State of the Union

Building Conservative Prison Reform

Talk of bipartisan prison form has rallied spirits in Washington in recent weeks, and was a topic of hope at CPAC last month. Though American politics may suffer schismatic divides in many issues, maybe—just maybe—we can find agreement here.

But it’s interesting how many are framing the debate—while the left’s motivation is largely viewed as humanitarian, the right’s motives are seen as decidedly pragmatic: prisons are costing us too much. Let’s change that.

Of course we can appreciate this pragmatism, but where is the principle and conscience in our prison reform views? Do conservatives only think in dollar signs?

In a conversation with Idaho Rep. Raúl Labrador some weeks ago, he agreed that prison reform makes fiscal sense—but expanded conservative interests into the ethical sphere. He argued that as a Christian and defender of justice, our system ought not consign so many people to rotting in jail. “Because of the fear of crime,” he said, “We keep making it easier and easier for the state to take away your liberty and your freedom … we shouldn’t be throwing people in jail for long periods of time over non-violent offenses.”

Is this something other conservatives should be on-board with? Take solitary confinement, for instance: as conservatives, should we support it—and to what extent is it also deserving of reform?

A Wednesday piece by Lisa Guenther for Aeon provides some good philosophical reasons to oppose solitary confinement. She argues that, since man is (as Aristotle put it) a “social animal,” it is spiritually, emotionally, and psychologically deleterious for him to be alone. We depend on “the other” to undergird and reinforce our experience, our reality. Without that, the soul and mind are cut loose:

When we isolate a prisoner in solitary confinement, we deprive him of this network of perceptual and existential orientation. He might still have an experience of the table that is bolted in place in his cell, and he might still have the memory of what tables mean for other people. But the lived experience of these objects as both for-me and for-another is, by and large, denied to him. The ‘there’ that would otherwise anchor his experience of the world from ‘here’ has been pulled up, casting him adrift without a clear view of the horizon.

We may live in a rather individualistic society—but we never have to experience life in total solitude. “Only the prisoner in solitary confinement is forced to occupy the position of an isolated individual, and to bear the full weight of his existence alone,” writes Guenther. Traditional conservatism opposes individualism—it upholds the important and reforming nature of community. Should this principle extend to our penal system?

It depends, to some extent, on what you think prison is for. Those who believe in “locking up prisoners and throwing away the key” have a good, strong understanding of human depravity. But their belief in redemption is somewhat lacking. This is, perhaps, the largest problem I see with solitary confinement: it leaves absolutely no room for reform of the person. Instead, it turns the soul further toward its inner depravity, and keeps it locked there, away from “the other.” This may keep the individual from harming others—but it also leaves no room for the soul to grow or emerge from its inner prison.

True conservative prison reform should consider the impact such measures have on the human psyche and soul—not merely their monetary cost.


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New Leaks Show CIA’s Contempt for Congress

An interrogator isn’t just focused on extracting information, but on controlling it. When a closer sits down with a prisoner, she wants her prey to be entirely dependent on her for information about possible sentences, news of the outside world, or even the time of day, so she can manipulate or bargain with the truth as serves her needs.

As revelations from the Washington Post show, this is precisely the relationship that the CIA has been cultivating with Congress throughout the War on Terror. The recent allegations that the CIA hacked into the computers of Congressional staff and tried to erase damaging documents is only the latest salvo in the agency’s war of obfuscation. The CIA has overstepped its authority and then lied to Congress, to prevent the people’s representatives from reining the operatives in.

Current and former U.S. officials spoke anonymously to the Washington Post about the content of the classified report that the CIA has tried to sideline. Although the report on CIA detention and interrogation was completed in 2012, it has been tied up in bureaucratic red tape, and not one page of the 6,300 has been declassified. The Senate Intelligence Committee is expected to vote this Thursday to recommend that Obama declassify the executive summary of the report.

