Prohibition, Volstead Act, and the Obnoxious Dries

Stephen Kershnar

Lessons from Prohibition

Dunkirk-Fredonia Observer

December 1, 2019

I recently rewatched Ken Burns’ fascinating documentary on prohibition. Prohibition was a 1920-1933 nationwide ban on production, importation, transportation, and sale of alcohol. The Eighteenth Amendment to the Constitution and the Volstead Act that filled it out didn’t ban alcohol possession and consumption. One of the interesting questions about it is whether Prohibition worked.   

One 1991 study by Harvard’s Jeffrey Miron and Stanford’s Jeffrey Ziebel found that during Prohibition, per capita alcohol usage initially decreased to 30% of the pre-prohibition level. They argue that alcohol use later bounced back to only 60-70% of its pre-prohibition level. A 2017 study by several Simon Frasier University economists found that in the six years following prohibition (1934-1939), the end of Prohibition caused as many as 27,000 additional infants to die. On the other hand, Ludwig von Mises Institute economist Mark Thornton argues that per capita alcohol usage dropped precipitously before Prohibition and that if Prohibition had continued past 1933, it likely would have would have reached pre-prohibition level.

On health and crime, the studies are again mixed. One study found that death rates from cirrhosis of the liver, considered a proxy measure for alcohol consumption, declined by 10-20%. Another study found that alcoholism-related deaths, alcoholic psychosis admissions, and arrests for public drunkenness declined when Prohibition and related cultural changes went into effect. Again, however, it is unclear whether this resulted from forces that preceded Prohibition. Thornton argues that cirrhosis deaths bottomed out during World War I and then rebounded.

There is some evidence that Prohibition caused a significant increase in serious crime (for example, assault, burglary, murder, and robbery). This can be seen in the dramatic decline in these crimes once Prohibition was lifted. On the other hand, Harvard’s Mark H. Moore argues that violent crime didn’t dramatically increase during Prohibition. University of California at Chico’s Kenneth Rose argues that the statistics from the period are so poor that no conclusion regarding Prohibition’s effect on crime is warranted.

During Prohibition, the US.  Government was despicable. Writing in Slate, Deborah Blume notes that federal officials wanted to prevent industrial alcohols from being stolen by bootleggers and resold for consumption. To prevent this, they mixed it with a deadly poison. New York City medical examiners told them not to because the alcohol would be resold and end up killing people. It certainly did. The poisoning program killed at least 10,000 Americans. If another government had done this, it would have meant war.

American people’s liberty should not depend whether the latest scheme to improve people’s lives works. It is wrong for a do-gooder to use a gun or physical violence to prevent her fun-loving neighbor from being promiscuous, drinking whiskey, overeating, or smoking even if the prevention would make the neighbor’s life go better. It is even worse if the do-gooder were to prevent her neighbor from having such fun so that the do-gooder could shield her precious children from these recreational activities or make sense of her husband’s or son’s senseless death. If this is true for individuals, it is true for collections of individuals. The moral character of violence and coercion doesn’t change merely because more people are involved. Nor does it change when do-gooders act through the government rather wielding guns themselves.  

Unsurprisingly, do-gooders such as the Anti-Saloon League supported changing the Constitution to allow for federal income taxes. The Sixteenth Amendment’s passage made the Eighteenth Amendment’s passage more likely because it reduced government’s dependence on alcohol-related taxes. The Women’s Christian Temperance Union wanted to prohibit polygamy, prostitution, and tobacco. It also widely promoted educational material that included outrageous lies about alcohol. When it comes to improving adults and protecting children, a do-gooder’s work is never done.

What is interesting is how with time this lesson has been lost. CNN reports that in 2017, 70,000 Americans died from overdose. Despite a federal prohibition on the unauthorized sale and consumption of opioids, 48,000 of these overdose deaths were from opioids. This catastrophe is taken as evidence that more police officers and specialized courts are needed as are more and harsher prison sentences. This despite the fact that unauthorized opioid distribution and possession are already felonies. With the federal prohibition on these drugs working so disastrously, one wonders why anyone would want more of the same.  

Without the Eighteenth Amendment, Prohibition would have been unconstitutional. The federal government was not merely regulating interstate commerce when it banned alcohol production and sale within a state. Nor was the ban a necessary and proper means by which the federal government executed one of its other constitutional powers (see Article I Section 8). As a result, without the Eighteenth Amendment, the people would have the right to use alcohol. The right to regulate it, if there were such a right, would be held by the states. Unlike alcohol prohibition, federal drug prohibition is now considered constitutional. Some of the judges deciding such cases and police officers enforcing such laws even took an oath to uphold the Constitution.

Santayana famously said, “Those who cannot remember the past are condemned to repeat it. Most Americans still can’t legally buy or use marijuana. Writing for The Washington Post, Christopher Ingraham points out that in 2016 there were almost as many marijuana users as cigarette smokers (55 versus 59 million). Surgeon General C. Everett Koop called for a cigarette-free society. Transportation Secretary Elizabeth Dole thought that the national drinking age could reasonably be set at 24. The Centers for Disease Control recently proposed prohibiting certain flavored vape products in order to, you guessed it, protect the children. Thirteen Democratic candidates want to criminalize and confiscate people’s AR-15 rifles, despite the fact that Americans own 5-10 million of them.    

Prohibition is a warning from the past. We should heed it.

Did the Constitution permit Southern states to secede from the United States?

Stephen Kershnar

The Civil War and Secession

Dunkirk-Fredonia Observer

November 18, 2019

I recently rewatched Ken Burns’ outstanding Civil War documentary. It raised the interesting issue of whether the Constitution allowed Southern states to secede.

The legal status of secession is independent of its moral status. Slavery was a monstrous evil and eliminating it justified killing some people and breaking their things. Whether the benefit of eliminating slavery was greater than the cost of 620,000 dead soldiers, many more badly wounded or maimed, and half an economy wrecked is a discussion for another day.

