Absolutely they do. Usury laws force a bank to charge a certain rate of interest. Well if I want to take out a larger loan and agree to pay a high interest, as long as I am not coerced into doing so I should be allowed to make that contract. Secondly, i believe we should end the War on Drugs. Finally, donating to a terrorist group is significant because you would be financing people who have or are intending to commit positive harm against others. That should not be protected.



Limits that should be decided by the type of harm that is being done. I do not believe the government should be able to decide who can or cannot enter a contract with, with my own property.

Don't lose the nuance... you mean unless there is a reasonable chance doing so would encourage positive harm to another human being.

I respond simply that we should not stop there. I have no philosophical objection to limiting the rights of loan sharks and bigots to do negative harm.

...and neither does the Constitution.

Agreed.



Then I suppose we can just agree to disagree on this.

OK, still not getting it. Social contract theory deals with ALL governments, regardless of the model of government. It refers inherently to the role of government in a society. So, it doesn't really matter if we're a constitutional republic, or Socialist Russia. The idea behind social contract theory is that people consent (generally nonverbally) to be governed, in hopes that the government will provide them with a certain stability and security. (For more info, I suggest reading Michael Walzer, in case you care.)

The idea is, no matter what is written in law, the government and the people have a bargain, and they must both uphold their part of the bargain. (In case you didn't infer it, the people's side of the bargain would include not rebelling, and allowing those in power to keep their power.) However, if one part of society is not satisfied, then they can rebel against the government. The government at this point has a view choices, the most obvious being that they extend their benefits to the marginalized sector of society, or they let that sector rebel.

Now, what you call "special privileges" I would say are laws that merely reinforce the Constitution. So, yes, the Constitution states that everyone is equal under the law. Great. But is the Civil Rights Act saying that some people are "more equal" than others? I would argue that it reinforces the Constitution, but it does not add any special limitations on the greater majority. Laws can be complementary to each other.

I understand perfectly well social contract theory. It is at the heart of many liberal philosophies. What I have been arguing this whole time is that the 'benefits' you speak of that need to be extended is equal protection under the law...and nothing beyond that. You appear to be arguing that equal protection under the law is not enough, that benefits should be added in order to counteract perceived social disadvantages.



I will reiterate. The role of government (in this area) is to treat everyone equally under the law. Thats it. Discrimination in private, voluntary contracts is not something that should be decided by government. Discrimination (again, not in the negative context of the word) is a necessary part of a free society because it has to do with choices. One can choose what products to buy, and one can choose who they want to sell/not sell their property to. When the government makes the moral decision that one person should be the buyer of your property, that is an infringement on your freedom.

Given laws that impeded black voting it would not even have required a majority to impose Jim Crow. Under the free market it just takes a few individuals to begin the segregation process. Once people start interacting discrimination declines. What the libertarian is fighting against is the fact that popular sentiment should be allowed to interfere with individual liberty.

I am sure gay Americans would love to be in a position where government treated them neutrally.

The modern liberal responds that individual freedom should not be allowed to interfere with the creation of an ethical societal system.

Laws against discrimination, illicit drugs, prostitution, usury, public intoxication, etc. are lines in the sand. Be free, but don't let your actions trample everyone else's life.

The classical liberal would respond that the creation of an ethical societal system is only possible through the respect for individual liberty.

The laws that you describe are nothing more than a holier-than-thou majority that wish to impose their morality on everyone. Prohibition was such an example of this in action. I know I have used this quote before, but I think Thomas Jefferson put it quite well when he said: "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it."

This debate is getting a bit broad but the libertarian responds that the negative effects of pushing drugs and prostitution into the black market far outweigh the good. Right now popular sentiment is causing government to positively discriminate against gay Americans; that is probably an action most liberals would agree is wrong but the modern liberal's base principles do not prevent government from taking such actions.

I would argue that the chief reason blacks are five times more likely to be imprisoned when compared to whites is drug laws.

Then let's double back, how does this argument apply to housing and employment discrimination?


That's because modern liberals aren't typically afraid of abstract decision making.

There is a balance to be struck that doesn't always rely on hard-and fast rules. We make the comparison.

