The U.S. Government Spying on Americans: Was It Ethical?

In early June, 2013, while Barak Obama was the U.S. president, Americans learned of the U.S. Government’s domestic surveillance program, under which the Verizon Business Network Services subsidiary had been turning over call logs “on an ongoing daily basis” to the National Security Agency[1] The order, signed by a judge on the Foreign Intelligence Surveillance Court in April of that year, was "lawful,” U.S. Senator Dianne Feinstein contended.[2] The program analyzed time and number logs that did not include the calls’ content. According to U.S. Senator Chambliss, “All of these numbers are basically ferreted out by a computer, but if there’s a number that matches a [suspicious] number that has been dialed . . . , then that may be flagged. And they may or may not seek a court order to go further on that particular instance. But that’s the only time that this information is ever used in any kind of substantive way.”[3] Harry Reid, Majority Leader in the U.S. Senate at the time, added that the phone-data program had “worked to prevent” terrorist attacks.[4] Does it make any difference. ethically speaking, that the program had helped stop a domestic attack? Shortly after The Guardian broke the story on Verizon’s subsidiary serving corporate customers, The Wall Street Journal reported, “[T]he initiative also encompasses phone-call data” from AT&T and Sprint, as well as from Verizon itself (i.e., beyond its business subsidiary).[5] Does this revelation on the vast scale of the program make any difference ethically? Moreover, does a positive collective consequence--or the lack of a negative harm to the public good--justify forays into the privacy of a vast number of individuals? 

Not surprisingly, privacy advocates were alarmed at the sheer scope of the program. Kate Martin of the Center for National Security Studies, a civil liberties advocacy group, said that “absent some explanation I haven’t thought of, this looks like the largest assault on privacy since the N.S.A. wiretapped Americans in clear violation of the law” under the Bush administration.[6] Her statement raises the question of whether the fact that the Obama administration had confined itself to court orders makes the program ethical.

Whereas the content of the phone conversations, including the parties’ names, were said to be not included in the trove of data turned over to the government, internet companies had been providing the contents of emails, online chats, Facebook accounts, Skype video calls, and web searches to the government as per court orders (i.e., not through direct access).[7] Does the inclusion of content make any difference, ethically speaking? Applying a few ethical theories may get us closer to some answers. 

                        I. Utilitarianism

Utilitarianism maintains that conduct is ethical if it provides the greatest happiness for the greatest number of people. This can be in terms of pleasure over pain or benefits over costs. In terms of phone records, the question is whether the harm from attacks that are prevented by the program outweighs the harm from the loss of privacy. Put another way, do the benefits of prevented attacks exceed the costs in terms of privacy that is lost?
That at least one attack had already been prevented indicates that benefits do indeed exist—but for how many people (saved)? Furthermore, how grave would the attacks have been? Attacks can vary in their severity and breadth of harm. The reduction in the fear of a possible attack is also a benefit, and the program, once exposed, can be expected to have put that fear at ease, at least to some degree. That these factors require judgment means that different people are likely to come to different conclusions on a given issue.
On the harm or cost side, the number of people whose calls have been reported is relevant. Judgment again intrudes in the determination of the harm from the loss of privacy if the parties are not aware of it, and then if they are aware of it. That the contents of the calls are not reported suggests that the cost or harm may not exceed the program’s benefits, even though the data provided covers a great number of people. In other words, it is reasonable to conclude that the harm to them pales in comparison to the harm that would be unleashed by mass attacks were they not prevented by the program. In the twenty-first century, access to chemical weapons and nuclear bombs can translate into massive harm. Anyone having parents, a brother or sister, or a child living in a major city would likely judge that giving the government access to his or her phone log is worth the loss in privacy. In terms of utilitarianism, therefore, the phone-records government program can be regarded as ethical because it is consistent with the greatest net happiness for the greatest number. The pain prevented would likely have been severe, whereas, even though the phone-logs involve many more people, the costs in terms of loss of privacy are far less intense. In other words, saving legs and lives is a benefit so significant that the loss of some privacy of many more people would likely be less overall than the benefits overall. To be sure, weighing and relating benefits and costs both in terms of severity and the number of likely people involves considerable uncertainty. Utilitarianism is therefore often a matter of judgment rather than mathematical calculation. The value of the theory here may be in comparing the two programs.
For example, going on to the Prism program, it can be regarded as less ethical from a utilitarian standpoint because of the extent of content provided. The possibility of government “Nixonist” abuse is greater here. Further, it could be asked whether the sheer amount of content is necessary to prevent attacks. In other words, would more attacks in the works be prevented, and if so, would this increased benefit be worth the added cost in terms of privacy lost? Even though judgment again comes into play, the Prism program is likely less ethical than the phone-log program—perhaps even unethical.