It is not entirely clear whether the Constitution permitted secession, but it probably did.  First, while the Constitution is silent on whether states had a legal right to secede, there is good reason to believe that some of the people who ratified it intended that it permit secession. In addition, when it was passed, many people likely understood it that way.

In 1798 and 1799, Kentucky and Virginia passed resolutions that asserted that the states created the federal government by contract and had a right to judge whether the federal government violated the contract. Implicit in these resolutions was the notion that the states may secede were the federal government to violate the contract. This was one of the reasons the states had such a right. Significantly, James Madison and Thomas Jefferson authored the resolutions. Madison and Jefferson were the fathers of the Constitution and Declaration of Independence respectively.

There is a problem interpreting Madison’s intention. He and fellow Federalist Papers authors Alexander Hamilton and John Jay argued that the Constitution did not permit secession. There is thus an issue as whether Madison and other founding fathers viewed federal tyranny as justifying secession or revolution. The former makes more sense in that making the sort of judgment needed to justify a revolution doesn’t require resolutions reserving various legal rights.

Other signatories and early American leaders understood the Constitution as permitting secession. Consider, for example, President James Buchanan, Vice President John C. Calhoun, and founding father Gouverneur Morris. Still, other early American leaders, such as President Andrew Jackson, denied that it permitted secession.

The people who drafted the Constitution were well aware of the issue of secession. If they had wanted to prohibit it, they likely would have done so.

In addition, the secession-permitting view makes sense of the fact that the Constitution was ratified only when the states withdrew from the Articles of Confederation. This withdrawal happened despite the Articles’ purporting to create a perpetual union. Similarly, the U.S. permitted Texas to withdraw from Mexico despite the Mexican constitution not permitting it to do so. The recognition of states’ right to withdraw from contracts similar to the Constitution would be odd if the Constitution did not also include a similar right. 

Second, the structure of the country following the ratification of the Constitution supported a right to secede. The delegates who authorized the Constitution did so on behalf of the states. The states authorized the Articles of Confederation, the Constitution’s predecessor. In addition, the Constitution viewed the states as sovereign. It provided that federal law took priority over state law (see Article VI Section 2), but the federal government’s powers were few and well-defined (see Article I Section 8). The Constitution assigned any rights and powers not explicitly granted to the federal government, or necessary to exercise these powers, to the people or the states. See the Ninth and Tenth Amendments. It would be surprising if the states authorized the federal government and remained sovereign following authorization of the Constitution and yet didn’t have the power to secede were the federal government were to exceed its few and well-defined powers.  

Third, following the Civil War, the North’s passage of the Civil War Amendments (Thirteenth, Fourteenth, and Fifteenth Amendments) was so inconsistent with its anti-secessionist position that one wonders whether its view was coherent. Congress didn’t allow some Southern states to vote in Congress on the Amendments. It later allowed them to get their Congressional seats back only if they ratified the Amendments. This doesn’t make much sense if secession was illegal and, as a result, the states didn’t, and couldn’t, leave the union.   

Fourth, justice permits secession. In general, self-determination is good and right. Consider, for example, the Soviet Union’s dissolution. Consider, also, peoples who escaped colonialism. See, for example, Algeria, Brazil, Haiti, India, Jamaica, Kenya, Nigeria, Pakistan, and Peru.

In partnership law, people in a partnership are permitted to withdraw from it. They might have to pay damages for doing so, but they are not locked into a partnership for perpetuity. In contract law, if contractors misunderstand a material term in the contract, there is no meeting of the minds and, hence, the contract is void. Disagreeing about whether the constitution permits secession is arguably such a misunderstanding.  

Following the Civil War, a later Supreme Court decision, Texas v. White (1869) held that secession was illegal. Its reasoning was so quick and shoddy as to not warrant serious consideration as an argument against secession, although it might carry weight as precedent. Berkeley Law’s Daniel Farber argues that even if, prior to the Civil War, the Constitution permitted Southern states to secede, the Fourteenth Amendment’s Citizenship and Privileges and Immunities Clauses now prohibit secession. I doubt this view is correct, but in any case, it isn’t relevant to pre-war secession.   

This debate is not merely of theoretical interest. Secessionist movements are found in a number of states, including Alaska, California, Montana, New Hampshire, and Texas. Red and blues states intensely disagree about discretionary wars, fossil fuel, freedom of speech and religion, guns, open borders, race quotas and preferences, socializing child-rearing, medicine, and higher education, and politicizing federal agencies. One solution might be to split the country in two and avoid the need to yolk together people with radically different values who increasingly don’t much like each other.

Affirmative-Action Jurisprudence: Court Greenlights Naked Discrimination Against Asians

Stephen Kershnar

Harvard Admissions: Asians are Dull

Dunkirk-Fredonia Observer

November 4, 2019

In a recent case, Students for Fair Admissions, Inc. v. Harvard University (2019), a federal court judge, Allison Burroughs, ruled that the Constitution and 1964 Civil Rights Act permit Harvard to discriminate against Asians.  

Burroughs followed Supreme Court precedent in holding that a policy of an institution that receives federal dollars and uses race or ethnicity as a factor must receive strict scrutiny. This means that the state has a compelling interest in the institution’s goal and its means is narrowly tailored to achieve that goal.

The judge found that the state had a compelling state interest in Harvard’s goals. She listed Harvard’s incoherent soup of goals. The soup includes preparing students to be leaders in a diverse society, exposing them to people from different races, backgrounds, and life experiences, teaching them to engage with people different from themselves, expanding the curriculum, and promoting the faculty’s research interests. On a side note, none of this has been shown to increase academic performance when compared to purely meritocratic admissions.   