Which ought we protect, the bigots right to discriminate or the right to equal opportunity?

turnea, you are framing the debate in a disingenuous way. You have to put it all on the table. The right to discriminate ( the right to make voluntary and private contracts) or the right to 'equal opportunity' (government coercion with the hopes of increasing equality through the forcing of involuntary contracts). We cant just look at the potential positives while ignoring the potential negatives of a given policy option.

Agreed, all I'm saying is that the negative of forcing a landlord to accept black, white, asian, female, Catholic etc. tenants is well worth the cost.

Weigh it out and see what's more important.

I don't want to take the debate any further offtopic, but in these remarks, you seem to be confused about the social effects of the the things in your list. Drug use and prostitution, like alchohol use and sex without money being exchanged, hardly "trample on everyone else's life." Essentially all the evils that are conventionally associated with these "crimes" are caused, in fact, by their prohibition. What injury is done, is done to those who engage in these pursuits, not to bystanders and not to the community at large. Discrimination, public intoxication, on the other hand, in varying degrees have negative effects on unwilling persons, and so some action by the state is warranted. Usury would not be considered a crime in a world with fully functioning markets and free-flowing information; why in such a world would the state try to place a ceiling on the cost of a loan? But in the actual world, markets do not function so perfectly and information is costly, so a reasonable case can be made for this policy. For the same reason, a good case can be made for regulating the supply of food and drugs, for workplace safety regulations, for licensing various critical professions, and various other regulatory interventions. I would compare civil rights laws most closely to this kind of regulation, actually.



This is true, but as a matter of historical fact, racial discrimination (which is a very mild term for much of the historical reality) has been widespread and virulent across the United States, with very negative consequences for liberty and equity. It really is not true, either, that oppression of this kind arises only by the hand of government. Everyone is familiar with many forms of discrimination that individuals and groups have historically engaged in, without any explicit government sanction whatever. Before the 1960s, it was hardly ever necessary for the police to enforce the Jim Crow laws, which was the job of ordinary white citizens on the street -- and one they took up with enthusiasm. And during Reconstruction, Jim Crow and the Lynch Law was clandestinely enforced in spite of Federal exertions to prevent it. Nor did government do anything to cause the notorious pogroms in Tulsa, East St. Louis, and several other U.S. cities, which cost so many black people their homes, their businesses and their lives. There were many thousands of lychings throughout this country, between the Civil War and the enactment of the civil rights laws, that occurred with very scant government sanction. It is an absurd pretense that all this would not have occurred except through the exertion of state power.

The essential weakness in the libertarian position, apart from its subscription to a fairy tale about how markets operate, is that it assumes that there is an objective standard by which it can be judged whether government is performing a supposedly good function (enforcing contracts and defending rights) or a supposedly bad one (protecting market power or causing oppression). There is no such standard, and whether government in any given case is doing the one or the other is an entirely subjective question. There may be consent of the governed in varying degrees, but there is no social contract, for the reason that different elements of society have fundamentally irreconcilable interests. Pareto optimality is a very barren concept, because essentially no policy is capable of benefitting the interests of some with damaging those of some others.

Fair enough, that was just my scattershot comparison cobbled together from restrictions modern conservatives typically defend.

Meant purely as an illustration.

So what? However nuanced, you are making a moral judgement based on the principle of harm. You argue that the government should not be allowed to infringe someone's right to voluntarily enter into a contract; to do so is a gross overstep of its authority as defined by the Constitution; yet you here make a distinction.

Your choice of words is interesting as well. Positive harm? That is a philosophical distinction which has no roots in Constitutionalism, yet you reject other philosophical contrivances as contradicting the constitution. The fact is that you are conceding (albeit in a small degree) that the law does need to go beyond "equality under the law..." You're just insisting that it does so on your terms; which are much closer to the Constitutional imperative than others'.



Really? I can't find that sentiment anywhere in the Constitution. It does say that no state shall... "deny to any person within its jurisdiction the equal protection of the laws." That is not the same concept, exactly.

It does however say that:



People tend to regard the preamble in two ways: they either ignore it or use the language of "general welfare" to justify all manner of government program; neither treatment is fair. The preamble does one thing and one thing only: it tells us that the framers weren't just engaged in a political experiment, they wanted everyone to be able to enjoy liberty and the benefits of a stable and free national government.

