DRI-248 for week of 1-6-13: Rights vs. Power

An Access Advertising EconBrief: 

Rights vs. Power

Two recent examples of an endlessly recurring debate afford the opportunity to revive one of the most vital distinctions in political philosophy – between rights and power.

One example popped up at the Indiana University Health Goshen Hospital. Eight of its employees were fired for refusing to submit to flu vaccination via injection. Three of the eight were veteran nurses.

The hospital cited recommendations by the American Medical Association, the American Nurses’ Association and the Center for Disease Control that all Americans over 6 months of age undergo flu shots. One of the nurses, 61-year-old Ethel Hoover, insisted that “this is my body. I have a right to refuse the vaccine.” Website coverage of the incident by ABC News reporter Sydney Lupkin portrayed the dispute as a classic debate over “…which should come first: employee rights or patient safety.”

The other case occurred in Kansas City, MO, where Rockhurst High School, prestigious local Catholic high school, announced a policy of testing all students for the effects of drugs and binge drinking. A columnist for the Kansas City Star condemned the policy as “intrusive” and “unfair,” opining that experienced staff should be able to detect habitual users without the need for testing everybody.

The endless stream of back-and-forth debate over these cases suggests that the true governing principles have been long forgotten.

The Economic Implications of Political Rights

Few things arouse American ire as quickly as the subject of “rights.” The term is as old as the nation itself, appearing prominently in the Declaration of Independence and the Bill of Rights to the U.S. Constitution. And those references inform our understanding of the term.

Take the Declaration’s famous assertion that we possess the “right to life, liberty and the pursuit of happiness.” Why confer the right to pursue happiness – why not happiness itself? We sense the presence of a vital distinction. Our intuition tells us that government cannot very well grant a legal, constitutional right to happiness. Why not?

Of course, we realize that happiness is a subjective term and that it is impossible for one person to gauge whether another is happy or not. But we can make this point much more concrete by importing economic logic into the discussion. Economists gauge an individual’s happiness as a function of his or her real income or utility. This, in turn, depends on the consumption of life’s good things, both tangible and intangible.

Now we reach the nub of the problem. Goods are limited or finite in quantity while wants are infinite. Governments cannot promise happiness to everybody because governments cannot assure the supply of an unlimited volume of goods to satisfy wants. Again, this refers both to physical goods and services and to aesthetic wants such as beauty, truth and justice.

Although we may not realize it, we are all competing with each other for the limited supply of means with which to satisfy our unlimited wants. Naturally, we find it expedient to cooperate in order to serve our mutual interest in enlarging the volume of those means. Free markets and the price system are the evolutionary systems that have evolved for that purpose.

The Declaration of Independence enshrines the notion of the Rule of Law – or equality before the law – by granting to all alike the right to engage in the pursuit of happiness. But that does not imply that we all will achieve it. Indeed, stating the issue in this form makes it clear that we will not. Nonetheless, freedom allows everybody a shot at it and promotes cooperation not only in enlarging the size of the economic pie but in dividing it voluntarily through charity to help those who are least successful in fending for themselves.

The Economic Definition of Rights

A right is defined as something that can be enjoyed by one or more individuals without reducing the amount available for others to enjoy. This removes economic goods and services from the list of things to which a political right can be granted. Giving one person a guarantee of an economic good implies the necessity of denying a right to it (or, equivalently, to alternative goods) for others, since the good is not available in infinite quantities.

Guaranteeing a right to life means that others are not permitted to arbitrarily end your life unless you threaten theirs. Guaranteeing your liberty – and your right to pursue happiness – can be done without threatening the liberty of others. Indeed, the right to liberty must be guaranteed on equal terms for all law-abiding citizens in order to maintain the Rule of Law. That is why government exists in the first place.

The same reasoning applies to the other freedoms granted in the so-called Bill of Rights. It is vital to heed the Constitution’s explicit reminder that our rights are not limited to those explicitly listed in those first ten amendments. On the contrary, the Constitution limits the power of government by limiting it to its explicitly stated duties. (More than every, we are now coming to appreciate the wisdom of those who opposed ratification of the Constitution because they feared that the Bill of Rights would eventually come to be seen as limiting rather than reaffirming our rights.)

The Key Role Played by Competition

The case of nurses ordered by their employer to take flu shots is being treated by mainstream media as weighty and imponderable, a legal version of the clash between the irresistible force and the immovable object. But the principles outlined above – political and economic – provide the answer to this seeming quandary.

The nurses have committed no legal infraction and denied nobody their rights. Patients do not have an absolute right to good health any more than they have an absolute right to any other good or service. Ethel Hoover’s insistence that she owns her own body is impeccably correct. She has the right to refuse the flu vaccine. The government cannot force her to take it – not for the good of her patients or even for her own good.