Burroughs further found that the university admission’s system was narrowly tailored to accomplish these goals. In particular, she found that race was used as part of an individualized and holistic review of each applicant’s file. This was done to ensure that serious consideration was given to the many ways an applicant might contribute to a diverse educational environment. This apparently explains why black and Hispanic students at Harvard were admitted with SATs roughly 120 and 110 points lower than Asians and 60 points and 80 points lower than whites.

The discrimination against Asian occurred in part because Asian applicants were judged to be less attractive as people (lower personal ratings) than members of other races. This despite the fact that the people who interviewed them didn’t see them as having less attractive personalities and the fact that they were more likely to engage in extracurricular activities. Still, admissions officers who never met them viewed them as having less attractive personalities. Harvard further argued that without this considering race, there would be fewer black students and, so, they would feel alienated.  

What is interesting is not Harvard’s paper thin goals or the dubious Asians-are-less-attractive-people way in which they were discriminated against. Rather, it is the degree to which leftist ideology controls the way in which Harvard argued the case and the judge decided it.

Burroughs stated that it was “somewhat axiomatic” that racial diversity is an important aspect of education. She argued that “a heterogeneous student body promotes a more robust academic environment with greater depth and breadth of learning, encourages learning outside of the classroom, and creates a richer sense of community.” Side note: This suggests that it is not axiomatic.

None of this is supported by the academic literature, especially when compared to an admissions process that admits students purely on the basis of academic excellence. Nearly 8,000 applicants to Harvard had perfect GPAs, 3,400 had perfect math SATs, and 2,700 had perfect verbal SATs. There is no evidence that the student body would learn or accomplish less if it were chosen purely for academic excellence. On a side note, Burroughs and I attended the same law school a few years apart. It had almost none of the diversity she now thinks is axiomatic and we both received an excellent education.  

In addition, diversity is what you want it to be. Children of ICE officers, correctional officers, evangelical Christians, ex-felons, former drug addicts, loggers, Marines, and porn actresses would add diversity. There is no way in theory or practice to decide whether they add more or less diversity than do black and Hispanic students. The interest in demographic diversity conflicts with the interest in diversity of ideas and experiences. In a campus in which the students and faculty already skew far left, adding more blacks and Hispanics further skews it to the left and, thus, reduces diversity of ideas. Favoring minorities over ex-felons, Marines, and porn actresses lessens experiential diversity. 

Also interesting is the degree to which Harvard chooses students for reasons other than academic excellence. Roughly a third of its students are athletes, legacies, dean’s list applicants (often children of big donors), and children of faculty and staff. These groups are accepted at high rates. For whites, the acceptance rate is as follows: recruited athletes (88%), dean’s list (48%), and children of faculty and staff (43%). Some of this is unsurprising. For example, big-time donors benefit the whole campus.  

Further interesting is the fact that some of Harvard competitors don’t try to compete by doing something different. Second tier Ivy League and their elite cousins (Brown, Columbia, Cornell, Dartmouth, Duke, and Rice) compete against the first tier (Harvard, Princeton, Stanford, and Yale) for students, faculty, and alumni dollars. One way they might do so is by distinguishing themselves by doing something different. For example, they might focus solely on academic or research prowess and reject any anti-meritocratic factors (for example, athletics, diversity, and legacy). So deeply embedded is the left’s commitment to demographic diversity that none distinguishes itself by taking this obvious step.   

There is no right answer as to whether a school should favor academic prowess over excellence in polo, sailing, and squash. Universities have multiple goals. These include attracting the best students, being a top flight research center, increasing endowment, keeping the federal money spigot open, and promoting equal opportunity. Different admissions criteria will affect these goals differently. There is no right answer, other than the preference of a university’s owners, as to which of these goals a university should have and how to prioritize them.

Making things murkier is the fact that it is unclear who owns Ivy League schools. The trustees are elected, college officials are mere employees, and it doesn’t have private owners similar to those found in a partnership or a publicly traded corporation. In short, the issue of admissions defies a principled solution. Even in this context, though, Harvard’s anti-Asian discrimination is distasteful.

Criminality and Corruption in the Federal Government

Stephen Kershnar

Criminality, Corruption, and Trust

Dunkirk-Fredonia Observer

October 21, 2019

Top government officials are increasingly above the law. The elite power structure (academia, media, political parties, and social media giants) pretends not to notice. At issue is whether this is a threat to the country or just the same old same old.

Exhibit A is the FBI and DOJ’s Russia Hoax. Leading FBI officials repeatedly and fraudulently applied to a FISA court to get secret warrants. The FBI’s internal documents made it clear that its leaders knew that the basis for the warrants (Steele dossier) was rife with falsities and unverified. Disgraced FBI head James Comey oversaw some of this fraud on the court, illegally leaked documents, likely lied repeatedly to Congress (he and his lieutenant - Andrew McCabe – contradicted each other), and tanked the prosecution of Hillary Clinton. Comey did so despite knowing that Clinton and her associates openly defied subpoenas, destroyed evidence, and intentionally mishandled top secret documents. Federal prosecutors recommended that Comey’s lieutenant, Andrew McCabe, be indicted for lying to investigators. No adult thinks Clinton, Comey, McCabe, etc. didn’t break the law.

McCabe and the disgraced Deputy Attorney General Rod Rosenstein fought over whether Rosenstein would wear a wire when meeting with Donald Trump and pursue a 25^th Amendment plan to remove him. McCabe had a massive conflict of interest when the Clintons’ money man supported his wife’s run for office. Other officials also engaged in FISA abuse, illegally leaked documents, lied under oath, obstructed justice, and spied on the Trump administration. To date, a number of leading FBI and DOJ officials have been demoted, fired, or resigned in disgrace over the Russia Hoax and related spying. None of these criminals has been prosecuted.

