2007 March/April NFL L/D Debate Topic
Resolved: The United Nations' obligation to protect global human rights ought to be valued above its obligation to respect national sovereignty.

The United Nations protecting rights vs. respecting national sovereignty topic is a fascinating one.  Students will have a range of ethical and practical issues to research, address, and debate.

Protecting rights is what government's should do.  Consider the words of the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..."  Full text here.

Two or three problems for debaters on the affirmative: 

1) There is disagreement about just which rights exist and are to be protected by governments.  The U.S. Constitution focuses on substantive rights like freedom of contract and secure property rights, civil liberties like freedom of religion, speech, and the right to petition for redress of grievances.  And, further, the due process right to a fair trial by a jury of peers.  America’s founders were especially concerned about the size and scope of government, and the strong tendency for government powers to be abused.  They designed a system with an eye to protect the flower of liberty from the grasping hand of the state (these are among the many startling metaphors actually popular in the founding era).

The United Nations' however has its own "Universal" Declaration of Human Rights.  The U.N.'s version is a substantially different document.  It should perhaps be called a "Universal Declaration of Human Wishes," for it states many nice things that we would wish for the peoples of the world.  Consider Article 1: "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."  Rights entail obligations.  My right to own a home and productive tools, means you are obligated to respect these right.  You can’t enter my home or use my tools without my permission.  But what enforceable obligations are created by the U.N. statement that we “should act towards one another in a spirit of brotherhood.”  How can this ideal be fashioned into laws enforced by governments?

Articles 3-11 and 13-21 of the UN Declaration are reasonable if verbose, and similar to protections listed in the Bill of Rights.  Article 12 is more difficult because it includes: “No one shall be subjected to arbitrary … attacks upon his honour and reputation.”  If such a right to one’s reputation existed it would quickly lead to suppression of free speech and freedom of the press.   Every day newspapers in the U.S. carry articles exposing alleged fraud in government and/or the private sector.  How many of these “attacks” are “arbitrary”--to those “attacked” many will surely seem arbitrary and instigated by their enemies.  If you think attacks in today’s newspapers seem harsh, you should read what the Federalists and Jeffersonian politicians wrote about each other in the newspapers of the time (a newspaper claimed one noted politician was a "bald, blind, querulous cripple"--to which an opponent is said to have commented that two out of three was close enough).

We would wish for a spirit of brotherhood, but we don’t call on governments to enforce spirits, we ask that governments protect rights.  No one has a rights to their reputation, since reputations reside in the minds of others.  Freedom of the press has always been a messy business (just look at the supermarket tabloids).  But the alternative of having governments try to protect reputations through legislation has proven worse wherever tested.  The Egyptian government now has a blogger in jail to protect the reputation of the state.  Thousands of American bloggers would go directly to jail if the rich and powerful attacked daily could bring in the government to protect their reputations.

Article 22 begins the transition from traditional negative rights (that is, rights people have that governments are not to invade), to claims of positive rights (that is, rights claims that if they existed, would require invading the rights of others to provide).  Articles 23-26 express these modern claims.  They are similar to the “four freedoms” claimed by President Roosevelt in his refashioning of the role of the U.S. government (highly recommended on this topic is Felix Morley’s book, Freedom and Federalism).  These claims of positive rights were made popular in the 1930s during the New Deal.

Articles 23-28 describe wishes that can be and usually are provided by civil society (that is, by private and voluntary institutions), but which could not be guaranteed by government without government limiting freedoms and distorting private institutions.  Article 23 includes a claimed right “to protection against unemployment.”  How could this be provided?  Should government’s make it illegal to quit a job?  Or allow someone to quit only if they already had another job?  When a job is done poorly, would government allow people to be fired only if they had another job lined up?  Who would arrange this other job?  If that job too was done poorly, who is to blame, and who arranges the next job?  Again, we can wish for and hope for as few people unemployed as possible.  But no government can protect a “right” to be not to be unemployment without freezing the economy and interfering with freedom of contract, which is listed in the U.S. Constitution (Article 1, Section 10, Powers prohibited of States: “No State shall … pass any … Law impairing the Obligation of Contracts…). What business would consider hiring a person for a job if they knew they would be unable to let them go if the job were done poorly (regardless of who might be to blame)?

