Let's Legalize It: Bone Marrow and Kidneys
1. Bone Marrow - "The U.S. Court of Appeals for the Ninth Circuit ruled that the majority of bone-marrow donors may lawfully be compensated. In a unanimous ruling, the court rejected the position of the U.S. Department of Justice that obtaining bone-marrow stem cells through a needle in a donor's arm—in much the same way that blood plasma and platelets are collected—violates the ban on paying for organs established by the 1984 National Organ Transplant Act (NOTA).
"The ruling could save hundreds or thousands more lives a year," according to Jeff Rowes of the Institute for Justice, who was lead counsel on the case.
The decision has broad implications for transplant policy in general because it underscores the profound weakness in our altruism-only transplant policy—not only relating to bone marrow, no matter how it is collected, but also for the thousands who die each year awaiting a kidney, liver, heart or lung. As the judges pointed out, there is no logical basis for allowing compensation for blood, sperm and eggs while disallowing bone-marrow cells obtained through apheresis."
~Sally Satel in today's WSJ, "A Lifesaving Legal Ruling on Organ Donation"
2. Kidneys - "This is a serious problem, because there aren’t nearly enough saints in the country to tackle the growing waiting list for a kidney. More than 34,000 people joined the waiting list in 2010; fewer than 17,000 received one. Thousands of people die waiting each year.
This is a tragedy, but it doesn’t have to be this way. The people waiting for kidneys aren’t dying because of kidney failure; they’re dying because of our failure — without Congress’s misguided effort to ban organ sales, they would have been able to get the kidneys they desperately needed.
People should not have to beg their friends and family for a kidney, nor die while waiting for one. Donating a kidney is one way to help. But it isn’t enough. The only way to really change the terms of the debate and end the waiting lists is to end the ban on compensation and create a legal market for kidneys."
~Alexander Berger in Monday's New York Times, "Why Selling Kidneys Should Be Legal"
85 Comments:
How about this.
Instead of money - free medical care?
If you donate bone marrow or kidney... then you receive free or reduced medical care.
that way - you remove the concern about people selling so they can buy cars or big screen TVs and then later on expect "free" medical care when they need a kidney....or bone marrow transplant.....
larry-
that sounds like a pretty flawed plan to me.
1. so who pays for that?
2. there seems to be some real adverse selection there. those who most want free care are going to be people who need a lot of expensive care. this makes them a costly group to cater to, even assuming they are health enough to give an organ.
3. it would wind up costing more in the long run. if you spend $6k a year on healthcare, a 30 year lifespan would be $180k. if you gave at 30, you could easily cost more like $300k.
4. why make a federal program out of what ought to be a personal transaction? it's your kidney. you ought to be able to give it to whomever you like or trade it for whatever others will pay.
Morg it does not have to be a govt program though I admit in the real world..they would be involved because at the root of this issue is whether or not something is legal and/or moral.
but depending on the market price for a kidney or bone marrow - it may well be cheaper for a hospital to offer care rather than money.
I'm not advocating this - yet.. still trying to understand what it might mean or how it might work ..or what it's flaws are..
that's why I threw it open to comments..
and yes...
we're looking for real world practical solutions - that are politically acceptable not theoretical "perfect" solutions where we make perfect the enemy of good.
"but depending on the market price for a kidney or bone marrow - it may well be cheaper for a hospital to offer care rather than money."
but this sort of misses the point which is that the hospital is paying for he kidney, but hey are not the beneficiary. why would they want to shoulder such costs?
to my mind, this is really, really simple.
it's your kidney. i honestly cannot think of any piece of property more clearly and intimately yours than one of your organs.
if it's your property, why can't you do with it as you wish?
arguments about "well, people will get kidnapped and organ harvested" sound awfully far fetched to me. such does not happen in places like iran where you can sell a kidney legally, nor did it happen in the us before the law was passed.
banning used car sales might cut down on car theft too, but that seems like using a flamethrower to kill a mosquito.
i really don't see any solution as practical or easy as just letting people have rights to their property.
the "well only the rich benefit" argument also seems flawed. if legal, insurers could cover the price of a kidney just as they cover the price of a pacemaker.
why use complex solutions where a simple one will work?
also:
if you have a free right to sell your kidney, sure, you could sell it for a promise of healthcare if you wanted. you are free to set your own price and currency.
but why limit it to that?
" why use complex solutions where a simple one will work? "
a good point but again if you want a practical and feasible solution you have to deal with the problem that poor people without insurance will sell their organs and then later on expect free care.
why not let the poor get insurance and at the same time satisfy the moral questions that keep such a solution from happening?
this is sort of like the health savings account conundrum.. ( in a loose way).
and that is the govt will give you a tax break on HSA but at the same time restrict it's use to what they approve of.
"arguments about "well, people will get kidnapped and organ harvested" sound awfully far fetched to me"...
Well morganovich I also agree that it sounds far fetched but then again is their a possibility?
Obviously anything is possible but probable, well that's a different story...
Consider this two year old posting on a site called Online Nursing Programs:
10 Truly Shocking Facts About Organ Trafficking
Mind you, some of these stories I've heard of before the internet was so ubiquitous...
"why not let the poor get insurance and at the same time satisfy the moral questions that keep such a solution from happening?"
this seems like it apportions costs and benefits in a weird way though.
you sell a kidney which benefits a recipient, but somehow the hospital is the one that bears the cost.
how would that work?
why would a hospital want to shoulder such costs? they would just pass them on leaving us in the same place as before but without resolving the issue of "why can't i do with my own kidney as i wish".
an hsa is a bit different as you can save for medical contingencies in any bank account you like.
hsa is just tax treatment. the feds say "put money in this account and it's tax free but it comes with certain restrictions" but they never tell you you can't just save money in a regular account, which seems to be what you are suggesting for kidneys.
juandos-
note that pretty much none of those stories come from countries with much in the way of rule of law.
and hell, it's already going on, so you have to take it as a given.
to be persuasive, you'd need to show that either rates go up in a country like iran where it is legal (and that is not the case) or that rates went down after the laws passed in the 80's and i don't think that's true either.
you are essentially advocating getting rid of property rights to stop theft. banning used car sales and sales of car parts might decrease auto theft, but is it really worth it?
and a kidney is MUCH easier to track than a side panel from a corolla. you just need documentation and basic care about dealing in stolen goods. there is nothing difficult about setting up such a system.
the hospital would have to buy the kidney ... so instead they offer health insurance for the kidney.
it has no effect on the cost of the kidney to the hospital/patient and the "in-kind" payment limits the monetary motive to something that will benefit the donor - and society in terms of future health care costs.
one of the other "perks" would be that donors would be given priority "free" access to organs themselves if the need arose.
so I'm on board with the idea of incentivizing.. in fact so much that I feel that finding a practical and feasible way of making it happen is worth it ...
but I don't think it will happen without something that satisfies the current objections...
If I had a choice between current laws and Larry's plan (let's say compensation going in to a HSA) I'll take Larry's plan and hope that opens the door to more freedom.
It wouldn't have to be 'free health care' it could be a one-time payment to a HSA. The plan may be flawed but it's certainly better than what we have. And, let's face it, if poorer people tend to sell more kidneys, maybe they'll start paying their medical bills (at least until their compensation runs out)... could save us all a lot of money.
l-
"the hospital would have to buy the kidney ... so instead they offer health insurance for the kidney."
i think you are missing the point of my question. why would the hospital buy the kidney? they are laying out money for something that goes to you. if they just mark it up and pass it along to the patient as cost, how is that any different than just selling a kidney directly except that:
1. it violates the property rights of the kidney seller
2. it makes the market for kidneys smaller, as you cannot get cash and not everyone wants healthcare as opposed to greenbacks
why take away rights and limit the ability to get cash while stunting a market?
it seems to me that your plan is just playing social engineer and economy planner. let the kidney's owner decide what he'd trade it for.
what "objections" are you thinking of?
seems to me that to stop taking away the rights of the individual and giving them more options is not terribly objectionable.
no one is going to make people sell kidneys, it's just an option. how can having that option make anyone worse off?
"the hospital would have to buy the kidney ... so instead they offer health insurance for the kidney."
i think you are missing the point of my question. why would the hospital buy the kidney?"
because like other materials that they buy to install on patients.. they need to assure/insure that it's a good match... etc...
I do not think you want patients themselves going kidney "shopping" ....right no more than they'd go shopping for the best stent or bypass stuff.
"they are laying out money for something that goes to you. if they just mark it up and pass it along to the patient as cost, how is that any different than just selling a kidney directly except that:
1. it violates the property rights of the kidney seller"
I just don't think we're at the point...logistically where this can be done.
at some point the hospital and doctor have to enter the equation.
"2. it makes the market for kidneys smaller, as you cannot get cash and not everyone wants healthcare as opposed to greenbacks"
yes... agree.. but the vast majority of people in this country are not yet ready for that kind of market..so you start slowly ... and let people get used to the concept before widening it.
"why take away rights and limit the ability to get cash while stunting a market?"
I've said before. I'm interested in practical...and feasible approaches.. that work..not ideological / revolutionary concepts that will not go forward.
"it seems to me that your plan is just playing social engineer and economy planner. let the kidney's owner decide what he'd trade it for."
I just don't think people right now are going to accept that premise - straight up.
you need to get the basic market going, with restrictions then once it operates...make changes that people become comfortable with.
