Benjamin Birney Law and Nerdonomics


Americans United for Separation of Church and State

I have accepted an offer to work a summer internship for Americans United for Separation of Church and State - a fine public interest law firm if ever there was one.  I'll be in Washington D.C. for the summer, returning to Maine on frequent weekends to visit with Ivy and other friends and family. It's an honor to be selected as an intern for Americans United, and, if you have read through some of the other posts on my site, you'll understand why it's such a good fit for me!

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Liberty requires justice; justice requires liberty

Several years before I went to law school, I identified myself as a Libertarian. As I have learned more about how the law works, and how we think about why the law should do what it does, I have found that decision strongly reinforced. It occurred to me, in conversation with a close friend in the spring of this past year, that there is a fundamental connection between the purposes of the law and idea of liberty. At the time, I expressed the idea by saying: “Justice requires liberty; liberty requires justice.” I continue to think that statement is a correct one. I will attempt to justify it.


In order to convince you that my two statements are correct, we must first be talking about the same basic terms.  We all have a basic idea of what “liberty” means. For instance,  if I were to say “’Liberty’ means having the freedom to do whatever I want, to the extent that my actions do not reduce the same freedom in other people,” I would expect us to basically agree. (I am not claiming we would agree on the value of having that freedom, but I think we could agree on the definition.)

“Justice” poses a trickier problem. The word can mean many things to many people. To some it means doing what is fair; to others it means punishing people who do wrong; to others, it means giving everyone what he deserves to have because he is a human being.  However, the emphasized words are themselves debatable. What’s “fair,” “wrong,” and “deserved” are all very subjective inquiries, and reasonable people frequently disagree over what they mean in practice.  Further, in the real world, all three are basically irrelevant. They are coincidences to which we give labels. I’ve never yet met someone who got what he deserved, or what was fair, or what was right; I’ve met plenty of people who received what the earned, and got what they caused. If what a person gets happens to line up with what I personally think is “fair” or “right,” then I might think the world is a little better place – but those perceptions are my own, and guaranteed to be different from what other people perceive.

My world is as I cause it to be. I get what I earn, or what other people give me, I not having earned it. (Grace, for instance, is unearned, and un-earnable; likewise forgiveness.) There is room in this statement for accidents, or for serendipity; these things do happen. They are moments that we build our lives around. If I win the jackpot, I have been given a moment of serendipity; but what I get as a result depends on what I do, what I cause. Thus, we have the old saw about unhappy lottery winners. If I break my leg, my life will be as I cause it to be in the context of having a broken leg.

This leads me to my definition of justice, which I shall assume to be correct for the purposes of this discussion. Justice means a system in which we protect and maximize each person’s freedom to make meaningful choices. Why this definition? Two reasons. First, I submit (as, I admit, an assertion) that the greatest human experience is one in which we have the most ability to direct our lives and achieve what we want to achieve. This requires the maximum meaningful choice available to each person. Each person’s hopes and dreams are intensely personal, and to achieve them requires the ability to select from the greatest array of options at every branch in his life. To take a simple example, if my dream is to be the greatest craftsman of furniture I can possibly be, then I must be able to make choices that lead to training, to raw materials, and to tools. If I cannot choose these things, I cannot be a great craftsman.

Second, meaningful choice leads to personal power. If I have chosen what I have, then I am empowered. If not, I am reduced. To continue the craftsman example: If I choose to apprentice myself to a master craftsman for seven years to gain his skills and experience, then I am powerful, because I chose it. Each day when I wake up and work long hours for a low wage, I am doing it because I choose to defer gratification and better myself. If, on the other hand, I am enslaved to the craftsman for seven years, I have chosen nothing, and I am reduced in my power. I could legitimately claim that a terrible injustice has been worked on me.

(Slavery, in its pure form, is among the greatest injustices this world has ever seen. It reduces the human potential of a single person to nothing. The slave, given his choice, could pursue a life that would lead to greatness and benefit to everyone else around him; because he is denied that choice, we all lose the benefit of what he could achieve. Only murder is more unjust.)

For these reasons, I am going to continue with the assumption that Justice is a system that protects and maximizes each person’s freedom to make meaningful choices, to the extent that his choices do not limit the choices of other people. (I realize that this is terrifically abstract. I hope the discussion that follows will help make it more concrete.)


That liberty requires justice is so fundamental that you might overlook it. The idea is natural and intuitive. Very simply, if liberty is the freedom to make meaningful choices and justice is the system that protects and maximizes that freedom, then liberty without justice is vulnerable to being extinguished at any time by any person stronger than you. I may only make choices so long as I am free to do so; if you come along and make a choice that reduces my freedom, I have less liberty. Let’s look at some (deliberately) simple examples.

Suppose I have built a house and cleared some land to plant crops. This was my choice-driven act of liberty, calculated to give me some of what I want (and need) in my life: food, shelter, beauty, and fulfillment. Now suppose you come along and force me to leave “my” house and harvest “my” crops. I have no liberty; my choice has been restricted by your choice.