            II. Kantianism

Kant argued that treating others as ends in themselves rather than only as a means is a duty owing to the value of rational nature, given that it assigns values to things. The people whose calls are being reported are in one sense being used, but it is also possible that they or their loved ones could be saved from being killed or wounded as a result of the program. The more people whose calls are being reported, the stronger is the case that they themselves are being protected, and thus treated not merely as means, but also as ends in themselves. That three major phone companies have been submitting the logs suggests that the people can be regarded as the point of the program, rather than only as the means. The program can thus be viewed as ethical in Kantian terms.
In regard to the Prism program, the inclusion of so much content makes it easier to argue that the people are being used. At the same time, that so much from the internet is included means that more people are included. The assertion that the people harmed are also those being protected is thus stronger. However, it is also true that a lower proportion of those whose data is being mined would likely be those saved from the prevented attacks. A person could feel uncomfortable knowing that government employees could be reading his or her emails and tweets as well as looking at his or her Facebook pictures even though it is unlikely that he or she, living in the woods in Idaho, would ever be a victim of a terrorist attack. Such a person would rightly feel used for the sake of others’ safety.
For the Prism program to be ethical under Kantian ethics, one would be on more solid ground asserting that “the People” are being used and protected. As a government policy oriented to the general welfare, the program may thus be ethical. Even so, particular individuals could claim that they are being used.  

                        III. Social Contract: Rights and Obligations

Even if people have not sat down in the state of nature to agree to a social contract as a basis for a society, the balance of rights and obligations can be understood in terms of a contract. The rights and obligations are both for the good of the people. The question for us regarding the phone program is whether the obligation to allow one’s calls to be noted and used secretly by a government agency would be viewed by actual or hypothetical contract negotiators as going too far in encroaching on the right to privacy. That is, the question is whether people in the state of nature would agree to giving up that right in exchange for being (or feeling) protected. Because the contents of the calls and the names of the callers are not part of the obligation, people in the state of nature could reasonably agree to it in exchange for feeling or actually being protected.
Regarding the Prism program, people devising a social contract would be less likely to agree to provide their emails, web-searches, blogs, tweets, and Facebook contents in exchange for feeling or being more secure in a society. From a social contract perspective, the Prism program can be regarded as unethical. This approach assumes that the right to privacy is created in the making of a social contract, rather than being a natural right. If the right is “hardwired” into human beings, we could not simply “trade it in” without an enduring psychological cost.

                        IV. Natural Rights

That privacy is typically subject to questions of how much it benefits us relative to how much the loss of privacy benefits society suggests that the right is not natural. However, when a person’s privacy is not respected, such as by someone demanding personal information, it is natural to react in anger—to have what Hume calls a sentiment of disapprobation. Hume claimed this emotional reaction is the moral judgment itself that some conduct is unethical. In other words, that we react rather instinctually to someone who presumes access to personal information or ignores personal space suggests that the right to privacy stems from a natural right built into being constituted as a human being. From this basis, both programs can be regarded as unethical—the Prism program being even more unethical than the phone program because of the additional contents being provided to the government.
That just suspecting that a stranger might be reading one’s personal email or seeing a personal photo from Facebook would make the typical person cringe suggests that something unethical is going on—that the person is being violated in a way that cannot be justified. As the news reports of the programs were being digested by the American people, a collective negative emotional reaction was palpable with such immediacy that it must have been natural, and thus triggered by the violation of a natural right. Even people who reasoned that security justifies the loss of privacy doubtlessly had the emotional reaction too. From this perspective, it can be predicted that the more privacy, or access to that which the person regards as person, is compromised, the more psychological harm to the person is incurred as a result. A person adopting the social-contract approach might agree to trade some privacy for security, but the natural right theory would stress the psychological cost and thus be much less inclined to “trade” the right.

In conclusion, whether or not the phone and Prism programs were unethical depends on not only judgment and which factors are included, but also the particular ethical theory being used. It is unlikely that a definite ethical “answer” can be obtained or even exists unless the breach of privacy was so grave (i.e., harmful to the individuals being spied on) that utilitarianism and natural rights would become inflamed. Even so, that the ethical theories analyzed above do not give the same answer suggests that at least some ethicists would still object. From my own analysis above, two factors strike me as decisive: how personal the information that being provided (and how much) is, and how useful a given amount of information is in preventing attacks. A trade-off is implied here, and it in turn is related to the long-standing trade-off between privacy and security, or, moreover, rights and related harms of individuals and the public good. Surely at some point, it becomes unethical to extract too much from certain individuals--especially if they are many--for the public good. Yet we should not be hoodwinked into thinking that all ethical theories speak with the same voice. This grayness can be expected to diminish as the harm increases. Also, the grayness may give way only on a gradual slippery slope, and thus not be detectable either by the general public. For example, when the Nazis invaded The Netherlands, Jews there were subject to a gradual tightening (i.e., adding) of restrictions--the purpose of the "bit by bit" approach was doubtless so the Jews would not raise an uproar, for who would for a slight change? Spying on citizens by the U.S. Government probably also increased by small iterations, each of which, on its own, could easily be justified in governmental circles. Herein lies a danger to liberty even in a democracy.  