"what "objections" are you thinking of?"
I think there will be concerns that people will be selling their organs ...for big screen TVs and BMWs and I just don't think that concept will fly right now.
"seems to me that to stop taking away the rights of the individual and giving them more options is not terribly objectionable.
no one is going to make people sell kidneys, it's just an option. how can having that option make anyone worst"
if you REALLY want to make progress on things like this - the way to success is baby steps...not revolution....
that's obviously IMHO.
by the way Morg - let me compliment you on being willing to trade debates points without getting nasty and insulting.
I'd like to see that behavior spread on CD and convince some of the bad boys here to do a better job.
The solution to this problem seems so obvious it is hard to imagine why we don't just implement it and be done with it.
All we have to do is to say that anyone who becomes a donor goes to the front of the line for a transplant should they need one.Of course there would need to be a waiting period - not sure how long - maybe 5 to 10 years.
Now everyone is incentivized to become a donor - no buying of organs needed.
What's wrong with this approach?
Yevgeny,
"Now everyone is incentivized to become a donor - no buying of organs needed."
Wouldn't that just put us back to where we are now, if everybody is at the front of the line?
Larry,
"....big screen TVs and BMWs ...."
I don't think this is the big concern. I think the same people who want to close down 3rd world factories with low wages (resulting in no wages) are the same people who think it's wrong to sell organs for food and shelter (resulting in no food or shelter for said organs).
Purchasing these organs is not an issue and I'm not sure why Morg has a hang-up about it....whoever would pay for organs would be the same person/organization that puts the money into a HSA for the seller. If the seller wants to buy food or a BMW with the money they are no longer spending on health care, so be it.
well.. I think you will have to convince quite a number of people and organizations to allow this.
just out of curiosity are there other countries in the world that do allow selling organs?
"Instead of money - free medical care?"
What's the difference? Medical care = money. Why should anyone be concerned about how someone spends their own money?
"a good point but again if you want a practical and feasible solution you have to deal with the problem that poor people without insurance will sell their organs and then later on expect free care."
That part is the problem, not what comes before it. what hasppens now when a poor person donates a kidney?
"why not let the poor get insurance and at the same time satisfy the moral questions that keep such a solution from happening?"
What moral question? poor people asking for free healthcare is an economic question, just as it is after they donate a kidney.
Why do you believe someone should tell you that you can't sell your kidney, because you might ask for free care later? Aren't you able to manage your own life, and shouldn't you do as you please with your kidney?
it's not what I believe.
it's the reality of what it would take to move to that kind of a system and to address the things that would keep it from happening.
you're always talking in theoretical and ideological terms... such a firebrand!
half a loaf is better than no loaf.
people are receptive to the idea that we need a better system but they're just not going to go for an unregulated market in organs.
that's the reality.
deal with it.
if you're really interested in moving the ball forward.. even if not as far as you'd like - then you work on the steps....
because that's how change actually comes about.
like it or not... you need to convince a majority of people for this to happen... and even then it's uphill... just look at trying to get pot decriminalized.
are there countries in the world that allow this right now?
Yes, Larry...that bastion of freedom...Iran. True. Iran has cut down on organ shortage dramatically.
Israel and Holland are moving that way.
how about some links?
Of course.. what goes on in Iran won't be a motivation...but maybe Holland (although they are pretty liberal).. and Israel... that would affect us....
as I said ... I think quite a few people would support something... but not unregulated...
they are going to be concerned that people are going to sell their organs because they are out of options...
are you talking about live or dead donors?
what Constitution or law is the ban based on?
anyone know?
Google it. I read it in Freakonomics a while back and it's still on their blog - and it's for live donors. I, for one, think that's a great thing for those who are out of options...better to have a crappy option than none at all.
I understand that this is no compensation to a parent who has lost a child, but I also believe the gov't should allow parents to keep the child deduction (until the year that their child would no longer be eligible) if they donate their child's organs....Naturally, I'm sure people will object due to the incentive to murder one's child....so I'll propose a no murder clause.
so.... you support the regulation approach, right?
Oh, I can't imagine this without heavy regulation....even if we were allowed to sell/trade our organs on the open market. I don't believe that the gov't is effective or efficient, but I do believe it's the only way to do this.
I'd rather have some gov't jerk screwing things up over unregulated organ sales.
we agree.
It's a Christmas miracle :)
indeed! :-0
By the way, Larry, I just thought of a way that your plan might actually work under current rules (not that I know all the laws):
What if the recipient paid (let's say) $20,000 into the donors HSA to use in the finest hospital in the world to have their surgery, follow-ups and for future 'unforeseen issues'. If they choose to donate at a normal hospital in a double occupancy room, it just stays in their account.
that's the way I think... but the devil can get in the details...but in general... come up with an approach that defuses the moral/other concerns (that would derail it) and make it a win-win for all parties (get support).
but we don't want kids selling their kidney's so they can afford college tuition and the like..(I don't think).
with the HSA approach ( not the only way).. you'd give the recipient and the hospital a quick and morally-acceptable (subjective) way to go forward.
I'm not sure how this would work for the indigent.. already receiving MedicAid, etc...
but the reality already is that folks can fly to less regulated countries to effect a deal.
larry-
"as I said ... I think quite a few people would support something... but not unregulated..."
that is a majority rules argument, not a rights argument. the whole point of right is that they cannot be taken away by majority rule.
if 51% tell 49% that they cannot speak out against the president, that would be ok? who cares what the majority wants? it's your property. why can't you do with it as you wish?
"they are going to be concerned that people are going to sell their organs because they are out of options... "
this is a very weak argument. you can sell your car or your home or go into crushing debt because you are "out of options" but not your kidney? please explain the difference to me.
the whole notion of "out of options" is a completely false idea.
so now, you "run out of options" and you are just screwed, but giving someone another option (though they certainly need not take it) is somehow bad?
aren't you essentially arguing against freedom because you fear others will not use it in a way that YOU like. that's pretty much tyranny, no?
substitute speech for kidney sales and the logic of your argument gets very, very clear.
who are you to decide what's worth it to someone? they may need to pay for something very urgent (like a sick child) and you want to take away their only option by telling them they are not to be trusted with a choice? that sounds terribly paternalistic.
so they sell a kidney, it saves one kid, and then they can save their own. and the harm is what?
it sounds to me like deep down you just think that you know how other people should behave better than they do.
" "as I said ... I think quite a few people would support something... but not unregulated..."
that is a majority rules argument, not a rights argument. the whole point of right is that they cannot be taken away by majority rule.
if 51% tell 49% that they cannot speak out against the president, that would be ok? who cares what the majority wants?
it's in our Constitution guy.
we are a representative form of govt.
we vote for Congress and the President and the SCOTUS rules by majority vote.
" it's your property. why can't you do with it as you wish?"
because we live in a country where your defined rights in the Constitution affect your "natural" rights... which the Constitution does not protect in the same way as it does your defined rights.
"they are going to be concerned that people are going to sell their organs because they are out of options... "
"this is a very weak argument. you can sell your car or your home or go into crushing debt because you are "out of options" but not your kidney? please explain the difference to me."
I actually agree with you but it's a practical aspect ..a political calculus.
"the whole notion of "out of options" is a completely false idea.
so now, you "run out of options" and you are just screwed, but giving someone another option (though they certainly need not take it) is somehow bad?"
in a lot of people's minds, yes.
"aren't you essentially arguing against freedom because you fear others will not use it in a way that YOU like. that's pretty much tyranny, no?"
no. I'm arguing FOR change but recognizing and accepting the impediments that are real.
"substitute speech for kidney sales and the logic of your argument gets very, very clear."
easy example: at what age can you sell your kidney?
example 2: a guy is dying and wants to leave something to his kids so he auctions his kidney instead of letting it get donated after his death.
"who are you to decide what's worth it to someone? they may need to pay for something very urgent (like a sick child) and you want to take away their only option by telling them they are not to be trusted with a choice? that sounds terribly paternalistic."
it's not me guy.
you have to deal with the simple fact that we elect governance in this country. It's defined as the way our Country was founded to be governed.
"so they sell a kidney, it saves one kid, and then they can save their own. and the harm is what?
it sounds to me like deep down you just think that you know how other people should behave better than they do."
nope.
here's the basic tyranny of the majority.. conundrum...
the law does not say that majority vote is wrong/illegal/incorrect or anything else EXCEPT if a law applies to one group of people but not another.
As long as the law applies to everyone.. then the protection of the minority is deemed satisfied.
not my opinion but the rule of law.
re: majority rule and free speech
Morg - if a majority says that you cannot threaten the President without being charged...convicted... does that abridge "free speech"?
how about this. Treason. Advocating the violent overthrow of the govt.
is that a right..a "natural right" or a "defined right"?
I don't profess to have the truth.. just an opinion .. that can be changed if someone offers a perspective that I had not considered.
so offer away....
"it's in our Constitution guy.
we are a representative form of govt."
um, no, we are not. we have a bill of INALIENABLE rights. that means you cannot take them away from me, even if 99% of you agree.
"because we live in a country where your defined rights in the Constitution affect your "natural" rights... which the Constitution does not protect in the same way as it does your defined rights."
this doesn't make any sense. i have no idea what you are trying to say.
""this is a very weak argument. you can sell your car or your home or go into crushing debt because you are "out of options" but not your kidney? please explain the difference to me."