Until then, judging by the leaks, it looks more and more like the CIA was engaged in unlawful practices. Not just the morally unlawful practice of waterboarding, which was nevertheless approved from on high, but other forms of torture that had no official sanction. The Washington Post describes the CIA’s treatment of the nephew of Khalid Sheik Mohammed:

At the secret prison, [Ammar al-]Baluchi endured a regime that included being dunked in a tub filled with ice water. CIA interrogators forcibly kept his head under the water while he struggled to breathe and beat him repeatedly, hitting him with a truncheon-like object and smashing his head against a wall, officials said.

This practice of near drowning and beating has never been authorized as an interrogation procedure. But, according to the Human Rights Watch, other prisoners at the same secret prison received the same treatment. CIA doctors stood by during these abuses, carefully checking the health of the prisoner, but serving the interests of the agency, helping the torturers push the bodies of their prisoners as far as they could go without killing anyone, presumably to avoid paperwork and oversight.

These acts of abuse did not result in useful intelligence. The Congressional report makes it clear that some prisoners were waterboarded after giving up useful data, and, although the brutal treatment produced no new information, the original revelations were used as evidence for the necessity of the technique. According to one of the Washington Post‘s anonymous sources:

“The CIA described [its program] repeatedly both to the Department of Justice and eventually to Congress as getting unique, otherwise unobtainable intelligence that helped disrupt terrorist plots and save thousands of lives,” said one U.S. official briefed on the report. “Was that actually true? The answer is no.”

The CIA might be able to claim it concealed the full scope of its activities from the American people due to national security reasons, but it’s very hard to believe that briefing Congress honestly would give terrorists an edge.

The evidence suggest that the CIA has gone rogue—imprisoning and torturing suspects, misleading their superiors, and trying to hide the evidence. The declassification of Congress’s report can’t come soon enough, so we can assess the damage the agency has done, and decide how to keep it under proper supervision and surveillance.


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Even If Hobby Lobby Wins, We Lose

Today’s Supreme Court oral argument, in the case of Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius, is correctly understood to pit defenders of religious liberty against those who believe that the government has a compelling interest in requiring employers to provide contraception, abortifacients, and sterilization services through their healthcare policies. In significant part, the case hinges on whether the companies—privately held businesses whose owners are unquestionably deeply religious individuals, and who run their businesses informed by those views—can be considered “persons” under the Religious Freedom Restoration Act. I, like many Christians, hope their case prevails.

But while the businesses are often characterized as “family-owned businesses,” each is a national business with hundreds of employees and multi-state operations. Hobby Lobby is by far the larger chain, with 640 stores that employs 28,000 individuals. While it has religiously-themed goods, plays Christian music, and closes on Sundays, in most respects it is identifiably a “big-box” store that can usually be found in major retail corridors, surrounded by acres of concrete and provisioned largely by merchandise made in China. While it is a “family-owned” business, it is hardly a mom-and-pop shop.

The dominant narrative—religious liberty against state-mandated contraception—altogether ignores the economic nature of the case, and the deeper connections between the economy in which Hobby Lobby successfully and eagerly engages and a society that embraces contraception, abortion, sterilization, and, altogether, infertility. Largely ignored is the fact Hobby Lobby is a significant player in a global economy that has separated markets from morality. Even as it is a Christian-themed brand, it operates in a decisively “secular” economic world. It is almost wholly disembedded from any particular community; its model, like that of all major box stores, is to benefit from economies of scale through standardization and aggressive price-cutting, relying on cheap overseas producers and retail settings that are devoid of any particular cultural or local distinction. The setting where one finds Hobby Lobby near us—on Grape Road in nearby Mishawaka—is about as profane imaginable a place on earth, accessible by six lanes of concrete roads where there is a heavy concentration of large chain retailers, where it anchors a sensory-deadening row of retail store fronts that border acres of cracked and barren pavement, awash in discarded plastic bags and crumpled fast food wrappers. On the rare occasion that I enter the store, even amid the Chinese mass-produced crosses and the piped in Christian music, under the endless florescent lighting and displays carefully-managed to optimize impulse buying, I am hardly moved to a state of piety, prayer, and thanksgiving. I am, like everyone else, looking for the least chintzy item at the cheapest price.