Exhibit B involves the Obama Administration. The Russia Hoax began during the sleazy Obama presidency. The IRS admitted to illegally targeting Tea Party groups. The IRS official in the middle of it, Lois Lerner, pled the Fifth. She was held in contempt of Congress. Obama Attorney General Eric Holder was also held in contempt of Congress. He refused to hand over documents relating the Fast and Furious gun running scandal. The DOJ refused to prosecute Lerner and Holder. Holder has a history of sleaziness. He oversaw Bill Clinton’s pardon scandal when pardons were doled out to a spouse of a big donor to the Clinton Library (Marc Rich), Bill’s brother, and one of the people at the center of Clintons’ dirty Whitewater deal (Susan McDougal).

Fun fact: Comey was tasked with determining whether the Rich pardon was illegal. He found it wasn’t. Again, none of these criminals have been prosecuted. Holder successor, Attorney General Loretta Lynch, yet another sleazebag, had to distance herself from the Clinton email investigation because of dubious behavior.

Exhibit C. Leading intelligence officials blatantly lied to Congress. This is a felony and one for which private citizens have been recently charged. The director of national intelligence, James Clapper, lied to Congress about the NSA’s electronic searching of Americans’ emails, video clips, and pictures without a warrant. The CIA’s John Brennan lied to Congress about searching computers used by the Senate’s intelligence committee’s staffers. Again, the criminals skated free. Obama’s government even searched the telephone records of reporters and editors for The Associated press and Fox News.

While not criminal, other forms of dishonesty and corruption abound. The media regularly trumpeted fake news. Examples include Joe Biden and John Kerry’s sons (lavish deals prematurely judged to be kosher), Covington Catholic High (Catholic school boys falsely accused of having bullied a Native American veteran), Ferguson police shooting (“Hands up, don’t shoot” never happened), Brett Kavanaugh (Christine Blasey Ford’s story fell apart), Russia Hoax, and the Trayvon Martin case (main witness appears to be a fraud). Courts repeatedly block Trump administration’s attempts to rein in the flood of illegal immigration with barely a fig leaf of legality. Campuses look the other way when Antifa and other thugs shut down conservative speakers. Social media giants such as Facebook, Google, and Twitter openly censor the right.

At issue is whether this is a threat to the nation. On the one hand, such widespread criminality in government’s highest reaches threatens to undermine the people’s trust in the government. In addition, corruption in academia, courts, federal intelligence and police agencies, and social media giants encourages further corruption. The criminality, corruption, and lack of trust likely further polarizes the American people. Consider whether FOX and MSNBC viewers will be able to engage in a civil discussion of politics at Thanksgiving. Donald Trump’s voters and Joe Biden’s or Elizabeth Warren’s voters will vie for control of the country with one side, and perhaps both, being disgusted with their country.         

On the other hand, the loss of trust in the government and media has a silver lining. Congress and the last few presidencies are replete with silly mandarins (consider, for example, Bushes, Clintons, John Kerry, John McCain, Obamas, Robert Mueller, Nancy Pelosi, and Mitt Romney). The less they control American lives the better. If the criminality and corruption gins up skepticism about them, all the better. One can’t help but look at the recent presidents’ performance (for example, exploding debt, illegal alien invasion, Obamacare, and housing-fueled economic crash) and wars (for example, Afghanistan, Libya, Iraq, and Serbia) without realizing that Americans’ leaders performed poorly. If diminishing trust comes about via corruption and criminality, rather than poor performance, perhaps this is the way to go.

The Obama administration weaponized government agencies (CIA, DOJ, FBI, IRS, and NSA), but this probably will be reversed. The corruption found in cities such as Chicago and New York City and states such as Illinois and New York is nowhere near what it used to be. The same will likely be true for the federal government.

In the end, I suspect less trust in government is a good thing. Criminality and corruption will be corrected and the polarization of politics will give voters more of a real choice. Still, this is just a guess.

The Right-to-Die Movement

Stephen Kershnar

Physician-Assisted Suicide: Who Owns You?

Dunkirk-Fredonia Observer

October 8, 2019

The right-to-die movement argues that terminally ill people have a right to die via physician-assisted suicide, refusing life-saving medical treatment, or voluntary euthanasia. Their argument is sound. There is a moral right to die in these ways and there should be a legal right to it as well.  

Physician-assisted suicide occurs when a physician provides a patient with the knowledge or means (drugs) to commit suicide. Physician-assisted suicide is legal in nine states (California, Colorado, Hawaii, Maine, Montana, New Jersey, Oregon, Vermont, and Washington) and in part or all of some advanced countries (Australia, Belgium, Canada, Luxembourg, Netherlands, Switzerland, and United States). Some of the states with perennially loathsome governments criminalize it: Connecticut, Illinois, and New York.

In a pair of cases, Washington v. Glucksberg (1997) and Vacco v. Quill (1997), the Supreme Court held that there was no constitutional right to physician-assisted suicide. In an earlier case, Cruzan v. Director, Missouri Department of Health (1990), the Supreme Court recognized a constitutional right to refuse life-saving treatment and tried to distinguish this right from a right to physician-assisted suicide.

Voluntary euthanasia occurs when a person consents to have another kill him (for example, a physician). It differs from physician-assisted suicide only in terms of who acts last to bring about the patient’s death. There is no moral difference between physician-assisted suicide and voluntary euthanasia as nothing rests on who acts last. In both cases, the physician and patient act with the same goal, use the same means, and bring about the same result.

Physician-assisted suicide has safeguards. The patient must have a terminal illness, be competent, notified of an alternative to suicide (palliative care), and repeatedly authorize the drugs. One study in Oregon found that the most common reasons given for seeking physician-assisted suicide are the loss of ability to participate in activities that made life enjoyable, loss of autonomy, and loss of dignity. In a Washington study, the majority had terminal cancer or a neurodegenerative disease (consider, for example, ALS and Huntington’s disease).