I actually agree with you but it's a practical aspect ..a political calculus."
then how can you possibly argue for what you do. political calculus trumps rights? in such a case, you do not really have rights.
"in a lot of people's minds, yes."
so what? that's totally irrelevant. lots of people think homosexuality is wrong too, shall we ban it? don't like it, don;t do it, but taking away the rights of others to suit your views is called tyranny.
"it's not me guy.
you have to deal with the simple fact that we elect governance in this country. It's defined as the way our Country was founded to be governed."
not so at all. we have RIGHTS here. they should never be subject to the whims of the demos.
and it is you, as you champion such things/support them because they exist.
saying "this is how it is" says nothing about whether it is right.
you could have used that argument against woman's suffrage.
"the law does not say that majority vote is wrong/illegal/incorrect or anything else EXCEPT if a law applies to one group of people but not another.
As long as the law applies to everyone.. then the protection of the minority is deemed satisfied."
that is absolutely, utterly wrong. by your logic, we could have a law against speaking in favor of abortion so long as it applies to all equally. that is most definitively NOT the case. rights supercede such things and must or else democracy becomes just another form of tyranny.
"Morg - if a majority says that you cannot threaten the President without being charged...convicted... does that abridge "free speech"?"
yes.
"how about this. Treason. Advocating the violent overthrow of the govt."
advocating the violent overthrow of the government is not treason, nor even illegal. ask the black panthers etc. it's actually doing somehting about it that's illegal.
think about it this way larry, what do you legally own that you are not allowed to sell?
it comes down to very simple questions:
do you believe in private property?
do you believe you should be able to dispose of your property (including selling it) as you wish?
is your kidney your own property?
unless you can come up with a reason to say no to one of those 3 questions, you really cannot oppose selling kidneys.
it's really as simple as that at a basic, philosophical level.
all arguments about majority view and political calculus are irrelevant.
if 51% voted that you are not allowed to sell your legally owned couch, you'd find it ridiculous, tyrannical, and absurd.
maybe you'd sell it badly or in desperation or to fuel a horrific case of alcoholism or gambling addiction. maybe it's a "bad" outcome to the views of many.
but hey, that's freedom for you.
"we are a representative form of govt."
um, no, we are not. we have a bill of INALIENABLE rights. that means you cannot take them away from me, even if 99% of you agree."
is that the reality?
"because we live in a country where your defined rights in the Constitution affect your "natural" rights... which the Constitution does not protect in the same way as it does your defined rights."
this doesn't make any sense. i have no idea what you are trying to say."
the Constitution DEFINES rights - which are not the same as what some people view as NATURAL rights.
""this is a very weak argument. you can sell your car or your home or go into crushing debt because you are "out of options" but not your kidney? please explain the difference to me."
I actually agree with you but it's a practical aspect ..a political calculus."
then how can you possibly argue for what you do. political calculus trumps rights? in such a case, you do not really have rights."
because of realities... if you want to change.. you have to acknowledge the things that will stop you.
"
"in a lot of people's minds, yes."
so what? that's totally irrelevant. lots of people think homosexuality is wrong too, shall we ban it? don't like it, don;t do it, but taking away the rights of others to suit your views is called tyranny.
"it's not me guy.
you have to deal with the simple fact that we elect governance in this country. It's defined as the way our Country was founded to be governed."
not so at all. we have RIGHTS here. they should never be subject to the whims of the demos."
reality vs ideology or theory?
"and it is you, as you champion such things/support them because they exist.
saying "this is how it is" says nothing about whether it is right.
you could have used that argument against woman's suffrage."
indeed it was.. and against slaves gaining freedom and 18 yr olds voting... and prohibition and automatic weapons, etc, etc, etc.
"the law does not say that majority vote is wrong/illegal/incorrect or anything else EXCEPT if a law applies to one group of people but not another.
As long as the law applies to everyone.. then the protection of the minority is deemed satisfied."
that is absolutely, utterly wrong. by your logic, we could have a law against speaking in favor of abortion so long as it applies to all equally. that is most definitively NOT the case. rights supercede such things and must or else democracy becomes just another form of tyranny."
again.. from a practical reality...
you're arguing something that does not reflect the realities...
the balance is between your rights - and the rights of others.
when your rights intrude on others rights.. laws get created...
that's the reality.
even if it means some rights are in effected abrogated.
"Morg - if a majority says that you cannot threaten the President without being charged...convicted... does that abridge "free speech"?"
yes.
"how about this. Treason. Advocating the violent overthrow of the govt."
advocating the violent overthrow of the government is not treason, nor even illegal. ask the black panthers etc. it's actually doing somehting about it that's illegal.
"think about it this way larry, what do you legally own that you are not allowed to sell?
it comes down to very simple questions:
do you believe in private property?"
yup. but you're not allowed to own and sell anything..that's a reality...
right?
"do you believe you should be able to dispose of your property (including selling it) as you wish?"
in a world where it's illegal to own certain things.. and to sell certain things.. what is the practical reality?
More important - let's assume you are 100% correct and our current form of governance is wrong.
how do you change it?
little by little..or an overnight revolution?
"is your kidney your own property?"
according to you or the country you live in and the govt of that country.
"unless you can come up with a reason to say no to one of those 3 questions, you really cannot oppose selling kidneys.
it's really as simple as that at a basic, philosophical level."
on a philosophical level - I'd grant you the point but in the real world.. it don't work that way ..and probably never will.
"all arguments about majority view and political calculus are irrelevant.
if 51% voted that you are not allowed to sell your legally owned couch, you'd find it ridiculous, tyrannical, and absurd."
yup.... but that's usually the price of govt and governance. I know of no governments that operate the way you say they should.
agree?
"maybe you'd sell it badly or in desperation or to fuel a horrific case of alcoholism or gambling addiction. maybe it's a "bad" outcome to the views of many.
but hey, that's freedom for you."
I don't disagree - on a theoretical basis.
but how do you reconcile this in the world we live in?
Are you after change...?
Are you a permanent opposition?
how do you reconcile your position with regard to the real world?
Are you familiar with the AA creed?
God, grant me the serenity to accept the things I cannot change,
Courage to change the things I can,
And wisdom to know the difference.
"yup. but you're not allowed to own and sell anything..that's a reality...
right?"
why? how can you not own your kidney? if it's legal to own, it's legal to sell.
you keep appealing to "practical reality" like that means somehting. it doesn't. one bad law does not justify another.
again, how can it possibly be illegal to own your own kidney?
if you don't own it, who does?
"according to you or the country you live in and the govt of that country."
according to basic first principles that derive from a belief in private property. i'm looking at a bedrock philosophical notion here. who could possibly own your kidney other than you?
if it's legal to own, what possible basic justification can there be for not being able to sell it? quoting some silly drug law where you can own pot but not sell it would demonstrate nothing apart from the fact that there are stupid laws.
"More important - let's assume you are 100% correct and our current form of governance is wrong.
how do you change it?"
our current form of government has property rights and the law on kidney sales violates it. nothing has to change, we just need to strike down an unconstitutional law and stop making appeals to other bad laws to try to justify it.
"on a philosophical level - I'd grant you the point but in the real world.. it don't work that way ..and probably never will."
it already does. look at iran. that's a pitifully weak argument. it's incredibly easy to change. the supreme court could do it at a stroke. arguing "well, the real world is not as good as it should be, live with it" is precisely how every crappy policy gets defended from those who would seek liberty and justice. hell, they made that argument about the divine right of kings.
"yup.... but that's usually the price of govt and governance. I know of no governments that operate the way you say they should.
agree?"
not at all. again, you take the side of inertia and imperfection to avoid making useful changes.
that is most decidedly NOT the price of government and governance, nor is appealing to such a valid reason to resist liberty enhancing refinements.
sure, nothing is perfect, but you are using that fact to resist striving towards it, which, to my mind, is the rationale of a tyrant.
"don't disagree - on a theoretical basis.
but how do you reconcile this in the world we live in?
Are you after change...?
Are you a permanent opposition?
how do you reconcile your position with regard to the real world?"
again with the "real world" nonsense. this seems to be your answer to everyhting. "hey, this is how it is, so you cannot do better" which is absurd. that's certainly not the premise on which the US was founded.
what is it you find so difficult to accept about liberty? you give it to people and they use it. so long as it does not infringe on the rights of others, that's that. they can use it well or badly, but it's up to them. you don't get to play paternalistic dictator, even with benign intentions and save them from their liberty.
you sound like Dostoevsky's grand inquisitor berating jesus for seeking to give people freedom because they are "better off being controlled".
the AA creed is irrelevant.
would you have told the subjects of the crown that they can't change it and thus should accept it? this is terribly easy to change.
nothing really has to happen other than our laws being brought into accord with the constitution we already have.
you really have not answered any of the question i posed.
you say you believe in private property. let's leave aside illegal items for a moment, it's clearly legal to own a kidney (or even 2) else we are all criminals.
so you own it, it's legal.
part of private property is being able to sell it. you can, right now, give away your kidney, or take it out and put it in a jar on the mantle.
you have given no even slightly plausible reason to abridge your right to sell it.
nor have you given any even remote reason that it is not your property.
you are the one who champions treating all equally under the law. so why not treat all property equally?
your position seems completely inconsistent and essentially just a smokescreen of a hodgepodge of "this is how it is" and "the real world" none of which really makes any sense.
try thinking of it this way:
you are a supreme court justice.
i bring a case before you calming that the law banning kidney sales is unconstitutional and inconsistent with our notions of private property.
what possible argument could you make that i was wrong?
i'm not talking about some sort of radical change here, i'm talking about following the constitution we have already.
you are trying to flip it around and make the notion of saleable property some sort of radical idea, but it's not.
so justice larry g, what would you say? on what basis could you tell me that my kidney is not legally mine or that i cannot sell my own property if i choose?
will you legislate from the bench and create a special case and take away my liberty for my own good?
how would doing so not be both tyrannical and counter to the purpose of the SCOTUS. you are to interpret, not legislate.
i think you may rapidly see that you are the one proposing a departure from our constitution and founding principles around natural rights, not me.