But the government is not the entity requesting that she get a flu shot. Her employer is requesting that she do so as a condition of her employment. This request is perfectly valid and legitimate. The hospital chain serves customers. Those customers do not want to catch the flu while in hospital; they have just as much right to pursue happiness as nurses do. Hospitals compete with other hospitals. If some hospitals are forced to employ nurses who successfully resist flu shots, those hospitals may go out of business. Hospital owners have just as much right to pursue happiness as nurses do.

Are nurses being forced to take the flu shots by their private employer? No, because private employers cannot force employees to do anything. Employees can exercise the sovereign right of all employees – they can quit. Nurses are not guaranteed a particular job by law any more than they are guaranteed the right to a consumption good or service.

In this particular case, as it happens, the nurses in question apparently have lots of reasonable alternatives. They can pursue administrative jobs where their contact with patients is limited or nonexistent. They can pursue teaching opportunities within nursing. They can leave the profession and go elsewhere.

One other thing the nurses can do is pursue nursing employment elsewhere. Perhaps the fear of patient contamination is overblown, in which case competition between hospitals will provide an incentive for another hospital to exploit their veteran talents. Competition between hospitals works in their favor as well as working against them.

The pertinent distinction is between government action, which is coercive and allows no room for maneuver or escape, and marketplace action, which presents voluntary choices and alternative possibilities. When the government nails you, you either comply or go to jail. When an employer makes a request, you choose from a range of alternatives that normally offer much smaller decrements of loss.

By definition, competition means the presence of alternatives. By definition, government means their absence.

The All-Important Distinction: Rights vs. Power

Nurse Ethel Hoover wants to assert a “right” to refuse her employer’s request that she take a flu shot while at the same time retaining her job. In effect, she wants the right to hold her job in spite of her employer’s insistence that she is unsuitable to perform it.

This is not a right. The only way she can retain her job under these circumstances is by forcing the employer to give up his right to pursue happiness by producing health care profitably and safely and by forcing consumers to forego their rights to purchase good health. Nurse Hoover is demanding power – the power to force other people to forego their rights. Of course, she is cosmetically beautifying her claim by cloaking it in the faddish language of “rights.”

The debate over freedom vs. power goes back a long time. In the 20th century, it was wages between F.A. Hayek on the right wing and John Dewey on the left wing. Dewey defined freedom as the “power to do effective things” while Hayek defined it as “the absence of external constraint.” Hayek observed in his classic polemic The Road to Serfdom that Dewey confused freedom with power. Modern political philosophy has continued to observe the distinction with the dichotomy between “positive liberty” (Dewey’s version, which is really power, not liberty) and “negative liberty” (Hayek’s version).

The left wing has traditionally conflated power with freedom. It has tried to salvage its position by insisting that only government can solve cases like those of Nurse Hoover. Employers are unable and/or too venal to judge the safety of flu shots; consumers can’t choose safe health care for themselves. Thus, allowing markets to work will wrongly exile Nurse Hoover from her profession and stick us with inferior health care. Governments must objectively determine the safety of flu vaccines, once and for all and for everybody. Government must give Nurse Hoover her rights; otherwise, she won’t have any since markets always do the wrong thing.

The left’s position is untenable. It is logically absurd to contend that consumers not only make wrong choices about their own health but also continue to persist in those choices. It is absurd to maintain that bureaucrats somehow possess both the expertise and the wisdom to make life choices for people about whom they know nothing. It is absurd to suppose that bureaucrats – notoriously insulated from the consequences of their own mistakes – can judge safety better than doctors and managers whose livelihoods are on the line.

The Non-Sequitur of Childhood

The Rockhurst High School case is also being wrongly perceived. Here, the confounding factor is childhood, a factor that nowadays invariably puts the brain in neutral while shifting the emotions into forward gear.

Once again, the issue is being put as a conflict of “rights.” Does a high school have the “right” to “force” students to undergo drug tests? Do students have the “right” to refuse them? In this case, the presence of childhood in the equation turns some people into paternalists and others into public defenders.

The paternalists insist that kids cannot possibly perceive their own interests and that it is therefore up to us to step into the breach. Of course, this places overwhelming importance on the content of “us” – is that parents, teachers, administrators, judges, doctors or some artfully contrived mixture of the above? The public defender insist that children are helpless victims of the high school/teachers/administrators/judges/doctors (take your pick) and require the services of advocates provided by government or the press (to the extent that those two differ).

Economics has long realized that consumption decisions are made jointly within families and nominates “the household” as the family choice unit. As a practical matter, this means one or more parents with varying degrees of input from children. There is no reason to think that a system that makes choices on food, clothing, housing, entertainment, transportation and communications cannot also handle education and personal privacy.

Of course, households choose among competitive suppliers of food, clothing, housing, etc. And this particular situation actually deals with personal privacy rather than education, doesn’t it?