1. Charlie Savage and Edward Wyatt, “U.S. Is Secretly Collecting Records of Verizon Calls,” The New York Times, June 5, 2013.

2. Charlie Savage and Edward Wyatt, “U.S. Maintains Vast Database of Phone Calls, Lawmakers Say,” The New York Times, June 5, 2013.

3. Ibid.

4. Siobhan Gorman, Evan Perez, and Janet Hook, “U.S. Collects Vast Data Trove,” The Wall Street Journal, June 7, 2013.

5. Ibid.

6. Charlie Savage and Edward Wyatt, “U.S. Is Secretly Collecting Records of Verizon Calls,” The New York Times, June 5, 2013.

7. Siobhan Gorman, Evan Perez, and Janet Hook, “U.S. Collects Vast Data Trove,” The Wall Street Journal, June 7, 2013.

Balancing Budgets: Italy vs. Wisconsin

In what could be dubbed a tale of two states, Scott Walker of Wisconsin bragged about bringing the budget into balance without raising taxes while Silvio Berlusconi broke his pledge not to raise taxes in order to balance his budget for 2013. Walker relied on spending cuts and constricting the collective bargaining of government employees, while Berlusconi agreed to a package of tax increases, spending cuts and fewer labor protections to make up for $76 billion (54 billion euros) by 2013. The tax increases include raising the value-added tax from 20 to 21 percent and imposing a “solidarity tax” of 3 percent on state residents who earn more than $420,000 (300,000 euros). The latter tax would run through 2013. At a news conference in August, 2011, “Berlusconi acknowledged that he had pledged never to raise taxes, but that the attention of world markets had forced him to do so.” Was breaking his pledge a vice or a virtue?

Scott Walker would undoubtedly say “A VICE!” To be sure, there is merit in Walker’s feat in balancing a government’s budget without asking more from residents in terms of taxes. However, there is also merit in Berlusconi’s decision to “spread the pain” fairly even to the rich. Solidarity is a value that implies that we are all in it together so everyone sacrifices—not just those least able to do so. Choosing a spending-cuts-only approach wherein sustenance of the poor is compromised while the rich are not asked to contribute evinces not only a certain set of priorities, but also a certain value-set, which is antipodal to the principle of solidarity. From this standpoint, Berlusconi’s breaking of his pledge can be pardoned.

However, if excess government spending (i.e., not affecting the sustenance level) exists, it may be unnecessary to raise anyone’s taxes to balance a budget. To be sure, legislatures can pad lobbyists’ pockets by inflating budget items, and it is virtuous to cut such spending particularly to balance a budget. Also, labor unions can gain excessive power and demand too much from governments as well as workers. For example, in Wisconsin even part-time temporary instructors at public junior colleges must pay union dues amounting to a significant part of their pay per class. Someone teaching one class for one term only has different interests than a career instructor who teaches full-time at a college, yet the teachers’ union does not discern this difference. The problem comes in when a supermajority in government goes beyond correcting for such excess power in seeking to balance the budget on one segment of the population while another segment is allowed to go unaffected. The basic principle of fairness is violated in such a case.

The core principle not to be violated by any government may be put as follows: Instead of affecting the safety net on the sustenance level, taxes should be raised on those residents able to afford the additional tax. Being able to afford a tax justifies not depriving the poor of basic living requirements such as food, shelter and medical services. Contributing where one is able without undue hardship and a human right to sustenance can be said to be the two pillars of the principle of solidarity. Without this principle, a society is merely the sum of parts—a mere aggregate wherein selfishness rules rather than bows to a higher good. That is to say, solidarity thwarts misordered concupiscence while being necessary for genuine society.

Source:

Rachel Donadio, “Italian Senate Approves Austerity Plan,” New York Times, September 8, 2011.

The American City: A Police State in the Making

Crime in 2017 was down the 30 largest cities in the U.S, but police levels remained robust. Specifically, less crime did not result in fewer cops on the street. “In 2016, there were slightly more officers per capita than in 1991, when violent crime peaked,” according to the FBI.[1] American cities were on a trajectory toward becoming police states. A mentality of excessive dominance, I submit, lies behind the excessive show of force.

The notion that pruning a police force “inevitably raises the specter of more crime” does not hold, given the evidence of a more complex relationship.[2] For one thing, the actual size of a police force can be distinguished from the amount of police presence in the streets and in the air on a daily basis. I submit that the notion that a constant, ubiquitous police presence discourages crime is also problematic. In fact, blanketing a constant show of force can send the message of total societal distrust, which in turn can lead to crime as the social contract unravels. “The answer to fixing trust inside the community is to not put more distrust into it,” said Tre Murphy, a community organizer in Baltimore, Maryland. The sheer presence of police with guns implies distrust, and even a primitiveness in terms of aggression. “The answer to violence is not to put more violence into the community,” Murphy explains, “and that’s what they’re doing by increasing the police force.”[3] The additional violence here is mostly the passive aggressiveness of an excessive show of force, but also the incidents of police brutality. The latent passive and active aggression in an excessive police presence may be explained by the power vested in a police employee being too much for human nature to control.