Morg,
I should know better than to argue with you, but....
"we have a bill of INALIENABLE rights. that means you cannot take them away from me, even if 99% of you agree"
Last I heard, these are life, liberty and the pursuit of happiness....all 3 of those can, and are, taken away with public opinion much lower than 99%...and this debate almost proves the loss of all three.
I think Larry and I are on the same page, meaning we totally agree with you that this should be our right - but it isn't. So, how do you make a step in the right direction?
Years ago, I had the same sort of argument with my gay friends in SF. I told them that they should be putting their effort into civil unions and they were offended. But when their champion, Gavin Newsom, demanded the perfect rather than good, the backlash was severe and, I believe, set them back a decade...just when they were on the verge of success.
Sometimes you have to show the masses that the sky won't fall, little by little, before you can make any real progress.
You're telling us what's wrong, but we already know what's wrong. The filtering of compensation through HSA's is just an idea. Do you have one?
I'm on board with most of what Morg advocates but my view is if you are REALLY interested in having change happen.. you have to move less fast than you'd prefer.
It took a long time for women to get the vote, for slaves to become free persons... for 18yr olds to get the vote.. for prohibition to be repealed...etc..
I guess you can call it tyranny of the majority...
hell you can call it what you want... but getting change to happen takes more than insisting it's wrong and must be made right - right now - ESPECIALLY when it will undoubtedly take legislation ... elected folks ..held accountable by voters...
that's why I feel you need to 1. deal with the objections - even if you don't agree with them and 2. "sweeten the deal" so you win over supporters..
I think the kidney deal is one in which most everyone would agree that shortages are not good.... and they are ready to do ...something... but not something too radical...
it may take years for momentum to reach the tipping point but it will.
Mike: "Last I heard, these are life, liberty and the pursuit of happiness....all 3 of those can, and are, taken away with public opinion much lower than 99%...and this debate almost proves the loss of all three."
"...and among those are life, liberty, and pursuit of happiness."
The Bill of Rights acknowledges and affirms rights that already exist, and forbids government to interfere with them. There are no rights conferred by the Constitution.
While no restrictions are placed on individuals, many restrictions are placed on government. The Constitution spells out exactly what specific powers federal government is granted, and clearly explains that any powers not explicit, are reserved to the States and to the people.
It seems pretty clear, but for some reason there's a lot of confusion about it. It's amazing how many things people claim are in the Constitution, when they have no idea.
It seemed like a great idea, but apparently hasn't been sufficient to constrain the inevitable growth of government power.
As for taking away rights, one can be held accountable for invading the rights of others. You forfeit your own rights when you do so. This is the basis of common law.
"I'm on board with most of what Morg advocates but my view is if you are REALLY interested in having change happen.. you have to move less fast than you'd prefer."
But you haven't answered any of his questions. If you are MOSTLY on board, what parts don't you agree with?
"Go slow so as not to upset people", isn't much of a response.
It's OK to have principles, and stand on them. If you think something is wrong, you should say so. If you feel slavery is wrong, would you advocate taking it slow and "sweetening the deal" to gain supporters, or would you say "Slavery is just flat wrong", and stand on that principle?
Your pseudo-pragmatist argument of "real world" is pretty lame.
If you own yourself, including your kidneys, and have a right to do as you wish with your own property, and you can give away that property, why can't you sell it?
What's your answer to that, Larry?
"I guess you can call it tyranny of the majority..."
I could and I do. It's wrong, as is tyranny of every other kind.
"the Constitution DEFINES rights - which are not the same as what some people view as NATURAL rights."
The Constitution affirms some of our rights, and forbids government to interfere with them.
morganovich: "if 51% tell 49% that they cannot speak out against the president, that would be ok? who cares what the majority wants?"
you: "it's in our Constitution guy."
No, it isn't.
"easy example: at what age can you sell your kidney?"
When you can make all other decisions for yourself. This isn't a number of years old.
"example 2: a guy is dying and wants to leave something to his kids so he auctions his kidney instead of letting it get donated after his death."
Whats your point here? A kidney owner should be able to do whatever they want with it. are you objecting to the difference between the price at auction and the price of the donation? Or do you object to a person deciding who gets their kidney?
"If you own yourself, including your kidneys, and have a right to do as you wish with your own property, and you can give away that property, why can't you sell it?
What's your answer to that, Larry? "
for the same reason your free speech does not allow you to shout fire in a theater or threaten the POTUS or a 13-yr old sell her body for sex.
your defined rights and your undefined "inalienably" rights are not absolute or without restrictions deemed necessary for the health and welfare of the country.
the "tyranny" of the majority - any and all words to effect are challenged every time the SCOTUS takes a vote - no?
larry-
"that's why I feel you need to 1. deal with the objections - even if you don't agree with them and 2. "sweeten the deal" so you win over supporters..
I think the kidney deal is one in which most everyone would agree that shortages are not good.... and they are ready to do ...something... but not something too radical...
it may take years for momentum to reach the tipping point but it will."
what i am objecting to is you approach and its underlying assumption that this should be based on democracy, not rights.
this could be settled in one supreme court case.
the problem is that such a case is difficult to encourage as the timeframe for getting it to scotus so far exceeds that of a needy kidney recipient, that no one has bothered.
it strikes me as a great project for a patient's or constitutional rights advocacy group.
your argument about threatening the president is a poor one. that should be legal. appealing to one abuse of rights to justify another is not a valid argument.
yelling fire in a theater is a bit different. the legality of it ought to has nothing to do with speech but rather, endangering/harming others.
its' like libel. you can say it, so long as it is true, but if it is false and harms others, then you face responsibility for that harm.
freedom of speech is not the same as freedom from consequence. you are free to call your boss a pinheaded jerk, but that's going to have consequences, just as using speech to yell fire has consequences as well and you ought to be held responsible for the direct harm you do.
a 13 year old has not yet reached the age of majority. children do not have the rights/obligations of adults.
now stopping at 18 year old from consensually engaging in prostitution is absurd to my mind. it's his/her body, thus his/her call.
coercing someone and forcing them to do it is totally peripheral. that is a separate crime as it infringes their rights.
mike-
you are mistaking the declaration of independence for the constitution.
the constitution, as ron points out, enumerates a number of specific rights. more important, it acknowledges that those rights stem from your personhood, not from governmental fiat, and thus cannot be taken away by government. that is what makes them inalienable.
courts and politicians try to tinker with this all the time, but that does not make it right or desirable.
the role of the courts is supposed to be to uphold and defend those right from encroachment by other people and by government.
to my mind, they have not done a good enough job and have become overly politicized, but that is hardly a reason not to strive in the other direction.
"what i am objecting to is you approach and its underlying assumption that this should be based on democracy, not rights.
this could be settled in one supreme court case."
majority vote, right?
"the problem is that such a case is difficult to encourage as the timeframe for getting it to scotus so far exceeds that of a needy kidney recipient, that no one has bothered.
it strikes me as a great project for a patient's or constitutional rights advocacy group."
it might be but the point is that ultimately the case would be decided by a majority vote - as specified by our Constitution.
"your argument about threatening the president is a poor one. that should be legal. appealing to one abuse of rights to justify another is not a valid argument."
it's a practical one...a real world one..that applies in a widespread way....
"yelling fire in a theater is a bit different. the legality of it ought to has nothing to do with speech but rather, endangering/harming others.
its' like libel. you can say it, so long as it is true, but if it is false and harms others, then you face responsibility for that harm."
freedom of speech is not the same as freedom from consequence. you are free to call your boss a pinheaded jerk, but that's going to have consequences, just as using speech to yell fire has consequences as well and you ought to be held responsible for the direct harm you do."
if not mistaken a case like this went through the courts on the basis of free speech and a decision was made that free speech "can" be restricted ..it is not absolute and without restrictions.
"a 13 year old has not yet reached the age of majority. children do not have the rights/obligations of adults."
who says on what basis?
"now stopping at 18 year old from consensually engaging in prostitution is absurd to my mind. it's his/her body, thus his/her call."
who decides this and on what basis?
"coercing someone and forcing them to do it is totally peripheral. that is a separate crime as it infringes their rights."
agree
"majority vote, right?"
that's pretty disingenuous. the supreme court is not democracy in a policy sense. they are there to uphold the constitution and are constrained by it (or ought to be).
"it might be but the point is that ultimately the case would be decided by a majority vote - as specified by our Constitution."
to conflate a vote among 7 constitutional guardians with full democracy is a pretty big stretch larry. again, they don;t get to vote their preferences, only their interpretations of the law. they are not supposed to make law or express personal opinion.
but a single federal judge could do the same.
i think you are really stretching your definitions here.