The argument for physician-assisted suicide is straightforward. A person owns himself. That is, he has a fundamental right to control his body. If a person owns himself, then he may shape his life as he sees fit. If he may shape his life as he sees fit, then he may end his life. This is especially true when he has a terminal illness that would otherwise make his future degraded, miserable, and short.

If a person has a moral right to end his life, then he may get others’ help in doing so. Thus, there is a moral right to physician-assisted suicide. In helping a person end his life, the physician does wrong the patient, himself, or a third party. In general, the state should allow people to exercise their moral rights except when doing so prevents catastrophic loss. Hence, there should be a legal right to physician-assisted suicide.

Self-ownership explains why the state grants people other legal rights. Consider rights to think and say what you want (for example, free speech and religion), determine your relationships with others (for example, sex, dating, and marriage), and be free of interference (for example, battery, unreasonable search and seizure, and trespass). It also explains fundamental legal rights in the medical context such as rights to abortion, contraception, and refusal of medical treatment. 

Legislators opposed to a legal right against physician-assisted suicide argue that there is good reason to criminalize it. First, they argue, the practice would endanger vulnerable people, particularly the disabled and mentally ill. For example, they note, some of the degraded-and-terminally-ill people who want to die are clinically depressed.

This reason is unconvincing. There are procedures to lessen this risk and the burden is on those who want to block a fundamental moral right to show that the procedures aren’t working. Even if they could show this, and the evidence doesn’t support them, free societies find ways to protect incompetents that are less restrictive than trampling on the rights of competent adults.

Second, opponents argue that criminalizing the practice prevents people from being pressured into suicide. Such pressure might come from loved ones who struggle with the crushing financial and psychological burdens of supporting someone who is dying in an expensive, painful, and slow manner.

This argument is paternalistic. It tells dying people that they are too much like children to decide what is and is not a good reason to die. Dying people are not children. They can decide for themselves whether being a burden is a good reason for dying, especially in the context of an otherwise degraded, miserable, and short future. Trampling on the fundamental rights of competent adults hardly seems a permissible way to prevent undue pressure in some families. 

Third, opponents argue, allowing such a practice will eventually lead to legalizing euthanasia, perhaps even involuntary euthanasia. Others argue that it might lead to legalizing suicide by people who do not have a terminal illness.

The first slippery-slope argument is neither conceptually nor empirically justified. Conceptually, there is a big difference between letting someone die who consents to it (via physician-assisted suicide) and killing someone who doesn’t consent to it (via involuntary euthanasia). Empirically, I cannot find any evidence of a slide into involuntary killing in states and countries that allow physician-assisted suicide. In addition, as noted above, the distinction between physician-assisted suicide and voluntary euthanasia is insignificant.

The slippery-slope claim that the self-ownership argument for permitting this medical practice also justifies permitting competent individuals without a terminal illness to commit suicide is correct. A person is not owned by his church, country, family, or government. Rather, he owns himself. Free countries permit people to shape their own lives, even if they do so poorly. As an empirical matter, the state will not recognize this additional right. Sadly. Americans just don’t love liberty that much.  

In summary, the right-to-die movement is correct. Terminally ill people should have a legal right to die.

Cultural Appropriation: No Big Deal

Stephen Kershnar

Cultural Appropriation: Appropriate Away

Dunkirk-Fredonia Observer

September 23, 2019

Cultural appropriation occurs when an individual from one culture uses another culture’s ideas. Often the ideas relate to artifacts, clothes, food, and symbols. Many academics and activists think that appropriation is theft. They claim that it disrespects minorities and smacks of colonialism.

The anti-appropriators decry the Florida State Seminoles’ and Washington Redskins’ use of Native American images. They get very upset over Halloween costumes involving Mexican sombreros, ponchos, and bandoliers and even more upset at Native American war bonnets and war paint. At Yale, debate over Halloween costumes caused massive turmoil. Some cultural critics take personal offense when white women wear Japanese-style kimonos and Chinese-style form-fitting dresses.

Two years ago in progressive Portland, two non-Hispanic white women were pressured into shutting down their burrito food cart because it was alleged that they culturally appropriated the type of food and stole the recipe from the Mexican people. It is unclear why Portlanders, including Hispanic ones, would be better off with inauthentic burritos. White people who allegedly pretend to be black or Native American (NAACP chapter president Rachel Dolezal, Black Lives Matter leader Shaun King, and presidential candidate Elizabeth Warren) are criticized for appropriating a racial identity.

In art, many of history’s most important painters (Paul Gaugin, Henri Matisse, Pablo Picasso, and Henri Rousseau created primitivist art, which tries to recreate primitive experience. Other artists (for example, Amedeo Modigliani) drew inspiration for his sculpture from African art. Many art historians insist that such art is wrong or bad. In Canada in 2017, indigenous activists pressured an art gallery into shutting down a white woman’s show because her art was inspired by indigenous art.

Cultural appropriation is neither wrong nor bad. First, there is no one who is victimized when a person from one culture uses ideas, symbols, clothes, etc. from another culture. No individual owns a widespread cultural element, such as the archetype for a Central or West African mask, gaucho pants, Native American headdress, or sombrero. Specifically, no one has intellectual property rights to them (copyright, patent, or trademark rights). Nor does anyone have a moral right that is analogous to such legal rights. Just as no individual owns the archetype, nor does any group own it. There is no one, for example, who could sell, whether morally or legally, the rights to make and use gaucho pants. Nor could any person or group grant permission to others to make such pants or destroy all such pants. If an act does not wrong anyone, it’s not wrong.