It bears mentioning that quality of life also suffers for law-abiding citizens as a city becomes a de facto police state. When I lived in Tucson, Arizona, I was stunned to see low-flying police helicopters on a daily basis, even during weekdays, and this was on top of a myriad of police cars constantly on the major roads. Seeing a low-flying helicopter flying nearby in tight circles with a spotlight dotting here and there is downright creepy, and thus unnerving, especially on nearly a nightly basis. The city’s mayor’s office was oblivious. At the local university, both city and campus police, plus police aides, regularly circled within the campus, giving students and faculty the sense that they were being continuously monitored. The distrust in the air on that campus was so palpable I avoided it. It was not uncommon to see a campus policeman wearing a bullet-proof vest perpetually circling on a bike around the library and campus green, while police vehicles slowly pass by as if also necessary during the day.  

Such over-the-top policing especially during weekdays raises the problem of the culprits being wholly unaware that their conduct is excessive—more specifically excessively passive aggressive. It is precisely such being oblivious that prevents police forces from accepting the very notion of less rather than more. Downsizing is not in a police force’s DNA, according to Meghan Hollis, a criminologist. “Police departments, as long as they have the funds, they’re going to keep their force size the way it is or grow it, regardless of the crime rate. They can always adjust their statistics to make it look like they need the officers they have.”[4] Likewise, police forces can rationalize even what is an excessive daily police presence on the street and in the air such that the excessive amount can become normalized as the default. Hence even citizens feeling constantly monitored out in public spaces and even on their property can come to accept the fait accompli. The passive aggression inherent in the excessive show of force is, I submit, in the DNA of a police force. Perhaps mayors and university managers are afraid to reel in their respective police forces.  

Perhaps it bears mentioning that the quality of life in a city suffers from a constant police presence. This point is perhaps as obvious as the obliviousness of police forces regarding their own excessive show of force is hidden from the public as well as the police themselves. I submit that America is on the road to a police state, rendering “land of the free” into a farce. To deem oneself to have great liberty and yet live in—and implicitly tolerate!—a police state is to live in a state of denial: oblivious. This may have become the American unconsciousness.

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[1] Jose Del Real, “Crime Is Falling, But Police Levels Remain Robust,” The New York Times, January 8, 2018.

[2] Ibid.

[3] Ibid.

[4] Ibid.

Sustenance: A Human Right in America?

In the fall of 2010, the following was said on Fox News: “The government should spend more on the war in Afghanistan in order to fight terrorism. The problem is that the government has gotten into entitlements.”  The latter presumably includes food stamps, public housing, Social Security, Medicare, and Medicaid.  To say that government ought to be engaged in defense and not in supplying needy citizens with food, shelter and health-care is distinct from saying that the federal government should concentrate on foreign policy and defense, while entitlements are formulated and funded by the state governments as their domestic programs. In other words, advocacy for a certain priority in government and for less government is distinct from advocacy for restoring balanced federalism.

Most Europeans in the E.U. undoubtedly view the redistributive right for sustenance resources as founded on human rights and thus as a legitimate part of government.  In contrast, Americans do not typically apply a human rights justification to entitlements for other Americans even as foreign aid may be justified in part on this basis.

For example, on June 3, 2011, Donald Trump told a forum in Washington, D.C.: "A certain Republican representative, two nights ago -– I watched on television -– Representative Cantor, who [sic] I like, said we don't want to give money to the tornado victims, . . . (a)nd yet, in Afghanistan we are spending ten billion dollars a month but we don't want to help the people that are devastated by tornadoes -- wiped out, killed, maimed, injured. We don't have money for them but we are spending ten billion dollars a month in Afghanistan. We are spending billions of dollars in Iraq where they have the second largest oil fields in the world … and we can't help people that got flooded in Mississippi that got hit horribly by tornadoes." The U.S. House Majority Leader was holding up funds for basic necessities at home as leverage in debt-ceiling negotiations with the Democrats, while allowing billions of dollars to continue to flow in foreign aid (and to the U.S. military in Iraq and Afghanistan).  Canter’s antipathy toward government aiding citizens who would otherwise be left to the state of nature represents a rather warped understanding of a social contract.

People such as Eric Canter believe that the market mechanism trumps any right to have one’s basic needs satisfied. Resources are viewed as commodities produced and distributed by private enterprise, even though the market does not guarantee that every citizen’s basic needs are met. Even so, it can be asked whether the right to survival (i.e., life) is part of the American social contract. If so, then relying on the market mechanism alone is not sufficient.

If life is not part of the social contract, then the hungry and homeless, as well as the untreated sick, are (and can legitimately behave as if) in the state of nature. As much as some of the rich do not want to be taxed so the least fortunate can survive, the prospect of the latter behaving as if in the state of nature must surely be even less palatable.