Hobby Lobby—like every chain store of its kind—participates in an economy that is no longer “religious” or even “moral.” That is, it participates in an economy that arose based on the rejection of the subordination of markets embedded within, and subject to, social and moral structures. This “Great Transformation” was detailed and described with great acuity by Karl Polanyi in his masterful 1944 book of that title. He described a sea change of economic practice that took place especially beginning in the 19th-century, but whose theoretical groundwork had been laid already in the 17th- and 18th-centuries by thinkers like Thomas Hobbes, John Locke, and Adam Smith. As he succinctly described this “transformation,” previous economic arrangements in which markets were “embedded” within moral and social structures, practices, and customs were replaced by ones in which markets were liberated from those contexts, and shorn of controlling moral and religious norms and ends. “Ultimately that is why the control of the economic system by the market is of overwhelming consequence to the whole organization of society: it means no less than the running of society as an adjunct to the market. Instead of economy being embedded in social relations, social relations are embedded in the economic system.” Read More…

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Bill Kristol’s Tea Party Constitution

Jonathan Chait amusingly shoots at the fish in the barrel that is Bill Kristol’s recent column urging Republicans to “get off the sidelines” and prevent another rout in 2016.

Of Kristol’s evocation of the “original Constitution”—and, by implication, modern liberalism’s trashing of it—Chait writes, “The ‘original Constitution’? The one that permitted slavery? Does Kristol want to do away away with the 11th through 27th amendments to the Constitution? I’m sure he does not. But if Kristol obviously does not mean what he actually wrote, what does he mean?”

We all know the drill by now: the “original,” pre-Progressive era Constitution was not designed for the expansive power to regulate interstate commerce that Congress now enjoys; for “transfer payments” or the redistribution of wealth; or, generally speaking, for any interference between the consensual acts of individuals in the marketplace.

I return to it from time to time, because it’s such a perfect distillation of the kind of jurisprudence that infuses the tea party and liberty movements, and Kristol’s musing furnishes me another excuse: Ken Cuccinelli’s legal brief against Obamacare’s individual mandate in the Texas Review of Law & Politics.

In it, Cuccinelli answers Oliver Wendell Holmes’s famous Lochner dissent that “a constitution is not intended to embody a particular economic theory … The Fourteenth Amendment does not enact Mr. Herbert Spencer’s social statics.” (Hence Chait, lazily switching between upper- and lower-case “c”: “The Constitution is not a vague set of ideals; it’s a clear set of rules. That’s the whole point of a Constitution.”)

Cuccinelli says Holmes was arguing with a straw man. Of course it’s nonsense to claim the Constitution or the 14th Amendment embody Social Statics. But could Holmes plausibly deny that it embodies John Locke? “This would have been regarded as puzzling at best and at worst demonstrably false.” So there, fine: Forget Herbert Spencer. We can appeal to Locke (and Blackstone, and Hooker) and basically arrive at the same libertarian defense of economic rights. Sic utere tuo ut alienum non laedas: so use your own as not to injure another’s property.

For now, let’s table this aspect of the debate. Readers know I’d rather live under Chait’s Constitution than Cuccinelli’s. My point here is this: Bill Kristol is a terrible, horrible, no good, very bad ambassador for the Tea Party Constitution!

A constitution whose notion of executive power is expansive enough to satisfy the likes of Bill Kristol and John Yoo should have no trouble accommodating social insurance programs or public assistance for the needy.

I’m sorry: you don’t get to have your kickass policy suite of torture, democratism, intergalactic swamp-draining, World War XXIV, and “We’re all Everybody-ians now,” and also complain about food stamps or federal insurance exchanges.

Tea Party and liberty movement conservatives have every right to argue for an originalist interpretation of individual economic rights.

Bill Kristol does not.

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Arizona’s Discrimination Fight and the Politics of Tolerance

“Religious Right Cheers a Bill Allowing Refusal to Serve Gays.” Thus did the New York Timesheadline, leaving no doubt as to who the black hats are, describe the proposed Arizona law to permit businesses, on religious grounds, to deny service to same-sex couples. Examples of intolerance provided by the Times:

In New Mexico, a photographer declined to take pictures of a lesbian couple’s commitment ceremony. In Washington State, a florist would not provide flowers for a same-sex wedding. And in Colorado, a baker refused to make a cake for a party celebrating the wedding of two men.