Second, critics of appropriation inconsistently focus on context. No one would object to black teens in a Harlem drama club performing Fiddler on the Roof, Macbeth, or West Side Story. Some art is too good or enjoyable to be limited to just one people. Yet, if such cultural crossover is acceptable, then it’s unclear why white people may not play Asian characters. Consider, for example, David Carradine in the 1970’s show Kung Fu and Scarlett Johansson in the remake of an anime classic: Ghost in the Shell. If the concern is for ridicule or insult, then most of the above appropriation is fine. The Redskins and Seminoles adopt their symbol because they think their team namesake is dignified and full of fighting spirit. Gaugin, Modigliani, and Picasso thought that the African masks and Tahitian colors and people were aesthetically impressive. The white women selling burritos likely thought authentic burritos are outstanding.      

Third, the alleged wrongness of cultural appropriation is a one-way street. No one thinks African people wrong Western people when they use Western ideas (for example, rights protecting assembly, free speech, and the press), political structures (for example, separation of powers, parliaments, and congresses), medical discoveries (for example, polio vaccines), or religions and religious symbols (for example, Catholicism and Catholic iconography). If appropriation is wrong because it involves theft of ideas, it would be wrong in these cases. Theft does not become permissible merely because the victim is wealthy. If appropriation of political and medical ideas is good, the same is likely true for aesthetic ideas. In general, the free market with unlimited entry of people and products almost always benefits consumers.  

Also, no one objects to Notre Dame and the Boston Celtics appropriating Irish symbols or the Minnesota Vikings appropriating a Nordic symbol. Just as Notre Dame’s fans see the Leprechaun mascot as a positive celebration of Irish fighting spirit, Redskins fans similarly view their mascot. The Redskins’ fans view is bolstered by the fact that three predominantly Native American high schools name their sports teams “Redskins.”

Fourth, the boundaries of appropriation are unclear. Imagine a bunch of orthodox Jewish teens from Brooklyn who want to dress up in dreadlocks and play Reggae music. Are they appropriating? Intuitively, it seems so. Yet Bob Marley’s father was a white Reggae musician and, arguably, Jewish. There is an amusing picture of Marley wearing a chi while smoking a doobie. Here things get strange. On the one hand, history intuitively seems to make no difference here. No one cares about Marley’s lineage. On the other hand, it is odd that a group may not claim ownership over an art form when its most famous artist is from their group. The teens may wear Woody Allen costumes. The history-based permission gets murky though. May a Haitian teen dress up as Bob Marley? Perhaps it’s okay so long as he has 12.5% aggregate Jamaican and Jewish genes or heritage.

Similarly, imagine a group of Catholic white teens from Iowa having watched Bruce Lee’s Fist of Fury, decide to wear his character’s Chinese outfit and show off his famous moves. Is this objectionable appropriation? Lee is probably one-quarter white and attended Catholic schools. To make things more confusing there is a good chance that kung fu originated in India, not China. In any case, Bruce Lee’s preferred style was his own Jeet Kune Do, not kung fu, and he developed it when living in the U.S. It is hard to believe that any of these facts determine whether the teens may wear such an outfit.  

In general, it is mysterious as to why people may not display their enjoyment of art or other accomplishment by someone from another group. Many Asian, Hispanic, and white guys from the New York City area took pride in Lawrence Taylor’s relentless play for the Giants, especially those who played linebacker. No one blinked an eye when they wore his jersey.  

Cultural appropriation is neither wrong nor bad. No one owns cultural symbols and the unfettered free market in them makes the world a much better place. Rather than spending time denouncing cultural appropriation, cultural critics’ and academics’ would be better served by wearing a chi and smoking a doobie.

Immigration: The Country Club Model

Stephen Kershnar

Immigration and Country Clubs

Dunkirk-Fredonia Observer

September 2, 2019

The 2020 Presidential election will likely be about immigration. It should be. A Yale-MIT research team estimates that there are 22 million illegal aliens in the country today. If large numbers are amnestied and chain-migration remains in place, tens of millions of these aliens and their families will become citizens. This will reshape the country. 

The Democratic Party supports nearly open borders. Congressional Democrats, along with Republican establishment types, have back doored in a catch-and-release policy for illegal aliens. They’ve done so by ensuring that, as a general matter, illegal aliens who show up with a child or underage teenager and claim asylum are briefly held and then released into the country so long as they promise to show up to an immigration hearing. Because large numbers blow off the hearing and are not tracked down, they are in effect let into the country.

Democratic Presidential candidates announced that they want to amnesty illegal aliens, decriminalize illegal border crossing, eliminate Immigration and Customs Enforcement (ICE), hand out medicine, education, and welfare to illegal aliens, and tear down the southern border wall. Among the candidates who support two or more of these policies: Joe Biden, Pete Buttigieg, Bill de Blasio, Kamala Harris, Beto O’Rourke, Bernie Sanders, and Elizabeth Warren.  

Earlier, President Obama put forth a nakedly unconstitutional order to amnesty one group of illegal aliens (Deferred Action for Childhood Arrivals - DACA - aliens). This term the Supreme Court will likely strike the order down. In negotiating with President Trump over the budget, congressional Democrats again made DACA aliens a priority. Many Democratic cities have declared themselves sanctuary cities. Fourteen largely Democratic controlled states give driver’s licenses to illegal aliens. Democrat and establishment Republicans insist that the children of illegal aliens automatically become citizens, and thus become anchor babies, even though neither the text nor history of Constitution supports this rule. Nor has Congress ever voted to put the rule in place. 

The issue matters for a couple of reasons. First, if large numbers of illegal aliens were amnestied, politics in the U.S. will swing far left for decades. Second, the slow motion invasion will forever change U.S. identity. China, Israel, Japan, and Norway have an identity that is based in part on being constituted by a people with a shared history and sense of identity. Similar to these countries, the U.S. has an identity that is based in part on being constituted by a people with a shared history and sense of identity. Were it constituted by a different people, it is unclear if the American people would retain their identity. It is also unclear whether the country would remain as committed to political and economic liberty. The freest countries in the world are concentrated in Western Europe and East Asia. It is unclear whether tens of millions of illegal aliens and their chain-based relatives share this value and even less clear whether they’ll identify as American. Writing in evonomics, George Mason economist Garrett Jones argues after immigrating to a new country, immigrants and their descendants largely retain their attitudes toward markets, trust, and social safety nets and change governments accordingly. Demography is destiny.  