Article 23 continues with a claimed right for “equal pay for equal work.” How could this be guaranteed?  If I work longer on this article than Victory Briefs does on their LD topic analysis book, how is my "right" to equal pay to be enforced?  Should I be able to file a claim against Victory Briefs and have them turn over some percentage of their income for their LD book sales?  Or, if Victory Briefs contracts with two writers to jointly prepare an LD book, and one spends twice as many hours in research and writing, does he or she have a rights claim to twice the pay?  Or if both work equally hard, but one is twice the researcher and writer--producing twice the output--should that person get twice the pay?  In the end there is no one to decide these issues except the management of Victory Briefs, following whatever formal or informal contractual relationships they make with topic researchers and writers.  The Founders well understood these issues, which is why they included in the Constitution a ban on State laws that would impair obligations of contracts.  There is nothing in the Constitution about “equal pay for equal work” or a claimed right to “just and favorable renumeration” for work (favorable to whom?). 

Consider especially the 9th and 10th Amendments, the last two in the Bill of Rights:
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The U.N. Declaration includes claimed rights that are not only not in the U.S. Declaration, Constitution, or Bill of Rights, but that seem forbidden by these last two Bill of Rights Amendments.  (Of course, the U.S. Constitution can be and has been amended, but it can only be amended by specific processes.)

For a further discussion of rights issues and debates, see articles in our 165-page Liberalism, Values & Lincoln-Douglas Debate (pdf document).

--- Greg Rehmke, February 19, 2007
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2007 January/February NFL L/D Debate Topic
Resolved: The actions of corporations ought to be held to the same moral standards as the actions of individuals.

A reporter from the Toronto Star emailed to ask about my 2004 post on the economics of Dicken's A Christmas Carol. Click here for the Toronto Star article, published on December 17th. A revised and expanded version of the essay is here (in pdf), or here on our Economic Thinking "Blog".

Philip Marchand’s Toronto Star article concludes:

"Regarding the question of Bob Cratchit's wages, Rehmke and Spence are closer to being in agreement.
Spence suggests that, as a result of a wage hike, Cratchit likely "would be happier and much more productive."
Rehmke, in his 2004 article, suggests that a wage hike would signal "more responsibility at the firm... The higher pay would go hand in hand with higher productivity from Cratchit that could naturally follow more delegated authority."
That much, then, is settled: raise Cratchit's salary, even if it that means Cratchit receives more than his market value. 'Tis the season, after all."

Well... I don’t think I quite call for Scrooge to pay above-market wages, though Scrooge would be free to do so (it is his own money, after all, and waking Christmas morning to find himself not dead has put him in quite good spirits). More valuable to Cratchit though would be Scrooge’s effort to increase the market-value of his work. Which is not quite the same thing. Still, in the holiday spirit, it is close enough, and I greatly appreciate being cited by Mr. Marchand in The Toronto Star... -- A Merry Christmas to all! -- Greg Rehmke

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www.cato.org/pub_display.php?pub_id=5974

Department of Coercion
by John Hasnas

Say you run a financial services firm that markets tax shelters to wealthy clients. Although the shelters are aggressive, you firmly believe they're legal. Indeed, you have sent one of your tax partners to testify before Congress to that effect. The IRS hasn't challenged the shelters in court, and no court has declared them to be illegal. Nevertheless, the Department of Justice has opened an investigation of your firm for tax fraud and indicted the partner who testified before Congress.

As a responsible executive, what should you do? Instruct corporate counsel to conduct an internal investigation to ensure that no law has been broken? Have the legal department begin to work on the corporation's defense? Enter into a joint defense agreement with the partner under indictment? Advance the partner's legal fees in accordance with the company's policy of supporting employees sued for employment related actions?

Or should you have the corporation accept responsibility for tax fraud, officially declare that several of your tax partners engaged in unlawful conduct, refuse to enter into a joint defense agreement or advance the legal fees of any of these partners, fire those who refuse to cooperate with the government, waive the firm's attorney-client and work product privileges, disclose all information that may incriminate your employees to the government, and agree to pay a several hundred million dollar fine? This, surprisingly, is the answer. Under current federal law and Department of Justice policy, it would be irresponsible management to attempt to defend the corporation or its employees.