"it's a practical one...a real world one..that applies in a widespread way...."
no. this is a very weak argument used to justify the thin end of the wedge for all manner of tyranny. this is the law, so it's right is absurd. you could defend slavery with that. claiming it OK to take away a right for "practical" reasons means you do not have a right. the right is YOURS. it is not granted to you by government. thus, they cannot take it away. which part of "inalienable" are you not getting.
this is the whole of the first amendment:
" 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."
nowhere does it mention "practical" nor "unless we say so". "congress shall make NO LAW... abridging freedom of speech".
that could not be any more clear. that fact that it has been flouted justifies nothing.
"if not mistaken a case like this went through the courts on the basis of free speech and a decision was made that free speech "can" be restricted ..it is not absolute and without restrictions."
again, so what? you use a bad decision clearly contrary to the constitution to justify further violations. that is the antithesis of rights and a horrifying precedent. you can justify any tyranny using that rationale so long as it has been done before.
"who says on what basis?"
the law in this country establishes adulthood for a non emancipated minor as 18. i'm not sure what you are asking.
regarding the over 18 prostitute, it should be decided by the individual. neither congress, nor you, nor anyone other than the prostitute and the client have any right to enter into the decision.
it's a consensual transaction between 2 adults.
this flows from basic freedoms and liberty. if you own your body and your own labor, then you can decide what to do with it and what kind of labor to engage in. so long as it harms no one or infringes upon their rights, it is absolutely no business of theirs or of the government.
for that matter, i feel the same way about minimum wage laws. you should be free to sell your labor at whatever price you wish. it is no one's business but yours.
we used to take on unpaid interns. (who lined up and fought for the opportunity, we'd get 500 resumes for 2 spots) we can no longer do this due to tightening of labor law. we actually have to call it a seminar now and charge them $1. that's just absurd.
if college kids want to trade labor for knowledge, it's insane to tell them they, competent adults, cannot do so.
actually, if you think about it, the parallel between the example of a prostitute and a kidney donor is pretty good.
in both cases, and act that is legal if free becomes illegal if money is involved.
i can legally give you a kidney or go home with a woman i meet in bar and have sex.
both are viewed as perfectly acceptable or even extremely laudable activities.
yet suddenly, being compensated for that which is legal to do for free makes it illegal?
this seems like an awfully strange doctrine and i cannot think of a single way to defend it from first principles.
claiming that the majority approves of it carries no ethical water at all. if the approve of slavery or torture or some other atrocity, that would hardly make it OK.
so what is the actual ethical/philosophical justification for making somehting that is clearly legal and even socially approved of illegal just because money is involved?
i honestly cannot come up with anything at all.
to take this a step further, doesn't this notion of payment making an activity illegal conflict utterly with the rest of wage laws that require and demand payment for labor?
it's ok for me to pay someone to work for me, but not have a free intern, yet it's also ok for me to give away a kidney but not to sell one?
on the one hand we demand compensation and on the other forbid it?
this is precisely the sort of inconsistent hodgepodge of laws you get when you start with notions of "practical" and "public opinion" as opposed to first principles like rights.
small wonder our legal system is such a mess.
re: majority rules
well.. you got a SCOTUS that was appointed by a majority-elected President and confirmed by an majority=elected Congress... per the way our Constitution intended...
re: the "age" of "consent" ...
is that in the Constitution?
is it a "natural" right?
are these not restrictions of liberties?
in fact, the age of consent varies according to country and govt, right?
but my question to you is this -
do you see restrictions based on age of consent as legal... and "practical"?
Ron/Morganovich,
You're right, I shouldn't have tossed out the life/liberty line. I was just trying to make a vague point that the constitution grants us rights that are being messed with all the time. Saying what I said distracted from the point I was making (which I believe is still valid even though I said it in a stupid way).
"if not mistaken a case like this went through the courts on the basis of free speech and a decision was made that free speech "can" be restricted ..it is not absolute and without restrictions."
Yes, Schenck v. United States, in 1919. That decision upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Schenck had been found guilty of violating that act by printing and distributing leaflets urging resistance to the draft.
This was obviously an incorrect decision, as the First Amendment clearly states "Congress shall make no law abridging the freedom of speech. I'm not sure how much plainer it can be.
In writing the Court opinion, Justice Oliver Wendell Holmes stated that Schenck's First Amendment rights weren't violated, as they didn't extend to causing a "clear and present danger" by urging resistance to the draft.
He made the famous comparison:
"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
This was also clearly wrong, as he came to realize later, that shouting fire in a theater is a property rights issue, not a speech issue.
A theater is private property, and ticket holders are granted a right to enjoy a performance. No one has a right to disrupt that performance by shouting fire, or anything else.
In the case of a 13 year old prostitute, the right to make decisions about their body should come at the same time they're able to make every other decision for themselves. In other words, when they leave home and no long require parental guidance.
This isn't a any particular age.
State entities have legislated various ages for a so called "age of consent", but the numbers are just arbitrary.
Mike
If you have a little time, give the Constitution a quick read. It's not very long, and seems pretty clear in it's meaning, although lots of people seem to get pretty confused about it, especially statists and progressives who view it as an obstacle to be overcome.
" A theater is private property, and ticket holders are granted a right to enjoy a performance. No one has a right to disrupt that performance by shouting fire, or anything else"
so how come it was a criminal case and not a civil case?
a theater is indeed private property but those lighted EXIT signs are mandated by govt, no?
"so how come it was a criminal case and not a civil case?"
Huh? Reread my comment carefully. Schenck was convicted under the espionage act, not for shouting fire in a theater.
Justice Holmes merely invented that scenario as an example of a possible limit on free speech, although it wasn't correct. That saying has outlived any other memory of the case from which it came.
I was commenting on the idea that shouting fire in a theater is a violation of property rights.
but I don't think I've ever heard a case brought forward on that basis.
but with respect to "free speech" ..."rights".... it's the enumeration of rights or non-enumeration that forms the basis of the conflict over what is or is not a "right" to start with.
and it's clear to most folks that no right is without restriction in a country with a government - even the countries said to have the most/best "liberty".
that said - most every country in the world restricts what you can sell legally including your own body.
the countries that have the least restrictions are most often 3rd world.
I like to see the ranking indexes put out by various think tanks - like Heritage but I doubt that we'll ever see an country rank index for selling your own body parts.
"but I don't think I've ever heard a case brought forward on that basis."
And there's a good reason for that. There hasn't been a case involving someone shouting "fire" in a theater.
"but with respect to "free speech" ..."rights".... it's the enumeration of rights or non-enumeration that forms the basis of the conflict over what is or is not a "right" to start with."
If you were to read the Constitution, specifically the Bill of Rights, you would find that rights are not granted, but are acknowledged as already existing, and that government is forbidden to interfere with them.
When you reach the 9th Amendment, you'll find it explains that those mentioned earlier in Amendments 1-8 aren't the only rights, but just a few examples
9th Amendment "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
" but are acknowledged as already existing, and that government is forbidden to interfere with them"
but not really explicitly enumerated and even the ones mentioned are violated.
life = death penalty
liberty = imprisoned without charges
pursuit of happiness... need I say more?
" If you were to read the Constitution, specifically the Bill of Rights, you would find that rights are not granted, but are acknowledged as already existing, and that government is forbidden to interfere with them. "
right.
did it not say "all men are created equal"
who exactly determines the specifics with regard to "liberty"?
who or what determined that the Constitution - written in part by slave owners actually intended with those words?
I'd say that your reliance on the Constitution and the govt of the US to define and delineate your "rights" is pretty flawed and problematic.
and ultimately what it boils down to is your opinion verses the opinion of elected lawmakers and appointed judges...
if you threaten terrorism against the US - you CAN be imprisoned for an indefinite period of time - without charges.. even held incognito ...transferred to a prison outside of the US.
A majority of elected representatives voted for this and the SCOTUS - appointed and confirmed by majority-elected representatives affirmed this.
what this says to most people is that the words in the Constitution are not absolute, not inviolate, and actually interpreted as to meaning....
out of all of this - we end up with govt that essentially has full rein over your "rights" .....and your only real alternative is you disagree is to cast your vote for those who support your views - and abide by majority decision subsequently.
this is, in fact, the "rest" of the Constitution when it specified how we would be governed... by elected representatives who would "make laws" and the appointed SCOTUS would determine if those laws conform to the Constitution.
Let's assume you strenuously disagree with this....
what are your realistic options to roll things back to where you think they ought to be?
when I comment here.. on these things - I comment with the realization and acceptance of where we are in reality - not where we ought to be in theory or according to various ideologies.
we have to:
1. deal with the current realities
2. abide by our governance process for law and conformity to the Constitution.
our only real alternatives are:
1. - fight politically for what you believe in.
2. - advocate violent overthrow
3. - leave for other countries that better suit your beliefs.
there may be others ... how about you expanding on the options that I may have missed, overlooked or be ignorant of?
"did it not say "all men are created equal""
No, it didn't.
"who exactly determines the specifics with regard to "liberty"?"
Liberty is a moral and political principle that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions.
That definition should cover most of our discussion. Liberty is one of the basic "inalienable" rights we all possess as human beings.
"who or what determined that the Constitution - written in part by slave owners actually intended with those words?"
The word liberty appears only twice in the Constitution: Once in the Preamble, and once in the 5th amendment.