A good way to think about immigration in moral terms is via an analogy. Consider an exclusive Westchester County country club. It is justified by the consent of its members. The members jointly own its property. Consider, for example, its clubhouse, lands, and financial assets. As a moral matter, the members may run it for their own benefit. This is part of a more general feature of morality. Individuals may favor their families, friends, and neighbors over strangers. They may also spend their money on their own projects. Morally, the members get to decide who joins the club or uses its facilities. It is not decided by who sneaks into the club in the dark of night.

A country is similar to a country club. Its government is justified, if is justified at all, by the consent of its members. It members jointly own its property. Consider, for example, a country’s air space, financial assets, military assets, parks, and roads. As a moral matter, members may run it for their own benefit and get to decide who joins it or uses its facilities. Also, like a club, who gets to join a country or use its facilities should not be decided by who sneaks into it.  

What follows from this is that, as a moral matter, citizens should get to decide who becomes a member of their country. It may keep illegal aliens out for any reason or no reason whatsoever. Whether the aliens will likely cause the U.S. to be less free, enter more foreign wars, and have less respect for the Constitution is beside the point. On a side note, they will likely do so. Without the 1965 Hart-Celler Immigration Bill, Barack Obama, with his weaponized DOJ, FBI, and IRS and frequent unconstitutional abuses (Chrysler bailout, campus speech restrictions, Obamacare implementation, Libyan war, etc.) would likely not have been elected.       

There is a debate, albeit one that is often not publicly discussed, as to whether amnestying most, if not all, of the 22 million illegal aliens would be economically or culturally good for the American people or would increase their freedom. What there is no debate on is that the country’s owners did not consent to let them in and have not retroactively permitted them to stay. That’s really the issue.

There’s little debate that the aliens would not be as good for the American people as would 22 million immigrants who were let in on the basis of merit. Such immigrants might be let in because they invested millions of dollars into the economy or had the job skills, advanced education, or high IQ important to an advanced economy. Still, this issue is irrelevant. What is relevant is that the American people did not agree to let them in.

The Paradoxes of Abortion: Inconsistencies in the Pro-Life Position

Stephen Kershnar

The Paradoxes of Abortion

Dunkirk-Fredonia Observer

June 25, 2019

The pro-life position on abortion (abortion is morally wrong and should be illegal) contains a number of paradoxes that indicate that the pro-life side either doesn’t believe in or doesn’t understand its position.   

First, most pro-life advocates don’t support charging abortion-doctors and the women who hire them with murder. This is odd in that on the pro-life theory a fetus has the same status as a baby. If someone were to willfully, premeditatedly, and with malice aforethought kill a baby, he would be charged with murder. This is especially true if he did it for money. Hence, advocates should think that abortion-doctors and the women who hire them should be charged with murder, even if they don’t admit this publicly.

Second, most pro-life advocates don’t support shooting abortion-doctors. Yet killing aggressors to prevent them from slaughtering infants and young children intuitively seems permissible. In World War II, for example, were an American paratrooper to discover a Nazi worker about to dump poison (Zyklon B) into a room full of Jewish children, few doubt that he may shoot the worker if that were the only way to save the children. Even if it turned out the worker could have been prevented from dumping the poison without killing him, few would shed a tear for the worker. Perhaps pro-lifers think that their cause is better served by changing hearts and minds rather than violence. Still, on pain on inconsistency, they should think that such killings are just. Again, this is true even if they don’t want to admit it publicly.

Third, most people judge women who damaged their children in the womb through alcohol, drugs, or smoking far more harshly than they judge women who’ve had an abortion. Consider, for example, the millions of women who’ve used the morning-after pill and escape condemnation from their pro-life friends. It’s far worse to be killed than harmed and so women who’ve used the pill have done far worse to their fetuses than those who harmed their fetuses through drinking or drugs. For example, following a car accident, most people would want to live even if they didn’t think as well or weren’t as healthy as they were before the accident.   

Fourth, few pro-life people reassure themselves that abortion isn’t so tragic because aborted fetuses are going to enjoy everlasting life in heaven. This is odd in that, on their account, fetuses have the same status as babies and, on some lines of Christianity, babies who die go to heaven. A Catechism of the Catholic Church (1261) says that while we don’t know what happens to unbaptized infants, people may hope that they go to heaven. This likely includes aborted and miscarried fetuses. This is a reasonable interpretation of the Bible given that Jesus said, “Let the little children come to me, and do not hinder them, for the kingdom of God belongs to such as these.” [Mark 10:14].

Fifth, pro-lifers often think that people begin to exist at conception. Yet zygotes and embryos can’t think and so there is little reason to believe that they have souls. Having a soul is an essential feature of a person who can think and live millennia after his body dissolves away. Such an individual is no mere biological organism, but rather an immaterial thinking thing. It is odd, then, to think that people are organisms when thinking about abortion and immaterial souls when thinking about the afterlife.

What explains the seeming inconsistencies? Perhaps it is that pro-lifers don’t really believe that fetuses, especially early in pregnancy, are people. Instead, they might implicitly think that a fetus is a precursor to a person much as an acorn is a precursor to a tree. Alternatively, they might implicitly think that the fetus trespasses onto the women’s body and, thus, however distasteful, abortion is a woman’s right. The right is based on her owning her body rather than the state, fellow citizens, or fetus owning it. On this view, a woman may kill a fetus, even though it is innocent, just as she may kill a psychotic attacker, even though the attacker is innocent in the sense that a court would find him not guilty due to insanity.