The Thompson Memorandum spells out DOJ policy regarding indictments of corporations; and the federal Organizational Sentencing Guidelines determine the size of the corporation's fine if convicted. Both consider how thoroughly the corporation monitors the behavior of its employees through its compliance program, and whether the corporation is willing to "cooperate" with the government. That's the rub -- because cooperation is defined in terms of "the corporation's willingness to identify the culprits within the corporation, ... to make witnesses available; to disclose the complete results of its internal investigations; and to waive attorney-client and work product privileges." Retaining suspected employees without sanction, advancing their legal fees and entering into joint defense agreements with them is evidence of lack of cooperation.

http://www.cato.org/pub_display.php?pub_id=5974

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The development of rules of law to protect property ownership has been central to the rise of western civilization. Limiting confiscation of private property to a narrow range of circumstances was thought important enough be listed in the Bill of Rights. Tom Bethell's book traces this history.

From The Noblest Triumph by Tom Bethell: Jean-Baptiste Say observed that devising the means to protect property law within the province of politics, and tracing the origin of that right was a task for "speculative philosophy." Economics, or political economy, simply "recognizes the right of property solely as the most powerful of all encouragements to the multiplication of wealth, and is satisfied with its actual stability, without inquiring about its origins or its safeguards."... Say added the important point that the theoretical inviolability of property becomes a mockery when the "sovereign power" or government, "either practices robbery itself, or is impotent to repress it in others, or where possession is rendered perpetually insecure, by the intricacy of legislative enactments" (p. 98). Click image above to read excerpt from this book on Amazon.com.

Who Needs Eminent Domain?... January/February L/D Debate Topic

Key article in TIR. Follow link for full Acrobat article.

The Mythology of Holdout as Justification for Eminent Domain and Public Provision of Roads By Bruce L. Benson
According to the conventional wisdom, road transportation would be highly inefficient without the government’s power of eminent domain, because property owners could refuse to sell their property at the government’s asking price. In reality, there are strong grounds for thinking that private, for-profit road companies would have fewer problems with holdouts and few problems as severe as that of government failure in road transportation.

Institute for Justice on Eminent Domain. Two states pass reforms. (www.IJ.org)

Privatizing the Inner City by Robert Nelson (www.CEI.org)
But older cities face serious land-use problems. How can a dense urban area like New London or Hartford revitalize itself if developers have to build one lot at a time? Should residents of failing cities insist that shopping centers be built only in the far suburbs, displacing farms and increasing suburban sprawl? ... There is a better way to give developers access to sizable plots of land in the city: allow homeowners to privatize their neighborhoods and sell en masse directly to developers.

Eminent Domain Extremism Runs Into Judicial Brick Wall (www.Mackinac.org)
At last, the nation’s judiciary may be starting to come around to the correct – and Constitutional – position on governmental abuse of the powers of eminent domain. It’s only fitting that the turnaround began with a Michigan court, given that it was an overreach by this state’s Supreme Court, in the infamous 1981 Poletown case, which lurched the nation in the wrong direction more than 20 years ago.

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Principled Judicial Activism... November/December 2005 NFL L/D Debate Topic:
Resolved: Judicial activism is necessary to protect the rights of American citizens.

• A Case for Principled Judicial Activism by James L. Huffman (Dean of Lewis & Clark Law School)
Excerpt: "Most political conservatives believe in the principle of judicial restraint. I share that conviction, but I also believe in judicial activism. My purpose today is to make a case for principled judicial activism. In the process I will argue that the traditional conservative doctrine of judicial restraint poses a serious threat to liberty, and is therefore not consistent with the fundamental objective of the framers of the United States Constitution. ..." Continues.

• Principled Judicial Activism... Protecting a Just Social Order (essay by David Beers).

• Needed: Active Judges -- Not To Be Confused With Judicial Activists
Excerpt: The Constitution established a limited federal government. What else could its principal author, James Madison, have meant when he wrote in Federalist 45 that the powers of the new government would be "few and defined"? The Civil War Amendments perfected the design by affording federal remedies against state violations of individual rights. And there things stood until the Progressive Era, when the political activists of the day sought to bring us better living through bigger government, mostly at the state level. An active judiciary, in the name of law, stood rightly athwart that effort, for the most part. With the New Deal, however, political activists shifted their focus to the federal government-only to be thwarted again by a judiciary actively enforcing the limits the Constitution placed on political power.

• Legislative Activism, Judicial Activism, and the Decline of Private Sovereignty by Roger Pilon.

• Principled judical activism, or just conservative ideologues? Federalist Society page on debate over judicial activism: Excerpt: critics believe these Bush nominees are little more than ideologues, adherents to a philosophy allegedly adopted by Supreme Court Justices Rehnquist, Scalia, and Thomas of "conservative judicial activism." Continues...


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