Back in 1789 this meant uniformity of law and due process, and the language of the Constitution (and later amendments) reflects this fact. However, to assume that other means for the protection of liberty are by their nature excluded because they were not included is to follow only one of two major schools of Constitutional interpretation; both rely on interpretation of the text and a heavy dose of philosophy, so do not make the mistake of thinking yourself standing on an island of fact surrounded by a sea of irrelevant musings.

Libertarians find that the majority often do not do well at abstract decision making. We believe history has shown that democracies are also prone to tyranny. We believe that tyranny of the majority is still tyranny. We believe there should be severe restrictions on the government's power to restrict individual liberty to prevent the tyranny that is presently democratically imposed on gay Americans and has, in recent history, been imposed on black Americans. We distrust the rule of 50% plus one.

C.C. Goldwater writes:

How often I've said those same words, however I also recognize the reality of democracy. That to a large enough majority nothing is inviolable, including the ever-amendable Constitution.

Ultimately everything comes down to values. Right and wrong.

If a majority chooses to do something undoubtedly correct, as I judge offering legal recourse for discrimination to be, far be it from me to stop them.

The pursuit of a just society is the very root of democracy, as other have noted. It's the social contract.

I respect libertarianism as a remarkable consistent ideology. Not perfectly, it has trouble with security and education, but relatively.

...but the reality of what its policies mean, a society that favors those with non-governmental power, is not something I wink at.

Perhaps you could further explain? Where did I concede that the law does need to go beyond "equality under the law?" The basis of my argument is that government must treat people equally under the law...period. On what terms am I going beyond that?



I'm ready to call shenanigans, but would much rather see you explain the difference instead of just claiming there is one.



Agreed.



I've made no such assumption. I've just called out certain "protections of liberty" as having nothing to do with liberty but rather have an underlying egalitarian purpose. And thats fine if thats what you believe. I, for one, do not believe that egalitarianism trumps individual liberty.


Democracy is a great thing, when it goes your way. It didn't go the Native Americans' way for a long time. It didn't go the African Americans' way for a long time.,etc... Limiting the powers of a majoritarian democracy is to specifically prevent history from repeating itself. I agree that democratic principles are a good and necessary thing for a free society. However, I am just a bit more cynical about everything coming down to right and wrong. This can be interpreted as coming down to the powerful v the weak or whatever other variation that benefits a majority.

A side note, one of the problems that I see, particularly in debates dealing with the finer points of liberalism, is that people fail to know the true history of liberalism as a philosophy. Over the years the word liberalism has been hijacked by so many other philosophies that it has almost become a word without a definition.

You conceded that the law needs to go beyond equality when you argued that certain certain privately agreed contracts (with groups that support terrorism) should NOT be protected by the law. You are arguing that because the group does something that you find morally objectionable then they sacrifice that equality under the law; that the law should treat individuals differently because the morality of their action. Let me illustrate:

Two men want to make donations to medical groups in the Middle East. One donates to the Red Crescent and the other donates to Hamas. Now, Hamas is considered a terrorist organization and as such the second donation is illegal, a position you support; but in either case the money is going to medical aid for people in the Middle East. The second man is arrested (or just snatched up in the night and probably has all of his property confiscated): there is no equality in the protection of the law here both men have freely entered into agreements with third parties and neither man has been complicit in a crime (Hamas does generally channel it's medical donations into medical services.) Yet both men receive decidedly unequal treatment under the law. One is protected, the other is squirreled away.



Fair enough. The distinction between "equal protection under the law" and "equal protection of the laws" is that the former implies that the law be applied completely uniformly, and the latter suggests that the laws be applied that everyone enjoys an equal level of protection; and to me the two are not the same. Shall I get my broom?



Mark it down... July 21st, 2007.



I don't believe that it trumps individual liberty in general... but I am not discussing egalitarianism; egalitarianism implies equality of outcome, and I am talking about basic equality of means. Social discrimination can create an environment where an individual has no meaningful chance to enjoy their liberty, and I do believe that in that situation the state can intervene, and the language of the Constitution does allow this. If "Live, liberty and the pursuit of property" are the inherent rights of all free (wo)men, then how can we say "the law treats him fairly, so he is in fact free." A black ex-slave in post-Reconstruction Georgia was no more free than a beast caged its whole life and released into the wild.