The question Gov. Jan Brewer faces?

Should Christians, Muslims, Mormons who refuse, on religious grounds, to serve same-sex couples—that photographer, that florist, that baker, for example—be treated as criminals? Or should Arizona leave them alone?

“Religious freedom,” said Daniel Mach of the ACLU to the Times, is “not a blank check to … impose our faith on our neighbors.” True. But who is imposing whose beliefs here? The baker who says he’s not making your wedding cake? Or those who want Arizona law to declare that either he provides that wedding cake and those flowers for that same-sex ceremony, or we see to it that he is arrested, prosecuted and put out of business? Who is imposing his views and values here?

What we are seeing in Arizona in microcosm is what we have witnessed in America for half a century: the growing intolerance of those who preach tolerance and the corruption of the concept of civil rights.

We have seen the progression before. In 1954, the Supreme Court declared that segregation in public schools was wrong and every black child must be allowed to attend his or her neighborhood school. By 1968, the court was demanding that white children be forcibly bussed across entire cities to insure an arbitrary racial balance. Under the civil rights acts of the 1960s, businesses were told that in hiring, promotion, pay, and benefits, black and white, men and women must be treated alike. Equality of opportunity.

But, soon, that was no longer enough. We needed equality of result. Corporations were ordered to maintain extensive records of the race, gender, ethnicity and sexual preferences of their entire work force to prove they were not guilty of discrimination. And if your work force is insufficiently diverse today, you are a citizen under suspicion in a country we used to call the Land of the Free. Consider how far we have come.

Virtually all decisions to hire, fire, promote or punish employees, to oversee the sale and rental of housing, to ensure that all minorities have access to all restaurants, hotels and motels, are under the jurisdiction of these minions who are right out of Orwell’s 1984. Scores of thousands of bureaucrats—academic, corporate, government—are on watch, overseeing our economy, patrolling our society, monitoring our behavior. Read More…

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Affirmative Action’s Personal Costs and Consequences

Rep. Shirley Chisholm
Rep. Shirley Chisholm

Some children are products of their environments, while others are products of their communities. I was neither. Growing up in Coney Island in the early 1990s, my immediate surroundings held few opportunities for a child whose ambition stretched beyond the boardwalk. By the age of four, I could read and write at a first-grade level, and my collection of Dr. Seuss tales bored me. Determined to give me the best education available, my mother took me to every private school that granted me an interview until one accepted me and awarded me a sufficient scholarship to attend. I stayed at that school all the way through high school, went on to college, and am now in the fledging stages of a career in journalism.

Here’s the question: what color is my skin?

Better yet—should it matter?

Technically, I am racially mixed: my father is black and my mother is Hispanic. I’ve never seen myself as exclusively one or the other, but as a unique combination of both. My heritage, like my skin color and gender, are aspects of me that contribute to my identity, but do not tell the whole story.

Over the years, I have been trapped by the sense that because of my race—not in spite of the historical baggage that accompanied it—I was afforded the opportunities granted to me. On a good day, my love of learning and work ethic came second and third, respectively, to my ethnic background. The assumption was that I was an indigent child rescued by a benevolent program that put me on the path to success after polishing my uncouth mannerisms. I was keenly aware that I was a guest in a foreign land, because I was often sought out by my peers to provide perspective to bolster an already formed opinion, but was not engaged with based on the quality of my ideas. That a minority student could matriculate at a private school having skipped the polishing step was apparently so rare that I was perceived as odd, and never broke free from that mold.

Steven L. Carter, a Yale Law professor, aptly sums up the feelings of inadequacy in the introduction of his book Confessions of an Affirmative Action Baby: “…labels, too bedevil the black intellectual, and many of them, as though required in truth-by-advertising law, are in the form of cautions…not least, qualifications for one’s position: ‘Warning! Affirmative Action Baby! Do Not Assume That This Individual Is Qualified!’” I eventually tired of the implicit expectation of relying on identity politics to advance my education, and, for a variety of reasons, switched political affiliations. On this side of the aisle, my skin color is second to my work ethic, which pleases me. Affirmative action, in granting me access to institutions that fostered my potential, ignored the rest of me because it did not fit the stereotype of a refugee from the inner city. Read More…

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Obama Announces Mild Surveillance Reforms

Just as our army has, in President Obama’s famous debating words, moved beyond horses and bayonets, so too has our surveillance moved past using hot air balloons to count campfires. After demonstrating once again his wide-ranging knowledge of obsolete military technologies, Obama used his long-awaited speech today to frame broad new surveillance programs as a similar modernization for cyberwarfare.