James Madison writes in Federalist #51, “the weaker individual is not secured against the violence of the stronger” in the state of nature. Nor is the weaker secured against starvation and sickness.  Without the police to protect their property, are the rich sufficiently strong to ward off the hungry and homeless? Who is the strong and who is the weak in a dog-eat-dog contest between two human beings—one with a bank account and the other with a left hook? Life, Thomas Hobbes writes, is “solitary, poor, nasty, brutish and short” in the state of nature are all equal in the sense that any one of us can be killed in our sleep. Suddenly having some of one’s tax directed on a human-rights basis may not sound so bad.

What keeps those whose survival is so tenuous from simply taking from the rich is of course the funded social contract that protects property with police force even as there is no guarantee for survival. Such a warped social contract is an aberration in terms of social contract theory.

  The social contract undergirding a political society is meant to alleviate the fear of the want of necessities (and self-defense) while working for the happiness of the members.  In other words, there is a right to shelter, food and medical care. Otherwise, the society is only marginal or partial in obviating the insecurity that exists in the state of nature.

Therefore, to say that government should merely defend citizens from the insecurity of foreign invasion does not go far enough from the standpoint of why government is instituted as part of a social contract that takes people out of the state of nature. However, to say that an empire-level government ought to be charged with protection from foreign invasion, while the individual republics are tasked with ascertaining their citizens with protection from starvation, the elements, and sickness. Without anxiety, foreign or domestic, every citizen—rich or poor—would be freed up from a basic insecurity that without a viable social contract is simply part of life.

Sources:

The Federalist, ed. Jacob E. Cooke, Hanover, N.H.: Wesleyan Press, 1961.

Sam Stein, “Trump Takes Aim at Cantor, Krauthammer, U.S. Foreign Policy,” The Huffington Post, June 3, 2011.

Homeless “Campers” Starting Wildfires: Outside the Social Contract

Nederland, Colorado. A town in Boulder County that had embraced marijuana dispensaries for profit, found itself just outside a wildfire that burned 600 acres in July, 2016. Two homeless men were charged with fourth-degree arson for failing to put out their camp fire. The townsfolk reacted in anger, pointing to the increasing number of homeless people in the nearby national forest. Officials had been forced to deal with “more emergency calls, drug overdoses, illegal fires and trash piles deep in the woods.”[1] Some residents urged the U.S. Forest Service to crack down on the homeless by imposing tighter rules on camping, or banning it altogether in certain parts of the woods most popular with the homeless. An analysis drawing on the political philosophy of Thomas Hobbes, a seventeenth-century English philosopher can be employed to reveal a broader perspective on the problem.

In his masterpiece, Leviathan, Hobbes theorizes that people in the state of nature once made a social contract wherein they ceded their political freedom to a sovereign, who could forestall civil strife and war. Self-preservation is the dominate motive here. In agreeing to give up some freedom to a system of laws and police, agreeing to be bound by them, people believe themselves more likely to survive.

Social-contract theory more generally is not limited to the political dimension. In living in society, people agree to give up some of their economic self-sufficiency that comes from living off the land. Economic interdependence comes from specialization of labor, trade, and even the use of money. In an economy, people are interrelating parts rather than being wholly self-sufficient. As recessions and the loss of particular industries demonstrate, being a part in an economy is not necessarily best for a person’s self-preservation.

Therefore, it is hardly surprising that people for whom the socio-economy—a system of interdependence—does not make self-preservation more assured would head to a forest to live off the land. The homeless in the national forest near Nederland can hardly be blamed for doing what is necessary to survive. Hobbes maintained that people have the right (of self-preservation) to fight off execution even though the punishment is issued by a sovereign who rightly holds all political (and theological) power.

To be sure, a state of nature in a forest located next to a modern society may be inherently problematic. That one homeless man camping long-term in the national forest outside of Nederland asked a forest official when the trash would be picked up points to the problems entailed—problems that would not exist were we all in the state of nature. If modern society can no longer tolerate people living in the state of nature, then places must be found for the extricated humans within the socio-political economy consistent with their self-preservation.

In the E.U., the operative principle is solidarity. Social policy is the typical means by which governments implement the principle wherein self-preservation is taken to be a human right that a society is obligated to protect. In the U.S., the principle is scant—eclipsed perhaps by that of economic liberty within interdependence. Hence, the safety net within American society has gaps. It is only natural for people falling through them—for whatever reason—to seek self-preservation outside of society. It is also natural for people accustomed to the safety in society to fear the human landscape outside of society, where liberties given up in society are taken back up. These liberties are feared by the people in society as they have given them up in exchange for safety. Therefore, we can see, using Hobbes’ theory, that it is in the interest of the residents of Nederland to petition the government of Colorado to accommodate the forest people back in society rather than continue to fight their nearby presence by pushing them further away from society.