The Constitution concerns itself more with rights that we all have, and forbids government interference.
You may be confusing it with the Declaration of Independence.
There was a great deal of contention over the issue of slavery, and to insist on a Constitution that forbade slavery would have created a very different United States, if one had come about at all. Rather than make the perfect the enemy of the good, they accepted something less than perfect.
"I'd say that your reliance on the Constitution and the govt of the US to define and delineate your "rights" is pretty flawed and problematic."
But I don't. My rights are part of my nature as a human being, and are inalienable. Government may infringe those rights or deny them to me, but that's not a legitimate function of government, and doesn't mean I don't have them. The US Constitution reminds us of that inalienability, and forbids government to interfere with them.
The fact that government hasn't remained so "bound down by the chains of the Constitution" is a reminder that any amount of government is likely too much, as it inevitable grows, once given the ability to tax, and a monopoly on the use of force.
"and ultimately what it boils down to is your opinion verses the opinion of elected lawmakers and appointed judges..."
Certainly not. I have only explained the Constitution to you, something every elected lawmaker, judge, and every other government employee swears to uphold. The fact that they break their oaths so regularly, is a sad comment on the state of representative government.
"if you threaten terrorism against the US - you CAN be imprisoned for an indefinite period of time - without charges.. even held incognito ...transferred to a prison outside of the US."
Not quite yet, but McCain & others are working on it. that is a clear-cut violation of the Constitution.
"A majority of elected representatives voted for this and the SCOTUS - appointed and confirmed by majority-elected representatives affirmed this."
They are ignoring the Constitution, eh?
"what this says to most people is that the words in the Constitution are not absolute, not inviolate, and actually interpreted as to meaning...."
That this means to most people is that the Constitution has been cast aside as a basis of government, and we are now ruled by tyrants who do whatever they want. That should frighten you.
If you intend to discuss government in the US, and it's role in your life, you should probably take some time to read the Declaration of Independence and the Constitution, our founding documents, so you could understand how far out of control government has become They are fairly short reads, and well worth the time.
" If you intend to discuss government in the US, and it's role in your life, you should probably take some time to read the Declaration of Independence and the Constitution, our founding documents, so you could understand how far out of control government has become They are fairly short reads, and well worth the time. "
I claim to be no expert but I can and do read quite a bit including the Constitution and the bottom line here is that ....without a govt - no matter how flawed you might think it is...
the CONCEPT of "inalienable rights" is problematic because the only person who can truly protect those perceived rights would be you and your personal enumeration of the specifics will vary from others and if there is dispute/conflict there is no govt to arbitrate... just you.
so govts fulfill the role of protecting rights - both defined and "inalienable" - for those who agree to live in a country with govt.
for example - your right to life is not viewed by govt in the same way you as an individual might.
you might think you were correct and justified in killing someone else but if the govt disagrees, you get imprisoned and/or killed - by the govt...
the same govt that has a Constitution that says emphatically that all men are entitled to inalienable right of life.
My views on this are to recognize from a practical, real world perspective how these words translate into reality and to recognize that your rights are at the same time - protected by the govt but also determined by the govt.
in other words, the govt protects only the rights it chooses to protect no matter what the words say.
"I claim to be no expert but I can and do read quite a bit including the Constitution and the bottom line here is that ....without a govt - no matter how flawed you might think it is..."
"the CONCEPT of "inalienable rights" is problematic because the only person who can truly protect those perceived rights would be you and your personal enumeration of the specifics will vary from others and if there is dispute/conflict there is no govt to arbitrate... just you."
You are expressing the Hobbsean idea of "war of all against all", but it should be obvious that this doesn't describe the true nature of people, as they have always, from earliest times, joined together in cooperative groups. Think family, friends, neighbors,tribe, community, etc.
Inalienable rights don't include the right to everything in the world, as this would violate the inalienable rights of others. Rather, each of us possesses those rights that all ow us to express our highest nature as human beings.
As you enjoy reading, you might enjoy this little bit on self-ownership. It's not easily summerized in a blog comment.
"so govts fulfill the role of protecting rights - both defined and "inalienable" - for those who agree to live in a country with govt."
The very word "country" is an arbitrary, political term. as long as government means a voluntary association, this is fine, but once you give government the ability to force others to comply, you have given up your rights in order to protect them. tyranny isn't legitimate government.
"for example - your right to life is not viewed by govt in the same way you as an individual might."
Then the view of government, my agent, is wrong.
"you might think you were correct and justified in killing someone else but if the govt disagrees, you get imprisoned and/or killed - by the govt..."
I can't take another life except in self defense, including the defense of someone else, my family, for instance. Therefore, it's not legitimate for any of the individuals who comprise "government" to do so.
"the same govt that has a Constitution that says emphatically that all men are entitled to inalienable right of life."
There's your perfect objection to capital punishment. If you can't take another life, then neither can your designated agent, the government.
That inalienable right to life isn't mentioned in the original Constitution, and doesn't appear until the 14th Amendment. You must still be confusing the Constitution with the DOI.
"My views on this are to recognize from a practical, real world perspective how these words translate into reality and to recognize that your rights are at the same time - protected by the govt but also determined by the govt."
That means you have no rights at all. If you can't be owned by another person, you can't be owned by a group of people through their designated agent, the government. You own yourself, and can't give up your free will.
"in other words, the govt protects only the rights it chooses to protect no matter what the words say."
In other words, the Constitution means nothing, and those we think we elect to represent us, can do whatever they wish. There is no structure, and no limit on government power. Whoever has the most power, rules us.
How is this better than the Hobbsean notion of the divine right of kings?
"You are expressing the Hobbsean idea of "war of all against all", but it should be obvious that this doesn't describe the true nature of people, as they have always, from earliest times, joined together in cooperative groups. Think family, friends, neighbors,tribe, community, etc."
they do..and they usually vote
"Inalienable rights don't include the right to everything in the world, as this would violate the inalienable rights of others. Rather, each of us possesses those rights that all ow us to express our highest nature as human beings."
they are essentially not well defined nor unanimously agreed to.
"As you enjoy reading, you might enjoy this little bit on self-ownership. It's not easily summerized in a blog comment."
some concepts are simple and basic and are not improved by verbosity.
"so govts fulfill the role of protecting rights - both defined and "inalienable" - for those who agree to live in a country with govt."
"The very word "country" is an arbitrary, political term. as long as government means a voluntary association, this is fine, but once you give government the ability to force others to comply, you have given up your rights in order to protect them. tyranny isn't legitimate government."
anytime you are in a group and there is conflict but as the same time a need/want for resolution - people will agree to a vote even if they lose and are bound by it.
"for example - your right to life is not viewed by govt in the same way you as an individual might."
Then the view of government, my agent, is wrong."
wrong for you but not necessarily wrong for the majority...
"you might think you were correct and justified in killing someone else but if the govt disagrees, you get imprisoned and/or killed - by the govt..."
"I can't take another life except in self defense, including the defense of someone else, my family, for instance. Therefore, it's not legitimate for any of the individuals who comprise "government" to do so."
again.. your view.. perfectly legitimate but once you agree to live in a place where rights are decided by vote...
"the same govt that has a Constitution that says emphatically that all men are entitled to inalienable right of life."
"There's your perfect objection to capital punishment. If you can't take another life, then neither can your designated agent, the government."
if you are on the losing end of the vote that designates your agent's authority....
....continue
.......resume
"That inalienable right to life isn't mentioned in the original Constitution, and doesn't appear until the 14th Amendment. You must still be confusing the Constitution with the DOI."
you are right but the nexus is legitimate
"My views on this are to recognize from a practical, real world perspective how these words translate into reality and to recognize that your rights are at the same time - protected by the govt but also determined by the govt."
"That means you have no rights at all. If you can't be owned by another person, you can't be owned by a group of people through their designated agent, the government. You own yourself, and can't give up your free will."
you have rights but when you are in a "group" you have to have a way to resolve different views of what rights are and are not.
you can lay out some preamble language but at the end of the day by joining with a group that decides to resolve conflict by some system of governance - you agree to that if you want to be in that group.
if that group is a country - your decision is to stay and accept or not.
"in other words, the govt protects only the rights it chooses to protect no matter what the words say."
"In other words, the Constitution means nothing, and those we think we elect to represent us, can do whatever they wish. There is no structure, and no limit on government power. Whoever has the most power, rules us.
How is this better than the Hobbsean notion of the divine right of kings?"
It's a practical reality.
The Constitution means a lot but it is not absolute and inviolate ..and was never intended to be that way.
The Constitution specifically empowered an elected representative form of govt, laws and regulations that had to be agreed to by all 3 divisions of govt - legislative, administrative and judicial.
"all men are created equal"...
obviously was a serious document "problem" ... in that it did not reflect the reality - those words written by slave-owners who were married to women who could not vote.
"again.. your view.. perfectly legitimate but once you agree to live in a place where rights are decided by vote... "
But did you decide to live a place where rights are decided by vote? Did you choose your place of birth? It's amazing that you don't object to others making decisions for you.
Your position seems to be "Whatever most others want me to be, I'll be."
"wrong for you but not necessarily wrong for the majority..."
If it's not permissible for one person to take my life, how can it be permissible for a group of people to do so?
"if you are on the losing end of the vote that designates your agent's authority.... "
So, a group of people can vote to take someone else's life? That's mob rule. How many people does it take to make a legitimate decision ? One, two, ten, 535?