Yes and no. Large numbers of households are hamstrung by quasi-monopolies in secondary education; that is, they cannot afford to pay twice for the competitive alternative of private schools. In that sense, they are actually in the “government” case as outlined above. The law requires them to send their kids to school but doesn’t allow them the luxury of choosing alternative suppliers of public education if their school’s policy on personal privacy is obnoxious to them.

As it happens, Rockhurst High School is one of – perhaps the – most exclusive private high schools in the Kansas City metro area. There is little doubt that its families can afford to search out alternatives if necessary. Thus, Rockhurst should certainly have the alternative of offering drug testing to its students and parents. While the policy may well be unpopular with students, parents may just as well like it. Parents who don’t like it can enroll their children elsewhere.

If the policy proves unsuccessful, we all benefit from having learned this truth. Certainly it would have been better to have known it in the first place and avoided the hassle and unpleasantness of testing, but it isn’t always possible to know everything in advance. Sometimes we have to try things. That is one of the things that free markets are all about. If the policy proves successful, that will vindicate it in spite of initial objections – provided the objectors weren’t forced to undergo it.

But what about a policy of drug testing in the public schools? That’s a lab specimen of an entirely different color, to suit the metaphor to the occasion.

Time and again, this generic problem arises. Should public schools have a dress code? If so, which one? Should they teach evolution – or creation? And what does “teaching” either one of those mean, anyway? It turns out, then, that drug testing is not a unique issue at all. It is the same old issue in different guise.

There is no “solution” to questions like dress codes or religion in schools – no unique, one-size-fits-all solution, that is. The solution is competition. The solution is to allow different families to choose the alternatives they like best – and to change their minds when things don’t work out.

There is only one route to that solution. It lies through a free, privatized market in education. Mirabile dictu, this just happens to be the same economic solution to the decades-old problem of rising education spending and falling educational quality. Education reform dates back to the early 20th century, but results have been dismal. Economists know the source of the problem and they know that the answer is not more money spent on education. The bromide “you get what you pay for” is correct only when there is competition for the product being purchased.

Thus, a policy of drug testing in public schools should be rejected for the same reason that Nurse Hoover should be allowed to reject flu shots. Government has no right to force students to undergo drug testing against their will because public education is a quasi-monopoly provider. But the monopoly provision of public education should be ended, for this reason among a multitude of others.

Drug testing may be a good thing or a bad thing. Indeed, it may be a good thing for some people, in some environments or cultures, and bad for others. The only way to find out is to allow competition to prevail. And the only way to do that is to get government out of it.

The Politicization of Practically Everything

Today we face the Balkanization of American life, with interest groups facing off in the legislatures and courts. The executive branch of government (mayors, governors and the U.S. President) has come to view as a prerogative the ability to decide questions involving “rights.” In effect, this means deciding which people will have more goods and services and which people will have fewer. This is not the promotion of true rights. It is the exercise of power.

This abrogates the Rule of Law. It erodes respect for the law. It turns republican government into a form of totalitarianism called absolute democracy. Under that system, we vote to elect political representatives and they grant “rights,” or entitlements, to their supporters while depriving their opponents of true rights. This is what comes of elevating politics above all and ignoring economics.

The most recent manifestation of this aberrant democratic virus is the obsession to punish the rich. The party in power – the Democrats – has essentially unlimited power to write rules through legislation, regulation, executive order and judicial interpretation. That allows them the luxury of writing rules that reward their supporters and punish their opponents. Their supporters include plenty of rich people, but they are predominantly those who gain real income from foundations and carried interest. So Democrats write tax rules that favor those practices. Democrat rules define the “evil rich” as those who earn high annual incomes from entrepreneurship and salaries; i.e., Republicans. So Democrats raise taxes on “the rich” in the name of fairness by increasing marginal rates of taxation on high incomes. (Democrat entrepreneurs are granted waivers from Democrat rules and regulations such as ObamaCare legislation.)

Meanwhile, Republicans sit dazed and sullen. They await their return to power. At that point, they can implement their agenda by elevating the interests of their supporters and punishing the Republican analogues of the “evil rich,” such as immigrants and homosexuals.

George Orwell characterized a totalitarian society as one in which everything is politicized; everything is either mandatory or forbidden. The reflexive tendency to turn employment conditions and student privacy policies into political firefights is a symptom of neuropathy in the body politic. We have become insensitive to the freedoms of others.

The inherent purpose of government is to coerce, to promote conformity. Markets are not all-or-nothing propositions. They accommodate variety. They move incrementally. They promote diversity. By insisting that government do more and more, we are allowing markets to accomplish less and less. We are methodically chipping away at the zone of human freedom.

One thought on “DRI-248 for week of 1-6-13: Rights vs. Power

  1. Outstanding read, I just passed this onto a friend who was doing some research on that. And he really bought me lunch since I discovered it for him smile So let me rephrase that: Thank you for lunch!

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