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1. Jack Healy, “As Homeless Find Refuge in Forests, ‘Anger is Palpable’ in Nearby Towns,” The New York Times, August 21, 2016.

Natural Rights in Europe and America: Shoring-Up Each Other’s Weak Spots

The Declaration of Independence made by the thirteen newly sovereign American states in 1776 recognizes “that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty and the pursuit of Happiness.” These rights are not dependent on any government, and thus exist equally so in the state of nature. The Declaration of the Rights of Man and the Citizen, made in Europe thirteen years later, omits any mention of a creator-deity. “Men are born and remain free and equal in rights.” The equality here is more limited, being solely in terms of rights, “man’s natural and imprescriptible rights” in particular. These “are liberty, property, security, and resistance to oppression.” We can thus compare and contrast the two sets of rights, which important implications for public policy for both America and Europe.

The entire essay is at "Natural Rights in Europe and America."

Should Entitlement Programs Be Cut?

If human beings have survival among our inalienable rights as citizens for whom both rights and duties apply, then we as a society must grapple with how sustenance can be guaranteed to those among us who are not meeting their own needs. I put it this way to highlight the lack of conditionality in the right. That is to say, if it is inalienable, then it is irrelevant whether the person is lazy or of a bad temperament.

 Sustenance or "extra" cash? Only one is a human right.   (Image source: timthethief.com)

To be sure, in 2 Thessalonians 3, the Apostle Paul  declares, “For even when we were with you, this we commanded you, that if any would not work, neither should he eat.” I suspect that many moderns, particularly in America, agree with Paul here. Unpacking the quote, I submit that a number of subterranean assumptions lurk just below the surface. We naturally assume that Paul was not referring to a woman who cannot work because she was so brutally gang-raped that she is mentally and/or physically unable to work. We assume the Apostle did not have a blind and mute old man in mind. Rather, we assume that the person is a deadbeat, seeking to have others work while he enjoys himself, or that the person has a pernicious personality and therefore cannot secure even a menial job because no one could stand being around him. The punishment we dish out against the deadbeat and the rude man is a death sentence, in effect.

That the rest of us might be engaged in self-idolatry in setting ourselves up as Judge goes without punishment in our convenient scheme. Our presumed entitlement to omniscience (all-knowing) goes under the radar screen. We presume we are fit to know why some among us do not meet their sustenance needs on their own in an interdependent modern economy, and we feel at liberty to pronounce judgment based on the motives of others that we presume to know. Perhaps the poorest among us should pronounce judgment on the rest of us! The unassuming poor in spirit could quote the following from Matthew (19:30), “But many who are first will be last, and many who are last will be first.” This line refers to the Kingdom of God, which in crucial ways turns the world’s logic upside-down or ties it up like a pretzel so the worldly wise are confounded into fools even as they count themselves as clever.

The typical rationale made by those citizens among us who do not regard sustenance as an inalienable human right in a civilized society hinges on the assumption that charity can fill the gap. Even though human beings need at least one meal a day (many of us used to three!), the assumption here is that such a demanding requirement can be met by chance as people give to charity. The fallacy here lies in presuming certainty in something that is not.

Indeed, an examination of the giving pattern of the wealthy in America suggests that sustenance is not even a priority. According to the 2011 report of the American Association of Fundraising Counsel, 32 percent of the $298 billion given away by Americans went to religious organizations, 13 percent to cultural organizations, and only 12 percent to social services. It cannot be assumed that the bulk of the money going to religious and cultural organizations went directly to sustenance for the poor.

Furthermore, the Chronicle of Philanthropy indicates that the top five donations, totaling $190 million, in New York went to Columbia University’s business school, the Metropolitan Museum of Art, and the Brooklyn Bridge Park Corporation (for the building of an indoor cycling track). Not one of the top 49 gifts went to support social services explicitly, yet somehow charity can be relied on to bridge the gap in health-care, housing and food for those who would otherwise die without such sustenance.  Rarely if even do we as a society ask whether an indoor cycling track should be conditioned on the sustenance of every citizen (or legal resident) having been satisfied. A new terminal or runway is typically viewed, at least implicitly, as having an equal (or higher) claim on our resources, societally.

Were sustenance treated as an inalienable human right to which an explicit duty of citizenship would correspond, society would be more than an aggregate of individuals out for themselves. Lest we assume that no one would work if a basic security based on the value of solidarity were known to be met, personal ambition would doubtless show itself as going beyond a concern for mere sustenance. In other words, enterprise would not falter. We have no idea how it would feel to live life with a basic, or existential, security in knowing that if the worst were to happen to us, we would not starve or be homeless or go without needed medicine for want of voluntary charity by others. We have no idea how such a basic psychological security would permeate and thus impact society, not to mention something called "quality of life."