"you have rights but when you are in a "group" you have to have a way to resolve different views of what rights are and are not."
But I'm not in a group. How can I protect my rights by giving them up?
"you can lay out some preamble language but at the end of the day by joining with a group that decides to resolve conflict by some system of governance - you agree to that if you want to be in that group."
I haven't joined with a group.
"if that group is a country - your decision is to stay and accept or not."
I don't need to decide to stay or go, I was born here. What exactly is a "country"
To be clear, I have no problem with groups, the key is that membership is voluntary. Forced membership is tyranny.
Your view that the majority can decide everything, means you wouldn't mind if the US was N. Korea or Cuba. Slavery, child rape, female genital mutilation, automatic euthanasia of the handicapped or disabled, what ever the majority approved of would be acceptable.
Your world sucks.
"How is this better than the Hobbsean notion of the divine right of kings?"
It's a practical reality."
Not exactly an answer, unless you mean there is no difference.
Saying "That's just how it is." isn't good enough for most people.
"The Constitution means a lot but it is not absolute and inviolate ..and was never intended to be that way."
There's an amendment process. The careful, concise wording of the Constitution means exactly what it says. If the Constitution was intended as mere suggestions, then we have no law at all, as all else derives from it. You should reread it.
"The Constitution specifically empowered an elected representative form of govt, laws and regulations that had to be agreed to by all 3 divisions of govt - legislative, administrative and judicial."
Yes, with very specific powers and limits. There are 16 powers granted to the legislature, and nothing else. Obviously the limits haven't been enough.
"all men are created equal"..."
Again, that's not in the Constitution.
"obviously was a serious document "problem" ... in that it did not reflect the reality - those words written by slave-owners who were married to women who could not vote."
The Constitution was written without any direct use of the words "slave" or "slavery", as there was no intent to resolve the issue by it. There would have been no Constitution otherwise.
The right to vote wasn't explicitly ensured to anyone in particular by the original constitution. There are only references to "the people of the several states".
" "again.. your view.. perfectly legitimate but once you agree to live in a place where rights are decided by vote... "
But did you decide to live a place where rights are decided by vote? Did you choose your place of birth? It's amazing that you don't object to others making decisions for you."
I accept the realities and seek change through the ballot box since it's the Constitutional provision.
"Your position seems to be "Whatever most others want me to be, I'll be." "
it's a position of accepting the realities and adapting...
"wrong for you but not necessarily wrong for the majority..."
"If it's not permissible for one person to take my life, how can it be permissible for a group of people to do so?"
you could pose that question for a wide range of "why" but that's the way it is - not only in this country but virtually all of them in the world.
"if you are on the losing end of the vote that designates your agent's authority....
"
"So, a group of people can vote to take someone else's life? That's mob rule."
even when SCOTUS does it?
" How many people does it take to make a legitimate decision ? One, two, ten, 535?
"you have rights but when you are in a "group" you have to have a way to resolve different views of what rights are and are not." "
9 in this country but that number varies in other countries but it is in fact a number in most cases.
"But I'm not in a group. How can I protect my rights by giving them up?"
you can't protect your rights exactly the same way in a governed country the way you would in a place without a govt.
in an un-governed place, your "rights" are what you believe they are (and that would include things like stealing from others in the case of some folks) but in a governed place - your rights are what the governed agree to if they live in a country governed by representative governance.
"I haven't joined with a group."
you don't have to "join" to be considered part of a group.
what you cannot be is outside the law that the group has decided as long as you live where the group lives and governs.
some people cannot countenance this and go live in caves or in the middle of nowhere off the grid.
"I don't need to decide to stay or go, I was born here. What exactly is a "country" "
you have to decide if you want to live where you were born if you do't like the way it operates.
A "country" is, once again, what the majority decides it is.
"To be clear, I have no problem with groups, the key is that membership is voluntary. Forced membership is tyranny."
you are governed by the laws where you live... no matter if you "agree" or not.
"Your view that the majority can decide everything, means you wouldn't mind if the US was N. Korea or Cuba. Slavery, child rape, female genital mutilation, automatic euthanasia of the handicapped or disabled, what ever the majority approved of would be acceptable."
well no... it's a decision as to how you will reconcile living in a place or with a group where you disagree with the rules - even if you were born into it.
Your world sucks.
I AGREE!
...but the ALTERNATIVE is WORSE!
"How is this better than the Hobbsean notion of the divine right of kings?"
It's a practical reality."
Not exactly an answer, unless you mean there is no difference."
you have to reconcile the things you cannot easily or realistically change or you have to go where you have less problems with it.
"Saying "That's just how it is." isn't good enough for most people."
that's correct but they don't leave and many highly value their "right" to vote...to assemble and to associate with groups to pursue change.
"The Constitution means a lot but it is not absolute and inviolate ..and was never intended to be that way."
There's an amendment process. The careful, concise wording of the Constitution means exactly what it says. If the Constitution was intended as mere suggestions, then we have no law at all, as all else derives from it. You should reread it."
it's also law and regulation - with SCOTUS concurrence. A LOT is INTERPRETATION of what is not EXPLICIT.
and keep in mind that SCOTUS is appointed, not elected and that it rules with "mob" rule.
"Yes, with very specific powers and limits. There are 16 powers granted to the legislature, and nothing else. Obviously the limits haven't been enough."
that's obviously an example of where opinion varies...
"all men are created equal"..."
"The Constitution was written without any direct use of the words "slave" or "slavery", as there was no intent to resolve the issue by it. There would have been no Constitution otherwise."
ah.. that Hobsian thing?
"The right to vote wasn't explicitly ensured to anyone in particular by the original constitution. There are only references to "the people of the several states"
then SCOTUS was wrong in interpreting that the Constitution did intend equality of races and sexes?
"If it's not permissible for one person to take my life, how can it be permissible for a group of people to do so?""
"you could pose that question for a wide range of "why" but that's the way it is - not only in this country but virtually all of them in the world."
Not an answer. "That's just the way it is", isn't good enough.
"I accept the realities and seek change through the ballot box since it's the Constitutional provision."
But the Constitution didn't give you the ballot box. You might consider rereading it. The various states determined how electors were chosen, and who could vote and who couldn't. Amendments have since detailed ways in which various groups of people cannot be denied the vote.
In any case, the ballot box is is only a mechanism permitted to you by the State, if you qualify.
"So, a group of people can vote to take someone else's life? That's mob rule.""
"even when SCOTUS does it?"
Of course.
" How many people does it take to make a legitimate decision ? One, two, ten, 535?"
"9 in this country but that number varies in other countries but it is in fact a number in most cases."
I asked about a *legitimate* decision.
So, I can't take your life as it violates your inalienable right to life, liberty, etc. but I and 9 of my friends can?
The Constitution doesn't specifically allow or forbid the death penalty, so you can't rely on it to provide you with an answer.
What is YOUR position on this? What are your principles? It appears that you have none of your own, and rely on others to provide them for you when you say "that's just the way it is".
"well no... it's a decision as to how you will reconcile living in a place or with a group where you disagree with the rules - even if you were born into it."
You mean "well yes...". Didn't you write - "A "country" is, once again, what the majority decides it is"?
You're saying that if the majority approves of slavery and child rape, I should accept it and learn to adapt?
"it's also law and regulation - with SCOTUS concurrence. A LOT is INTERPRETATION of what is not EXPLICIT."
Laws are the sausages ground out by the legislature, and approved by the President. Only those that are challenged sometimes reach the SCOTUS where Constitutionality is determined, sometimes correctly.
The Constitution itself is fairly clear. You can usually clear up any misunderstandings of original intent by reading other things the Founders wrote, The Federalist Papers being one good source.
Another example is James Madison, in referring to a bill before Congress to subsidize cod fishermen. As the author of much of the Constitution, he here explains that the term "general welfare" referred to the enumerated powers only:
""If Congress can employ money indefinitely to the general welfare,
and are the sole and supreme judges of the general welfare,
they may take the care of religion into their own hands;
they may appoint teachers in every State, county and parish
and pay them out of their public treasury;
they may take into their own hands the education of children,
establishing in like manner schools throughout the Union;
they may assume the provision of the poor;
they may undertake the regulation of all roads other than post-roads;
in short, every thing, from the highest object of state legislation
down to the most minute object of police,
would be thrown under the power of Congress.... Were the power
of Congress to be established in the latitude contended for,
it would subvert the very foundations, and transmute the very nature
of the limited Government established by the people of America."
Understanding the times in which the Founders lived, is also important to determining original intent. A tyrannical government had just recently been thrown off at great cost, and representatives of the 13 sovereign states were very aware of the need to limit the new agent they were creating.
Not an answer. "That's just the way it is", isn't good enough.
you can work to change what you disagree with
"I accept the realities and seek change through the ballot box since it's the Constitutional provision."
"But the Constitution didn't give you the ballot box. You might consider rereading it. The various states determined how electors were chosen, and who could vote and who couldn't. Amendments have since detailed ways in which various groups of people cannot be denied the vote."
I could have sworn that we have an elected government, no?
"In any case, the ballot box is is only a mechanism permitted to you by the State, if you qualify."
no...you can formulate legislation and sue in the courts for redress.
"So, a group of people can vote to take someone else's life? That's mob rule.""
"even when SCOTUS does it?"
Of course.
but isn't that "constitutional"?