Even the pro-life legal position is odd. The pro-life lawyers and law professors generally want Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) overturned and the matter kicked back to the states. This is strange given that the Due Process and Equal Protection clauses should be read to require that people be protected against maiming and murder by private parties, if anyone is protected against such violence. For example, it would not pass constitutional muster for individual states to get to decide whether private citizens may hire hit men to kill blacks, Jews, or teenagers. Yet this is precisely what pro-lifers argue for in claiming that the Supreme Court precedent on abortion should be merely reversed rather than replaced with an interpretation that protects fetuses in the same way that the Constitution would be read to protect blacks, Jews, and teenagers against private killings.

In the end, it is unclear to me what accounts for the inconsistencies. The issue is made worse by the fact that the pro-life movement’s home is in the Republican Party and, in other areas, it is far better at ensuring peace, freedom, and posterity than the loathsome Democratic Party.

Perhaps what accounts for the inconsistencies is the practical nature of the American people. In particular, Americans and their politicians are not especially interested in theory, but in practical solutions that allow people to ignore Washington and focus on themselves and their families. Perhaps, instead, abortion, like adultery and sex, are impolite topics of conversation and this prevents open discussion and, thereby, prevents people from noticing the inconsistencies. Neither explanation strikes me as correct, though, so I’m not sure what explains the inconsistencies.

The Supreme Court Can't Keep Running Away: When Do People Begin to Exist?

Stephen Kershnar

When Do People Begin to Exist?

Dunkirk-Fredonia Observer

May 19, 2019

In the near future, the Supreme Court will likely decide whether to overturn two landmark abortion cases: Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). If it does so, it will have to face the issue of when people begin to exist.  

In Roe, roughly, the Supreme Court held that during the first six months, a state may regulate abortion only in ways that are reasonably related to a woman’s health. It may not protect the fetus' life. The court reasoned that precedent did not view fetuses as people. It did not address the issue of when life begins because this is above its pay grade (specifically, it is not in a good position to speculate on the issue).     

Following Roe, Casey imposed the following rule: A state may not impose an undue burden on a woman who wants to have an abortion before the fetus is viable. A fetus is viable when it can survive outside of the woman. The court said that an undue burden is a law that has the purpose or effect of imposing a substantial obstacle on pre-viability abortions.

Despite these Supreme Court decisions, Alabama recently criminalized abortion except when there is a medical emergency. Six states have trigger laws that would make abortion illegal were Roe overturned. Nine states still have pre-Roe abortion-prohibitions on the books. These prohibitions would likely take effect were Roe overturned. Various states limit or ban abortions past various threshold. Among the thresholds are the following: conception (1 state), 6 weeks (4 states), 20 weeks (14 states), 24 weeks (6 states), 25 weeks (1 state), and viability (18 states). A number of states require a waiting period, ultrasound, or counseling in part to discourage abortion.

The problem with these laws is that an individual begins to exist when he has has a brain, specifically, a brain with the capacity for thought. Prior to when a fetus has a brain, abortion is more similar to contraception than infanticide.

To see this, consider other views on when people come into existence. Some people think people come into existence when an organism begins to exist. This likely occurs at conception. On this theory, a person is an organism (that is, an animal). Others, usually religious folk, think that people come into existence when their souls come into existence. On this theory, a person is a soul or, alternatively, a soul is part of a person.   

Consider the metaphysical arguments for the idea that a person begins to exist when his brain begins to exist and that he is located in whole or part where his brain is located. First, imagine a case of one body with two heads. Each head has different thoughts than the other. In fact, there is a case of conjoined twins, the Hensel twins, that looks like this, although for technical reasons this is probably not such a case. For example, if the Joker were to shoot them with .50 caliber desert eagle, he would and should be charged with two murders. This case shows that a person is brain not an organism (animal). This is because the body with two heads is only one organism. Biologically, it is one animal in the same way that a lion with an extra set of lungs is one animal. 

Second, you can imagine a case when we transplant one person’s head onto another person’s body and vice versa. Consider, for example, if we transplanted Bernie Sanders’ head onto Sylvester Stallone’s body and Stallone’s head onto Sander’s body. After transplantation, it intuitively seems that Stallone see the world from atop Sander’s flabby body and Sanders would see the world from atop Stallone’s chiseled body. Again, though, the animals did not switch places, only the brains did. This is not merely a thought experiment. A head transplant has been successfully performed on a monkey.   

Third, it intuitively seems that when a person’s brain (or, perhaps, just her cerebral cortex) is destroyed, she no longer exists because she can longer think. This is likely what happened in the Terri Schiavo case. Terri’s forebrain dissolved before her body stopped functioning. As a result, Terri no longer existed, although though her body still functioned. If this is correct, then a person comes into existence when her brain comes into existence. 

The notion that a person comes into existence at conception faces yet another problem. Consider a zygote that splits to form twins. Consider, for instance, Ashley and Mary-Kate Olsen. Because they are not the same person, neither one was the zygote that split to form them. This is because if B and C are different people, then A cannot be identical to both without producing a contradiction. If this is correct, then they (and we) were never a zygote.

Religious people often believe that a person is a soul. This allows people to exist in heaven centuries after their bodies and brains have dissolved away. One problem with this view is that it is unsupported by science. A second problem is that it is unclear when a soul begins to exist. Proponents of this idea usually view the soul as the seat of consciousness. On this theory, then, a person begins to exist when he can become conscious.  

Were Roe overturned, a number of these states would criminalize abortion before people come into existence. They would thus treat something that is the moral equivalent of contraception as if it were murder (or some other felony). There is not what freedom-loving people do.    

The Supreme Court can’t keep ducking the issue of when people begin to exist. The Constitution limits what the federal government and states can do to people or what they can allow others to do to them. See, for example, the Due Process and Equal Protection clauses. If so, the court will have to face the issue of when people begin to exist. Enter the brain.