Instead of exercising statesmanship for the good of each other, we as a body politic make it harder on even ourselves than need be because we presume that such a basic security would be at our expense and undeserved by the beneficiaries. In other words, our selfishness is ultimately at our own expense, and society itself is held back in the process. In other words, we get the cities we deserve. The sad thing is that the perpetuation of the existential insecurity is so unnecessary and ultimately in nobody’s interest. Even so, we keep stumbling over ourselves in avarice so to keep what we have, and relatedly in fear that someone might possibly get something for nothing at our expense.  In our presumed omniscience, we conveniently assume that we cannot be wrong, and this seals the deal on our small fate.

Source:

Ginia Bellafante, “Bulk of Charitable Giving Not Earmarked for the Poor,” The New York Times, September 8, 2012. http://www.nytimes.com/2012/09/09/nyregion/bulk-of-charitable-giving-not-earmarked-for-poor.html?hp

Contending Healthcare Social Contracts: A False Choice?

On March 21, 2010, the U.S. House of Representatives approved “a far-reaching overhaul of the nation’s health system . . . , voting over unanimous Republican opposition to provide medical coverage to tens of millions of uninsured Americans after an epic political battle that,” according to The New York Times, “could define the differences between the parties for years.”[1] The vote was 219 to 212. “This isn’t radical reform,” the U.S. president said, “but it is major reform.”[2] Whether that was real change is an open question. House Speaker Pelosi said, “Today we have the opportunity to complete the great unfinished business of our society and pass health insurance reform for all Americans that is a right and not a privilege.”[3] While Obama was referring to the bill’s reliance on extant private insurance companies, absent even a public option, Pelosi made explicit the change to the American social contract—access to health-care would henceforth be a right for all citizens rather than a benefit to be conferred to those able to pay from their own wherewithal and insurance. The basis of this new right was undoubtedly the human right to life, as in the right to life, liberty and the pursuit of happiness.

The closeness of the House vote suggests that the people were divided on whether the new right ought to be conferred (and/or whether it should be conferred by the U.S. Government rather than decided on a State by State basis). Sure enough, the pendulum did indeed shift.  On January 19, 2011, the U.S. House voted 245-189 to repeal the health-care law. Then, on April 15^th, the House voted 235 to 193 for a budget  that “would significantly scale back federal domestic programs and cut $5.8 trillion over the next decade."[4] Medicaid would be a set amount sent as a block grant to the States for them to use for their poor (the States or the poor having to make up for any shortfall), while Medicare would be subsidies sent to the elderly for use in their health insurance premiums. Neither the poor nor the elderly would be guaranteed access to health care. "A Congressional Budget Office review of the Ryan proposal predicted that retirees would pay more for their health care under it than they would under traditional Medicare. The agency also said the Ryan plan to convert federal Medicaid spending into block grants for states would most likely end up reducing benefits for those enrolled in the program."[5] The bill would also reduce the top tax rates for individuals and corporations. Democrats “accused Republicans of promoting a morally skewed vision of America by taking savings out of medical care for older Americans and the poor while supporting tax breaks for corporate America and the affluent.”[6] 

In effect, the Republicans in the House were rejecting the change to the American social contract passed the previous year with respect to there being a right to health-care.  Furthermore, the House Republicans were redoing the social contract with respect to the Great Society programs even before the passage of the health-care right because Medicaid and Medicare would be a fixed amount and transferred to the States (in all but funding), and limited to a fixed subsidy, respectively, rather than being open-ended commitments of the U.S. Government. The poor and retirees would have to pay more than what had been the case even without "Obamacare." In other words, the Republicans were pushing to change the social contract in the other direction with respect to the extent of the federal government's obligation, rather than merely undoing the creation of the right that occurred in 2010.

In short, two visions for a social contract pushing the House in opposite directions more or less simultaneously. Even more significant than the electoral pendulum swing in November of 2010, the existence of two different visions for a social contract contending at the same time was evident.  All of the House Republicans had opposed the health-care law in 2010 while all of the Democrats opposed the Ryan budget in 2011. Two distinct social contracts were in a tug-of-war. The assumption was that only one could be enacted, or a compromise that could only result in a third that neither vision wanted. I contend that this is a false choice--that we are making the problem harder than it need be, given our governmental system of federalism. 

The two social contract visions differ not only with respect to redistribution and the extent to which government should secure the survival of its citizens, but as to whether federalism is at all relevant.  Whereas the Democrats wanted the general government of the union to be the governmental agent in the contract, Republicans sought either a mixture of federal and state involvement or, perhaps ideally, a state by state basis on the government side of the social contract. 

Having some federal involvement would allow for a minimal governmental obligation as part of a social contract spanning the union, while involvement by the state governments would enable various social contracts such that both visions could be realized with respect to rights and obligations.  Lest “minimal” actually be “maximal,” a one-size-fits-all social contract would stymie the two mutually exclusive visions. At the same time, leaving the entire matter of social contract to the states would deny a floor of human rights for all Americans. Social contract itself is complex in the United States, as per the nature of a union of states wherein governmental sovereignty is divided between two systems of government (state and federal).  