He acknowledged that such modernization of spycraft had led to overreach, though he described surveillance and interrogations conducted under his predecessor’s term as “contradict[ing] our values” while the excesses under his own watch were ascribed to intelligence officers’ passion for defending their country. However, in order to rein in the expansion of spying, especially on American citizens, President Obama announced four major structural changes:

First, the president has approved a new directive meant to provide guidance to intelligence agencies, so they have clearer instructions on how to balance goals of protecting national security, obeying treaties we have signed, respect for civil liberties, and other concerns.  The preferred way to make trade-offs was not detailed in the president’s speech, though he did disclose that the priorities set by the directive will be reviewed annually. Various new staff positions will be created in the executive branch to monitor compliance and recommend further revisions.

Second, President Obama listed several changes intended to increase transparency and set limits on any future overreach. He encouraged the declassification of Foreign Intelligence Surveillance Court opinions, when appropriate, so that citizens have some idea what the current interpretation of privacy law is. Additionally, he called on Congress to establish a panel of advocates from outside government to act as devil’s advocates in some cases before the FISA court. At present, the FISA court, which approves wiretaps and other surveillance requests, is not an adversarial system. Only representatives of the government present their case, the surveilled cannot hear or dispute their arguments.

Third, the president addressed concerns specific to Section 702 of the FISA Amendment Act, which allows intelligence agents to intercept massive volumes of communication for later data mining and review.  Currently, when the federal government uses a national security letter to force a private company to turn over troves of user data, the company can’t reveal to their users that their security has been compromised. President Obama would tweak national security letters so the companies are not silenced indefinitely, and the secrecy would have an expiration date. Unless, he added, it was prudent to renew the gag order. Read More…

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Global Slavery Index: Measuring Millions

Kevin Bales, co-founder of Free the Slaves and well-known human trafficking expert, first estimated there to be 27 million slaves worldwide. This was an approximation offered in his 1999 book Disposable People. Since then, the topic of human trafficking has garnered international attention—yet for the past 14 years, the estimated number of slaves worldwide rested at Bales’ original approximation. But now, with a team of researchers at the Walk Free Foundation, Bales has introduced a new number: 29.8 million. The new “Global Slavery Index 2013” seeks to measure international slavery and human trafficking, and to provide informational tools for institutions fighting the problem.

Two potential weaknesses of such a report lie in its definition (how broad or specific it is, how easy to measure) and its methodology: how does one measure the global population of slaves worldwide, when slavery is an illegal and clandestine activity? The report’s authors explain their methodology, which focused primarily on secondary collection (via both governmental and non-governmental reports) and representative random sample surveys. Nick Grono, CEO of the Walk Free Foundation, told The Guardian, “Measuring a hidden crime is very challenging, but there are efforts to measure domestic abuse and drug trafficking. A lot of it boils down to taking the best data on reported issues and then looking at the scale of the unreported or ‘dark’ problems.”

The index’s definition of slavery and human trafficking has received some skepticism. Bridget Anderson, Deputy Director of the Centre on Migration, Policy, and Society at Oxford, told The Guardian this report gathers “unjust situations” around the world and labels them as “slavery.” “You have a definitional problem, everything depends on the definition and if you use tricky words like ‘forced’, you are already straying into difficult territory,” she said. Here is an excerpt from the report’s definition section:

In 2013, modern slavery takes many forms, and is known by many names. Whether it is called human trafficking, forced labour, slavery or slavery-like practices (a category that includes debt bondage, forced or servile marriage, sale or exploitation of children including in armed conflict) victims of modern slavery have their freedom denied, and are used and controlled and exploited by another person for profit, sex, or the thrill of domination … The chains of modern slavery are not always physical – sometimes escalating debts, intimidation, deception, isolation, fear or even a ‘marriage’ that is forced on a young woman or girl without her consent can be used to hold a person against their will without the need for locks or chains.

