With a broad topic like the Pursuit of Happiness, it's difficult to ensure that the ensuing debate produces clear areas of clash between the 2 participants. For example, in this passage, the challenger grants what's classically the central clash in a debate on this topic
...the Iron Blogger Libertarian (along with many of the commenters) seems to have missed something important: I am not arguing that prohibition is the best option. I never have. I freely concede that the social costs to outright prohibition of these activities may be--might possibly be --greater than they would be in a legalized, tightly regulated environment.
Put simply, by utilitarian measures, we appear to be in agreement that the criminalization of victimless crimes exceeds its benefits. By not countering my arguments about the source of the social ills, the challenger is basically leaving the judge to take these arguments at face value and hence essentially granting them. Instead, the challenger is directing the debate from the question of "should
voters criminalize victimless crime" to "can
voters criminalize it."
This latter question quickly breaks down into the broad issue of "what can voters do?". On the rights side of the debate - the challenger's central contention is that "Freedom of Action" provided to voters allows the enactment of positive rights such as preventing others from engaging in victimless crime -
...I assert that voters do have the right to make these decisions, based on whatever logic or emotions guide their consciences. To take a truly absurd example: let us say that the city of Detroit passes an ordinance declaring that all men within city limits must wear their underwear on the outside of their pants. Men found without their underwear on the outside of their pants will be subject to a $50 fine or a night in jail.
In the West, voters aren't all powerful
- One of my favorite thought experiments here is succinctly provided by Fareed Zakaria in his book The Future of Freedom [p 19]
"Suppose elections are free and fair and those elected are racists, fascists,
separatists," said the Amercian diplomat Richard Holbrooke about Yugoslavia in the 1990s."
...For people in the West, democracy means "liberal democracy": a political system marked not only by free and fair elections but also by the rule of law, a separation of powers, and the protection of basic liberties of speech, assembly, religion, and property.
...Constitutional liberalism, on the other hand, is not about the procedures fo rselectin government but, rather, government's goals. It refers to the tradition deep in Western history, that seeks to protect an individual's autonomy and dignity against coercion whatever the source -- state, church, or society"
The point? There's a strong tradition in the US and the rest of the West that the will of the voters is not the only expression of our Liberal Democracy. In fact, observors like Fareed Zacharia make the explicit case that such "Liberalism" and its express protection from "society" rather than "Democracy" is the hallmark of Western civilization & governance.
The constitution expressly reserves unenumerated rights to the individual
Clearly, our best instantiation of Liberal Democracy is the US constitution. One of my favorite proofpoints of this is found in examining the debates the framers had when creating the Bill of Rights in the first place. This description, for instance, captures the deep skepticism the framers had about the government's intrusion into personal rights
During this process there was a heated debate between those who supported the proposed constitution, the Federalists, and those opposed, the Anti-Federalists. Part of the debate focused on the lack of a bill of rights. The Federalists claimed a bill of rights was unnecessary. They based this assertion on the principle of limited government. The proposed constitution, if adopted, would create a federal government of limited enumerated powers. Under this system of government, every power not granted would be denied irrespective of whether the document contained a bill of rights.
...The Anti-Federalists, on the other hand, feared that the federal government would attempt to usurp this system of government and exercise powers not granted. They argued that a formal declaration was essential to secure the individual rights of the people.
It's important to note that this heated debate amongst the framers was NOT "can unenumerated rights be abridged by the government" but rather "how far do we have to go to ensure unenumerated rights never get usurped?"
The Federalists believed the basic structure of the Constitution was adequate while the Anti-Federalists feared that even this structure wouldn't withstand the pressure of political expediency. The Ninth Amendment was the catch-all & compromise between these 2 positions -
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Even in 18th century English, it's rather unambiguous. And beautiful.
Positive rights posses fundamental, internal contradictions
As I stated in my earlier arguments, allowing positive rights requires the imposition of morals, values, and the removal of negative rights from one group in the population by another group. The Challenger's underpants argument, for example, necessarily abridges the rights of those who prefer to travel "commando-style". In the more serious debate around drug criminalization - a legal area where black market activity is far more likely than skirting the underpants law (no pun intended) - this is perhaps most dramatically illustrated by the violation of the right to life of Vernia Brown
. By essentially granting the utilitarian argument, there's a rather direct and legally significant linkage from the positive right of attempting to create a drug free zone and the negative rights impact on Vernia Brown. Surely one of the few things that trumps the "pursuit of happiness" is "the right to life."
This recent post from Jane Galt
provides an excellent tutorial on the basics of positive rights and their contradictions -
...The difference between positive and negative liberty is that negative liberty requires only that one refrain from acting: punching someone in the nose, walking on their property, and so on. What's more, it is, or should be, perfectly reciprocal: if I have a right not to be punched in the nose by you, you have as perfect a right not to be punched in the nose by me.
...Positive rights require me not merely to refrain from acting, but to affirmatively act.
...Positive rights are by their nature unreciprocal; there is no point in having the government require me to provide you food, shelter and an education if you are simultaneously required to provide me food, shelter and an education, as it would be more efficient to have each of us provide these things for ourselves.
Negative rights are bounded; positive rights theoretically unlimited.
Jane Galt's point with assymetry is critical - in the underpants case, clearly the positive Right to force all men to parade in their underpants benefits some radically more than others (perhaps some of my neighbors here in San Francisco?). Given that the supporter of such a policy probably already chooses to wear underpants on the outside, the "social increment" here is that he's simply expressed a desire to see others do it. By contrast, this increment costs others FAR more - they actually have to do it when they presumably wouldn't have under their own volition.
Is vs. Ought.
The central debate challenge issued by the Chairman is a question of "ought" rather than "is". "Should victimless crime be illegal" rather than "Have voters decided to criminalize victimless crimes". I'll grant that they have BUT, with the critical caveat that this is not indicative of "should they". Ours is a dynamic system and my fundamental faith in humanity is that many "is's" will eventually turn into "ought's." I advocate that this happen NOT via the inherent coercion of government but rather the soft power of civil society.
Thank you Mr. Chairman, I yield the floor to the Challenger.