That the debate had been allowed to funnel into a “one social contract” only scenario at the federal level essentially truncated the union into a consolidated system, as if Congress were only a national legislature, or a state legislature. In his book, Gov. Rick Perry of Texas writes that the federal system of government, "if respected, allows people of varying beliefs to live together united as Americans."[7] He notes that "we can tailor solutions to our own values and perspectives rather than trying to create national one-size-fits-all policies" while agreeing "that there are certain things we must do together."[8]  While Perry views activities of union as only those that the republics in the union cannot accomplish, union could also involve a floor of governmental obligations in keeping with what each generation determines as due Americans simply in being Americans. Yet such a criterion is vulnerable to a slippery slope so the floor feature must be safeguarded by governmental or federal design.

In conclusion, there need not be one choice between the Republican and Democratic proffered social contracts wherein only one of them exists in the United States; the Republican variant could be the law of the land in Texas, for example, while the Democratic alternative could be the social contract in Massachusetts. The only thing to be compromised would be a minimum “floor” of rights for all Americans by virtue of what it means to be an American. Such a matter of compromise would enable us to get past the false dichotomy that presumes a one-size-fits-all decision must be made. In other words, both the Democrats and the Republicans can have what they want--just not U.S.-wide.  To have their respective visions enacted somewhere in the United States means giving up the objective of seeing all of the United States in their own image. 

1. Robert Pear and David M. Herszenhorn, “Obama Hails Vote on Health Care as Answering ‘the Call of History,” The New York Times, March 22, 2010, p. A1.

2. Ibid.

3. Ibid.

4.Carl Hulse, “House Approves Republican Plan to Cut Trillions,” The New York Times, April 16, 2011, pp. A1, A12.

5. Ibid.

6. Ibid.

7. Rick Perry, Fed Up! Our Fight to Save America from Washington (New York: Little Brown, 2010), p. 26. See Skip Worden, American and European Federalism: A Critique of Rick Perry's 'Fed Up!'." 

8. Ibid.

Tax Avoidance at GE: On Corporate Income Taxation

In spite of $14.2 billion in global operating profit ($5.1 billion on U.S. operations) in 2010, GE paid no corporate income tax to the U.S. Treasury that year thanks to offsetting prior losses by GE Capital (i.e., bad loans).  In spite of that unit having received TARP funds from U.S. taxpayers, the corporation was able to avoid paying any income tax. This seems like Rousseau's social contract run amuck: corporate welfere in exchange for nada.  Such a modus operendi is in line with the corporate mission: to economize in the sense of maximizing (or satisficing) what is taken in while minimizing what must go out.  In other words, a corporation aims to turn itself from a productive, lean throughput to a concentration of capital in its own right.

In terms of U.S. corporate income taxation, the extent of resources that corporations devote to minimizing what they owe the U.S. Treasury is money that could be better spent, or invested, in productive enterprise. For example, G.E. files returns in 250 jurisdictions and has a staff of 975 working in the corporation's tax department. Even if those people pay for themselves and more by reducing the company's tax liability, the company could eliminate that entire department and orient its global operations in terms of efficiency rather than taxation were income tax applied only to individuals.  The legal person "doctrine" aside, corporations are not citizens; rather, they are groups of citizens. 

Robert Samuelson suggests that the top corporate income tax rate be reduced from 35%, which is one of the highest in the world. He argues that the 15% rate in individual income taxation on dividends and capital gains should be increased.[1] The effect would be regressive, for the top one percent receive two-thirds of all the capital gains and dividends. At the very least, the 15% is relatively low in the individual income tax system and most of the taxpayers subject to the tax could afford a higher rate.

Samuelson does not go far enough, for even with a lower top corporate rate companies would retain their tax departments and steer profit into countries with low tax rates (for there would still be differentials between countries). Theoretically, it does not make sense to tax both corporate income and dividends.  Furthermore, corporate income taxation treats companies as end-points rather than as throughputs. The implications of taxing individuals rather than corporations are staggering not only for more efficient productive investment, but also for attracting foreign direct investment to the U.S. In addition, public accounting firms could eliminate their tax departments and focus all of their attention on auditing--an endeavor made all the more important on account of the misleading financials on Wall Street leading up to the financial crisis of 2008.  Rather than getting headaches over the intracacies of tax rules, public accountants could devote more attention to whether it is enough to follow GAAP in giving an unqualified opinion.

In short, taxation ought not to have so much gravity in orienting corporate America.  Instead, business would do much better in focusing more on building better mousetraps. Individuals who benefit financially from the productive enterprise would be taxed, perhaps even without all the deductions that enable them to avoid being taxed. Imagine a tax-returnless system of individual income taxation involving a fixed low rate applied like a fee on any income taken in, whether from wages, salary, dividends or capital gains. Ironically, by simplifying taxation, more of it could be collected even as businesses are left to do business.

1. Robert Samuelson, "The Real GE Scandal," Newsweek, April 11, 2011, p. 21.