One can see Anderson’s point. Not only does this definition include a plethora of hidden, illegal criminality—it also includes criminality across a broad variety of platforms: the trafficking of persons across borders, private commercial labor, sex slavery, child soldier kidnappings, and forced marriages. Also, from reading Bales’ books and a variety of other books on the subject, I have learned “coercive labor” situations often do involve pay. But they involve pay in ridiculously minuscule amounts, offset by mountains of employer-determined debt. Thus, the “bondage” described is of a tricky and hidden nature.

The report’s definition is not necessarily wrong. It is good to have some broad (albeit sketchy) statistics on the issue. But Grono himself admitted “the data is not that strong; we want to be open about this. If a government says they don’t agree [with the data], we will say great, let’s work with a national statistics office to do a study across the country to try and analyse the scale of the problem.”

While child and forced marriage are awful human rights abuses, should they be included in the Global Slavery Index? Perhaps so—but consider, we now have a conglomeration of commercial, domestic, and sexual exploitation in the same dataset. How does one begin to parse a number so large? The index’s inclusion of basic law information for the top 10 worst countries in the index could be helpful—if one fights trafficking in Mauritania, Haiti, Pakistan or India. But this is a limited contribution.

This is not meant to be harsh—the report’s authors are working for a noble cause. But one hopes they can improve the index with time. Perhaps a next step would be to specify data according to definitional groupings. What if one was to apportion the numbers for each nation according to commercial, domestic, and sexual slavery (perhaps another category for child soldiers, as well)? It would require more work, of course, but this division would allow for more practical data offerings. 29.8 million is a horrid and shocking number. But it is also, unfortunately, a rather useless one at this point.


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Government Shutdown and the (Actual) District of Columbia

In light of the impending government shutdown, D.C. Mayor Vince Gray and the D.C. Council have seized the opportunity to fight for their city’s autonomy by declaring every District governmental employee an “essential” employee. If the federal government does shutdown, the District will continue to run, business as usual. While Gray’s stand leaves District residents breathing a sigh of relief that their garbage collection will continue, the move stretches the limits of charitable interpretation.

According to Section 1, Article 8 of the Constitution, Congress has the power to “exercise exclusive legislation in all cases whatsoever, over the district.” The District government falls under federal control, and so under the Antideficiency Act. Congress passed the Antideficiency Act in 1884, the AP reports, in order to gain greater financial control over federal agency spending. However, the legislation was more formal than practical, and “agency chiefs…assumed Congress didn’t want them to turn off the lights and go home….This look-the-the-way system worked for decades.” That is, until Attorney General Benjamin Civiletti interpreted the bill as a ban on governmental work lacking federal funding approval. Although he moderated his interpretation to allow essential government services, such as the military, to continue even without an approved spending bill, his reading has ruled to the present day.

The District is technically under federal control; it exists as the seat of the federal government, independent of any particular state’s jurisdiction. However, the District is not just an amalgamation of governmental buildings: it is also home to 632,323 tax-paying individuals who depend on local services, such as the DMV and garbage collection. These residents voted in April earlier this year to approve a charter amendment securing budget autonomy from Congress; that measure is not set to go into effect until January 1, 2014. In the meantime Mayor Gray has argued that “it is ridiculous that a city of 632,000 people—a city where we have balanced our budget for 18 consecutive years and have a rainy-day fund of well over a billion dollars—cannot spend its residents’ own local tax dollars to provide them the services they’ve paid for without Congressional approval.” Thus, his justification for expanding the word “essential” to cover all District employees.

As a resident of the District, I have a certain sympathy for Gray’s position: I, too, hope that my trash continues to be removed every Wednesday morning. However, redefining the word “essential” in a game of political chicken with the Office of Management and Budget overreaches the District’s current political limits. The contract of our country, for which the District serves as the seat, is that our political proceedings are not intended to rest on the whims of those in whom we have invested governmental authority. We have legal recourse to change laws that we disagree with, and the District did just that by passing the referendum going into effect next year. Washington Post columnist Robert McCartney even suggests that by employing the District’s contingency fund, a stand-off between local and federal authorities might be entirely (legally) circumvented.