" How many people does it take to make a legitimate decision ? One, two, ten, 535?"
"9 in this country but that number varies in other countries but it is in fact a number in most cases."
I asked about a *legitimate* decision.
9 is legitimate. It conforms to our rules of governance
So, I can't take your life as it violates your inalienable right to life, liberty, etc. but I and 9 of my friends can?
yup.
"The Constitution doesn't specifically allow or forbid the death penalty, so you can't rely on it to provide you with an answer."
it empowers a legislative branch to make laws..
"What is YOUR position on this? What are your principles? It appears that you have none of your own, and rely on others to provide them for you when you say "that's just the way it is"."
My principles are that there is right and wrong and fair and unfair but to recognize that anytime one lives in a place that has government - your rights are not just what you believe they are - in a practical sense.
change happens in elected governance when a clear majority of people want it (or not).
"well no... it's a decision as to how you will reconcile living in a place or with a group where you disagree with the rules - even if you were born into it."
You mean "well yes...". Didn't you write - "A "country" is, once again, what the majority decides it is"?
You're saying that if the majority approves of slavery and child rape, I should accept it and learn to adapt?
you should accept the fact that it is - and not lose your life or liberty over it unless you cannot countenance it...otherwise work to change it.
it sucks but alternatives are even worse.
"it's also law and regulation - with SCOTUS concurrence. A LOT is INTERPRETATION of what is not EXPLICIT."
"Laws are the sausages ground out by the legislature, and approved by the President. Only those that are challenged sometimes reach the SCOTUS where Constitutionality is determined, sometimes correctly."
indeed. agree.
"The Constitution itself is fairly clear. You can usually clear up any misunderstandings of original intent by reading other things the Founders wrote, The Federalist Papers being one good source."
not really. if that were true - we'd not have a ton of court cases every year to include many sent to SCOTUS.
"Another example is James Madison, in referring to a bill before Congress to subsidize cod fishermen. As the author of much of the Constitution, he here explains that the term "general welfare" referred to the enumerated powers only:"
yep..but the cow got out of the barn a long, long time ago..
""If Congress can employ money indefinitely to the general welfare,
and are the sole and supreme judges of the general welfare,
they may take the care of religion into their own hands;
they may appoint teachers in every State, county and parish
and pay them out of their public treasury;
they may take into their own hands the education of children,
establishing in like manner schools throughout the Union;
they may assume the provision of the poor;
they may undertake the regulation of all roads other than post-roads;
in short, every thing, from the highest object of state legislation
down to the most minute object of police,
would be thrown under the power of Congress.... Were the power
of Congress to be established in the latitude contended for,
it would subvert the very foundations, and transmute the very nature
of the limited Government established by the people of America."
Understanding the times in which the Founders lived, is also important to determining original intent. A tyrannical government had just recently been thrown off at great cost, and representatives of the 13 sovereign states were very aware of the need to limit the new agent they were creating."
I hear where you are coming from but I do not believe that the founding fathers had though ahead of time about every little nook and cranny that evolved law and jurisprudence would take.
We have no court to decide if SCOTUS has gone off the ranch.. right?
we sort of do.. by electing someone who says they will appoint strict constructionists but that one issue by itself does not drive elections.
"ah.. that Hobsian thing? "
No idea what Hobbsean thing you mean.
""all men are created equal"..."
Maybe context will help:
"We hold these truths to be self-evident, that all men are created equal, [in] that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness -"
Obviously "all men" aren't born into equal circumstances, but they have an equal right to life, to liberty, and to pursue their own ends, or "happiness". This is the basis of libertarian political philosophy.
If you believe that statement to be true, then you can't also believe that anyone else has the right to invade your rights.
"then SCOTUS was wrong in interpreting that the Constitution did intend equality of races and sexes?"
The SCOTUS didn't make such a determination. Amendments 13, 14, 15, ands 19 addressed those issues.
For someone who has read the Constitution It's surprising that you would write what you did.
[enumerated powers] "that's obviously an example of where opinion varies... "
Yes, obviously, but the Tenth Amendment explains that if a power isn't expressly granted to general government by the Constitution, that power remains with the States and with the people, and general government doesn't have it. Seems pretty clear, don't you think?
The Constitution severely limits government, not people. Your understanding of it seems pretty murky.
"So, I can't take your life as it violates your inalienable right to life, liberty, etc. but I and 9 of my friends can?
yup."
Then we have no rule of law at all. It's that "Hobbsean" thing.
"but isn't that "constitutional"?"
No.
I could have sworn that we have an elected government, no?
Elected by electors, chosen by each state proportional to the number of Representatives and Senators each state has. Thus chosen by "the people" who elect representatives to state legislatures. There is no guidelines as to who, exactly, "the people" are, and as you pointed out, it didn't include women of slaves, and varied from state to state.
Remember, the Constitution created a Constitutional Republic, an agent of the sovereign states, not a national government.
I could have sworn I gave you these handy links to the Declaration of Independence and Constitution previously, but here they are again. Also these handy references with links to additional information and discussion..
"My principles are that there is right and wrong and fair and unfair but to recognize that anytime one lives in a place that has government - your rights are not just what you believe they are - in a practical sense."
That is exactly my point. It seems that a society with government is worse off than one without, where people pursue their own ends without interference from the tyrants.
Actually our basic rights ARE what we believe them to be, and someone else denying us those rights doesn't change them.
A slave still owned himself and had free will and ultimate control of himself, as evidenced by how many ran away. It takes self ownership and free will to do that.
Control of your body doesn't equal control of your self.
"We have no court to decide if SCOTUS has gone off the ranch.. right?"
Think State Nullification. After all, the Federal government is an invention of the States. We are seeing a hint of that in the many state objections to Obamacare.
"I could have sworn I gave you these handy links to the Declaration of Independence and Constitution previously, but here they are again. Also these handy references with links to additional information and discussion.. "
I'll try to do better...
"My principles are that there is right and wrong and fair and unfair but to recognize that anytime one lives in a place that has government - your rights are not just what you believe they are - in a practical sense."
That is exactly my point. It seems that a society with government is worse off than one without, where people pursue their own ends without interference from the tyrants."
I guess that depends on your POV.
it "sounds" like the wild, wild west where your right were basically what you could uphold yourself and if not.. then too bad.
"Actually our basic rights ARE what we believe them to be, and someone else denying us those rights doesn't change them."
if everyone thought exactly the same way..certainly ..but we don't.
"A slave still owned himself and had free will and ultimate control of himself, as evidenced by how many ran away. It takes self ownership and free will to do that."
or how many had half their foot cut off or were lashed to death or close to it?
Control of your body doesn't equal control of your self.
"We have no court to decide if SCOTUS has gone off the ranch.. right?"
"Think State Nullification. After all, the Federal government is an invention of the States. We are seeing a hint of that in the many state objections to Obamacare."
not the first time... and not the last....
our form of govt is deeply flawed....
but fundamentally - if you were born into a government - your choices are to stay or leave - not change it to your view.
"or how many had half their foot cut off or were lashed to death or close to it?"
Despite the threat of terrible punishment, others still ran away. Self ownership and freedom were more important than threat of death.
"I know not what course others may take; but as for me, give me liberty or give me death!" - Patrick Henry Mar 23, 1775
"it "sounds" like the wild, wild west where your right were basically what you could uphold yourself and if not.. then too bad."
I'm not impressed by your source of historical information about the so called "wild, wild, west".
You might be surprised to learn that many wild west cities, such as Bodie, CA, had very low crime rates of all types, except for homicides, which were almost exclusively the result of altercations between willing participants. Those not interested in drunken brawling, were relatively safe, including women who could walk the streets at all hours of the day and night, without fear.
Of course you're right, we are certainly safer these days, now that we have well established law and
order.
"but fundamentally - if you were born into a government - your choices are to stay or leave - not change it to your view."
Really? Good thing many American colonists didn't agree with you in 1775.
"our form of govt is deeply flawed...."
It is not so much the form, as the implementation. It seems that no government can be confined to minimum authority.
"I hear where you are coming from but I do not believe that the founding fathers had though ahead of time about every little nook and cranny that evolved law and jurisprudence would take."
They couldn't possibly, so they provided an amendment process to make changes when needed, although the had the foresight to make that process very difficult, so that momentary passions couldn't easily overwhelm good sense.
Even so, there is some question as to the wisdom of several of the amendments, the 18th being the most obvious. It was later repealed by the 21st.
re: wild, wild
oh you can get a modern version of it in 3rd world countries...
and yes..they have their own version of liberty and death... Ak-47 style
"thuggery" struggles to be the same descriptor of the big bad US and Somolia
re: "city" - without a water/sewer system -"city" is the wrong word.
I don't advocate removal of all liberty in exchange for "safety".
I say there is a wide, wide range of variations... with material differences in effect.
re: born into
stay, leave or change - for change you need more than you.
that means some level of agreement on what you after as a movement - as opposed to individual complaints.
movements require governance...
oops...
" It is not so much the form, as the implementation. It seems that no government can be confined to minimum authority"
because......
re: amendment process -
yes but why does the SCOTUS exist in the first place?
when the argument is "what did they mean" vs " there is no doubt, it is explicit".
what was the true basis of most amendments?
for instance, are there amendments to rectify the not explicit commerce clause?
Never mind, Larry, you are now just arguing to argue, with no interest in making sense.
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