remember though, perfect is the enemy of good. In my estimation, this amendment is good and would be good for our country and its citizens. If you agree with me, join the Open Source effort and sign the petition. Another letter to your congressman wouldn’t hurt anything either.
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Friday, July 15, 2005

What It’s All About

Several hours before the birth of my daughter, the news of the terrorist bombings in London reached the television in the delivery room. Prior to this tragic news, I had taken a bit of a vacation from following the news as closely as I usually do. I have found that occasionally taking a break from the news (whether its talk radio, newspaper, television, or the blogosphere) is good for one’s sanity. The world is a very dark and scary place sometimes and this darkness is amplified in the news every single day.

With the upcoming birth of my daughter, I did not want the weight of these realities on my mind. Preparing for this new addition required my attention. The rest of the world and its ills would have to wait. Besides, the birth of a child is a joyous time (and it very much was) and nothing was going to take that away from us. Truthfully, even with the tragedy in London hours earlier, I did not spend much time dwelling on it.

Now that my ‘news vacation’ is over, I have return to my usual news junkie ways. Why? Why do I care so much about liberty, philosophy, politics, and the state of the Union and the world? Why not just go through life like so many others do and pretend like everything is okay and allow other, ‘better informed’ people follow the news and tell me what I should care about and how I should vote?

The answer is I have tried and failed. I do not trust others to tell me what I should think and I value my ideals too much to put them in the hands of others. Look where they have taken us. We live in a country that once valued individual liberty, personal property rights, free speech, and a free market. These other ‘better informed’ people have replaced these ideals with a paternalistic it-is-for-your-own-good approach to governing, limiting one’s personal property rights to a majority (read mob) vote, passing legislation abridging free speech on many fronts, and incrementally moving the free market to one similar to the European socialist model.

The juxtaposition of the birth of my daughter and the terrorism that happened on that very same day made me pause and think, “What is my need to stay informed and express my views all about?” What it’s all about is doing what I can to make my country and world a better place for my three children.

Where will we be in the war on terror when they reach adulthood? How many times will we be hit in that time?

Will America remain the leading superpower on the planet as a beacon of hope for others who desire freedom or will China or some other anti-liberty nation take her place?

How many more areas are left for the federal government to involve itself in our lives? Will my children have the right to peaceably assemble for redress against the government? Will they have the ability to write or speak freely without fear of violating some campaign finance law such as McCain-Feingold? What will the long-term effects be from Kelo on them if people do not rise up and take private property rights back from the government? Will they have the right to bear arms to protect themselves from predators or a tyrannical government?

These are the reasons I pay attention to the world around me. If those of us who are of the belief that Life, Liberty, and Property are essential to pursuing happiness won’t take a stand who will? If we do not act, the forces of political correctness and tyranny will eventually take over.

Someone once said that the opposite of love isn’t hate, its apathy. I love my family and my country far too much to be apathetic about either.
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Tuesday, July 12, 2005

Fearless Philosophy Blogpost of the Month (June 2005)

I know it is late but here it is finally, the Fearless Philosophy Blogpost of the Month for the Month of June (now that we are almost halfway through July). June was a very busy and exciting month to be a blogger. I joined the newly minted Life, Liberty, Property blogging community and quadrupled the number of outgoing links (more exposure) for this site. The topic on everyone’s mind in the last two weeks of June it seemed was the disastrous SCOTUS ruling we un-affectionately refer to as Kelo. With all the posts on this topic, I opted to select three posts which are not about Kelo (at least directly). There were many posts on Kelo which would be worthy of this honor, however. If you haven’t already had enough of this topic, I would highly recommend for you to read the Carnival of Liberty II (especially the winning post). With all of that said, let’s take a look at my top 3 picks.

Third Place goes to Mindwyrm of Uncommon Insanity and his post What is Liberty? This is a very fundamental and important question we should ask. Mindwrm writes:

Freedom is defined as the capacity to exercise choice; free will. Liberty has it's meaning as the right and power to act, believe, or express oneself in a manner of one's own choosing. Looks to be pretty much the same thing, right? Wrong. Freedom is just the capability to make a choice. Every person in the world has that…oppression isn’t the taking of freedom. It’s the denial of liberty.”

Though we came to very different conclusions on the Ten Commandments cases (click here for my post; click here for Mindwyrm’s), he makes a compelling argument about what the meaning of liberty is.

Second Place goes to T.F. Stern of T.F. Sterns Rantings for his post Entitlements are Killing the American Spirit. Like the title suggests, Stern explains why the ‘American Spirit’ is suffering because of ‘entitlement’ programs. Stern then directs the blame of this notion of entitlement (rightly) mostly toward today’s senior citizens.

Some of you senior citizens, you survivors of the Great Depression; what happened to the “can do attitude”, did you leave it on the night stand next to your dentures? Do you stand behind the AARP crap, “Give us our prescription drugs, give us universal health care, give us everything because we have earned the right”? Think about the demands to have “government sponsored” entitlements. Doesn’t this fly in the face of everything your generation stood for? Did you wake up one morning and say to yourselves, “I’m tired of fighting the good fight, and anyway, I paid my dues.”

What kind of example are we setting for the next generation? Are we telling them that when you reach a certain age you become useless, unable to obtain necessary items or worse; that you would permit another to do what you could have done for yourself, had you any pride left within you at all? God, I hope not!

That last sentence is priceless isn’t it?

And the winner is…The Fearless Philosophy Blog Post of the Month of June goes to Eric Cowperthwaite of Eric’s Grumbles Before the Grave and his post Originalist vs. "Living Document" Eric’s post turned out to be quite timely with the Kelo ruling and the retirement of Supreme Court Justice Sandra Day O’connor, both events happened shortly after publishing this post. In the third post of my blog I tried to explain the way judges should approach the Constitution and other existing laws on the books. Eric does a much better job of this in his post:

The amendment process, in fact, is the answer to the "living document" argument of constitutional theory. Much of the ills that the Left argues against today, the bureaucracy and congress that favor the corporate state over the individual, the military-industrial complex, the gross extension of police search and seizure powers, the intrusion into social issues that should be matters of purely local and state law are, indeed, the result of the "living document". We can point at any number of laws and regulations passed by congress and any number of decisions made by the courts that have "interpreted" the constitution, rather than being based on its original meaning. Surprisingly, the Left does not (or chooses not to?) see that one is the consequence of the other.”
Congratulations to all of this month’s winners!

Past Winners:
May 2005
April 2005
March 2005
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