Like the Affordable Care Act, D.C.’s local subjection to federal whims may be bad policy. The answer to bad policy, however, is not civil disobedience on a governmental scale. The D.C. Council, though they may want to do so, cannot justly achieve their autonomy by stretching a federal word past its breaking point. Nor can the House Republicans justly attempt to undo one law, Obamacare, by shutting down the entirety of the government. The answer to bad policy is politics, conducted with respect for the rule of law and the integrity of our governing institutions.


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Should the Government Mandate Vaccinations?

Vaccination has been a widely adopted practice in the U.S. since the very beginning. Thomas Jefferson himself was a great proponent–particularly of the smallpox vaccination, which he received shortly after its development in 1796.

Yet last week, in North Carolina’s Guilford and Forsyth counties, as many as 1,400 students faced suspension because their parents failed to vaccinate them. Those parents have opted out of the medical practice: their children have not received the required tetanus, diphtheria, and pertussis (whooping cough) vaccine, commonly known as TDaP. According to North Carolina state law, children must have up-to-date vaccinations or face suspension.

The decision to vaccinate doesn’t merely affect the child in question, but can also affect a family’s community by threatening the health of other children. It pushes a family decision into the public arena. Some people, such as Phil Plait, argue that the community impact is so great, the government is right to mandate vaccination. Plait, despite his personal libertarian leanings, explains:

In some areas, public school authorities have mandated that students be vaccinated for various diseases, and that of course can run afoul of parents’ beliefs. I’ve wrestled with this problem for a while, and I eventually came to the conclusion that a parent does not have the right to have their child in a public school if that child is unvaccinated … It puts other children at risk.

The societal aspect Plait references is “herd immunity.” Herd immunity is “when a critical portion of a community is immunized against a contagious disease, [so] most members of the community are protected against that disease because there is little opportunity for an outbreak.” David Perry frames the problem this way:

Happily, in a population of vaccinated people, infectious but preventable diseases have trouble spreading even to the immunocompromised. But herd immunity breaks down when vaccinations are not administered to all who can medically receive them. At that point, people who chose to refuse vaccinations endanger those who had no choice.

“Those who had no choice” refers to individuals born with immunodeficiency disorders. Such individuals are protected if their community is, for the most part, vaccinated. But the more their peers refuse vaccination, the more at-risk these individuals become. The possible societal fallout explains why so many support vaccine mandates. Yet while such mandates are well-intended, particularly considering children who can become ill and even die from preventable diseases, the question of liberty still remains. When should the government demand vaccination from dissenters? Can the government, as the Center for Disease Control puts it, employ “the police power of the state” to coerce parents against their will and perhaps consciences?

Vaccination could be a strong case for governmental health mandates: no one wants a child to die from a preventable disease. Nevertheless, if the government has a right to mandate vaccination because “it knows best,” it may slide into legitimating other less crucial mandates. Many people agree that children should receive vaccination, but such agreement should not authenticate governmental coercion. As it currently stands, these mandates require children in government-funded schools to vaccinate their children. However, parents need not enroll their children in such schools. This seems a just arrangement.

America has not yet reached a level of non-vaccination worthy of governmental intervention; hopefully citizens will recognize the medical and societal value of Plait’s argument before we reach that point. “If you want to rely on the public trust then you have an obligation to the public trust as well,” he said. “And part of that obligation is not sending your child to a place with other children if they aren’t immunized against preventable, communicable diseases.”

Ultimately, while there is a clear medical case for vaccination, some amount of wariness is justifiable. Liberty and freedom, however, require more than doing as we please: they require a consciousness of the community, a dispassionate and informed evaluation of the facts, and decision-making based on evidence of what is best for both the individual and society as a whole. Some parents—for religious, philosophical, or other reasons—may still choose to opt out of vaccination, and thus out of government programs like public school. That is their prerogative. But such parents must realize that by opting out, they are also putting other children at risk.


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