Libertarians, as opposed to anarchists, recognize that government is needed. The primary purpose of government is to protect life and property. Thus, we have laws in place to counter internal and external aggressors. The banning of donations to Hamas should depend upon that groups threat to the United States. In my view that threat is insignificant. Hamas is mainly a threat to Israel, not the US.

Absolutely, where we differ is where those limits should be.

The modern liberal is a classical liberal tempered by the reality of the industrial revolution.

That was the real point of The Jungle, not all that auxiliary worry over food standards.

Times ain't what they used to be and libertarianism fails to account for the enormous power that private sector magnates, corporations, and yes even the local landlord can and often do wield over the everyday lives of Americans.

I support using the government as a check on the private sector even as congress and the judiciary are checks on the executive. No one should be allowed to get away with downright unethical behavior.

This is an interesting attempt, and I emphasize attempt, at discrediting my argument. Two people who enter into a private contract where the end result is the injury or death of a third party is not something that is protected under the law. That's why it is against the law to hire an hit man to murder somebody. Its the same principle. Hamas is a group that engages in numerous terrorist activities that specifically target civilians. If a person decides to support this type of activity with finance then they would be complicit in whatever actions undertaken by the group itself. It has nothing to do with free speech or free association. I have remained consistent with my beliefs in this thread as far as I can tell and despite numerous strawmans built to discredit them. As long as your contract will not reasonably result in the positive harm of another individual, it should be protected by government and not exploited through coercion.



You're kind of grasping at straws here UJ which is unlike you. If the laws are applied completely uniformly, than everyone will enjoy an equal level of protection.


You misunderstand. I am saying that some posters are making their arguments on the basis of a different type of liberty than was originally conceived by the liberal movement. Basically, certain principles are being misconstrued as that of liberty when in reality they are the offspring of other philosophies. But thats really for another debate. To this paragraph, one's property is just that. There is one essential question that we are arguing over: Whats more important? the freedom to buy/sell property with whomever you wish as long as it does not commit positive harm to a third party or the ability for a victim of discrimination to get a "fair" deal from the seller? But as I mentioned earlier, discrimination is a necessary aspect of any free society because it implies that there are choices that can be made. I have the choice what to buy and what not to buy. If I don't want Cocoa Puffs this week, I can pick up some Lucky Charms instead. The makers of Cocoa Puffs will be harmed by this decision, they will be discriminated against. With all this talk about discrimination by the seller, nobody thinks about discrimination made by the buyer. If a black family owns a home and a white family is a potential buyer, but the white family decides not to purchase the home (for whatever reason, even if on racial grounds) should the white family be compelled to buy the home if it is the best price/value? No! We would say that is ridiculous. Yet when the tables are turned we say that the seller should be coerced. Can someone explain?

I can provide a clear example of how this is false. In general terms federal drug sentencing guidelines are applied uniformly. Lets examine federal drug laws for a second... People convicted of crack-based crimes face substantially stiffer sentences and conditions than those convicted of cocaine-based crimes, even when the particulars are removed from consideration. The substance is the same, and both are among the same class of narcotics. Here we see the laws being applied uniformly, but because crack is cheaper and a drug favoured by the poor, the poor face harsher repercussions for committing what are essentially the same crimes as the rich. The wealthy (it can be said) enjoy greater protections from prosecution under the law than the poor for the use of cacao-based drugs.

Ok, I believe things are getting all mixed up and jumbled here, so allow me an attempt to understand. I argued that every person should receive equal protection under the law as per the US Constitution. You contended that the Constitution says something slightly different, that equal protection "of the law" is different than "under the law." If I interpret this correctly ( and forgive me if I am not), you are pointing out a difference between the laws applying equally to everyone and everyone being treated equally by those very laws, hence the crack v. cocaine example? Like I said, I am still failing to see your point and how it applies to the topic of discrimination and freedom. Also, perhaps you could address a question I asked in my previous post, why buyer discrimination is ok while seller discrimination is not?

Which has a greater tendency to cause hardship for a particular demographic?

Anti-discrimination laws may not be libertarian, but after seeing the studies one must admit they are exceedingly practical.

All of this has to do with placing ethical limits of all power centers in a society. Home ownership and rental are critical parts of the American life.

The private sector ought have no special right to engage in unethical behavior, to the detriment of society.