The Tyranny of Something or Other

You may argue that “society” collectively decides what to permit and not to permit, based on some vision of the “common good.” But remember those high school civics texts with the stuff about government exercising only powers delegated by the governed, government’s function being to protect the rights of the individual, and all that? Well, you can’t delegate a power you don’t have. And government can’t protect a right, on your behalf, that you don’t possess as an individual.

So you can’t delegate to government the power to tell other people what foods or drugs to ingest, or who to have sex with, unless you, as an individual, already have the right to boss other people around. You as an individual, or in acting together with any number of other individuals, cannot delegate to government the power to boss people around against their will in regard to peaceful and consensual actions, unless you own them. “Society” has a right to criminalize peaceful, voluntary behavior only if each individual is the property of society as a whole.

Kevin Carson

This reminded me of something I heard the other day on NPR (or it might have been the BBC World News; I can’t find the story on either website) about the tedious legal “wrangling” over the California court’s overturning of Prop 8 (the ban on gay marriage).  Some proponent of the ban—a politician, I think—was arguing that the reversal was somehow a violation of the Constitution and that the voters were getting screwed (or maybe it was a violation of the Constitution because the voters were getting screwed).

 Two things:

1) I love when politicians who (pretty much all of them) generally couldn’t be bothered to wipe their asses with the Constitution suddenly discover the sacred scrap of parchment when it suits their purposes.

2) I love when politicians who (pretty much all of them) generally couldn’t give two shits what “the voters” want suddenly discover the value of democracy during an election year.

For what it’s worth, I’m skeptical of both majoritarian rule and Constitution fetishism.  I’m with Carson in that I place individual rights above the will of the majority, regardless of what the Constitution has to say (or not say) about the matter.  Not that I expect anyone in power to care.

Why Regulations Are a Joke

This is sort of a companion piece to my teabagger post–more specifically, an expansion on my suggestion that maybe regulations themselves are part of the problem when dealing with corporate crimes.  I’ll let Kevin Carson explain (emphasis added):

Interestingly, an Alternet commentator on the Tea Party story wrote:  “I’m sure those people cheering every insane thing he [CEO Don Blankenship of Massey Energy] said at that rally will blame the government for failing to stop him, thus proving once again that it can’t do anything right.”

Well, yeah.  The mine safety and anti-pollution regulations, in this case, are a good illustration of why the corporate state replaced traditional tort liability standards under the common law with a regulatory state in the first place.

Now, you’d think tort liability for the full damages of wholesale devastation of the entire countryside, the poisoned water and coal dust, the deaths from gross negligence, and all the rest of it, would seriously undermine the profitability of mountaintop removal.  And you’d be right.

That’s exactly what the regulatory state was created to avoid.  Let’s look at a little history.  I can’t recommend strongly enough “The Transformation of American Law,” by Morton Horwitz.  According to Horwitz, the common law of tort liability was radically altered by state courts in the early to mid-19th century to make it more business-friendly.  Under the traditional standard of liability, an actor was responsible for harm that resulted from his actions — period.  Negligence was beside the point.  Courts added stricter standards of negligence and intent, in order to protect business from costly lawsuits for externalities they might impose on their neighbors.  The regulatory state subsequently imposed far weaker standards than the traditional common law; the main practical effect was to preempt what remained of tort liability.  A regulatory standard amounts to a license to commit torts below the threshold of that standard, and lawsuits against polluters and other malfeasors can be met with the defense that “we are fully in compliance with regulatory standards.”  In some cases, as with food libel laws or product disparagement laws, even voluntarily meeting a more stringent standard may be construed as disparagement of products that merely meet the regulatory standard.  For example, Monsanto has had mixed success in some jurisdictions suppressing the commercial free speech of those who advertise their milk as free from rBGH; and conventional beef producers have similarly managed in some cases to prevent competitors from testing for mad cow disease more frequently than the law mandates.

So a class action suit against a coal mining company for the public nuisance created by mountaintop removal could be thwarted by simply demonstrating that the operation met EPA regulatory standards, even if such operations caused serious harm to the property rights and quality of life of the surrounding community.

This is why I have to laugh whenever I hear some politician–or, worse yet, some d0-gooder “progressive”–braying about the need for more stringent regulations of this or that industry.  I mean, shit.  Who do you think is going to be in the room, campaign donation check in hand, when these things get written?

Back to Carson:

I think it’s fair to say that Mr. Blankenship is one of the most loathsome pigs ever to contaminate the Earth with his presence.  And the dumbed-down regulatory state — by offering wrist-slap fines worth a tiny fraction of the harm caused by his terrorism, as a substitute for free juries of his neighbors nailing his scrote to the wall for his crimes — has played a key role in enabling him.

Whole article here.