Now suppose I give you $100,000 for the right to possess a fertile piece of land with a house on it. (We must assume that both of us thought that we were getting ahead by the deal; otherwise we would not have entered into it. The subjective theory of value is a wonderful topic for another day!) Having done that, you refuse to move out, and forcibly prevent me from planting or tending crops. Absent recourse to the law, I have no liberty; my choice has once again been restricted by your choice.

These two examples illustrate how private property rights and free commerce – fundamental expressions of liberty – depend necessarily on a system of justice. “Recourse to the law” is not just a pretty phrase; it means that the full weight and power of “the law” – a smart, tough, resourceful group of people, cooperating together – will come to my aid when someone restricts my liberty.  The same will, of course, be true if I do something that restricts another person’s liberty; without equality under the law, liberty as a social concept is utterly meaningless. When we decide that, for instance, a black person may not own property, we have thrown any notion of liberty out the window; the tremendous benefits that flow from the black person’s liberty are lost to everyone.


This proposition is more difficult. Why should a justice system require liberty? Plenty of systems calling themselves “just” have greatly reduced the liberty of the people they purport to protect, often far beyond what is needed to protect the liberty of other people. This historical abuse of the word “justice” makes it harder for us to understand at an intuitive level why justice requires liberty. But return to the assertion with which I began this conversation: That justice is a system that maximizes each person’s freedom to make meaningful choices.

Now, I can hear you thinking: Ben, you’ve simply proved your argument by definition. If justice is what you say it is, then by definition it not only requires liberty, but actually causes liberty. I admit that my definition and this proposition naturally reflect each other. That does not mean the proposition is less true, if you accept the opening assertion. However, perhaps at this point you are questioning the assertion. Let’s return to it, and see if we can imagine a “justice” system that neither requires nor causes liberty.

Rather than pick a real-world court system – and there are plenty that bear examination as examples of justice without liberty – let’s instead imagine a hypothetical one. This hypothetical justice system enforces laws and rules without any regard whatsoever to the freedom of people to make meaningful choices. To keep this exercise credible, let’s imagine that our system is designed to do something that sounds attractive: It is designed to make sure every person has enough to eat and drink, someplace to live, and access to “adequate” health care. The legislators – however they come to be in that position – write laws with no thought to personal choice, but lots of thought as to how to allocate food, water, living space, and health care resources most effectively. Let’s even imagine, though this bears no relation to reality, that these magnificent central planners are actually able to perform this feat as efficiently as a free market, causing no shortages, surpluses, or interminable bread lines. The courts and police enforce the laws faithfully and strictly.

You live in this society. You are given food of adequate nutrition in the form of vitamin-enhanced bread. The water is free, but smells rather strongly of chlorine. You live in an apartment sized perfectly for the number of people in your family unit, but with no unnecessary or frivolous furniture, decorations, or luxuries. The temperature of the air and water are controlled automatically to save energy. Every month you are required to go to an appointed doctor for a preventative care check-up, and you are seen more frequently if the doctor determines that something is wrong with you. The doctor decides what medicine you will take, what operations you will have, and whether you will be treated for a disease.

This justice system is fulfilling its purpose. Whether you would rather have eggs for breakfast is not relevant, because it is not necessary; your vitamin bread accomplishes the social goal more efficiently. Whether you would rather have an overstuffed leather chair in your living room is of no matter to the law; the law cares that your apartment is large enough and contains adequate furnishings. Whether you would really rather have symptoms of an illness than take a particular medicine is similarly irrelevant to the law. The purposes of this “justice” system are being well and dutifully fulfilled.

I hope this illustrates to you the value of a justice system that maximizes choice. You are a powerful, intelligent, free human being. You are perfectly capable of deciding you’d rather have eggs for breakfast; you can make informed and reasonable decisions about your dwelling; your health care is within your control. An individual who makes choices for himself will lead the fullest and most expansive life available, full of opportunity, fulfillment, and value given to other people. Yes, you will sometimes need a safety net; no person can live without other people to help him. When you break your leg or get cancer or lose your job, you will need help from other people. But the point of choice is that you have the ability to construct your own safety net – by being part of a community, by conserving your resources for a rainy day, and by taking risks carefully and with open-eyed calculation.

A justice system that requires no liberty to protect is, I posit, no justice system at all. If you doubt the truth of this position, I can defend it in no better way than to direct your attention to the fine and well-seasoned body of dystopian literature. We, 1984, Animal Farm, Brazil, and hundreds of other thoughtful and compelling stories are out there to show you, rather than telling you, what it means to have liberty, and what it means to yield it. If you truly believe that justice can exist without liberty, then I encourage you to read some of them and imagine what it would be like to live in that kind of a world.


I have put forward the idea that (1) liberty requires justice, and that (2) justice requires liberty. These two statements are based on a foundational assertion: That “justice” means a system that protects and maximizes each person’s freedom to make meaningful choices.

I welcome your thoughts and comments.


Why Christians should be Libertarians

This article assumes a particularly Christian perspective for the purposes of arguing for a political position. I am a Christian, but I do not claim to hold every opinion that I have assumed for the purposes of argument; rather, I have assumed them to start from the same position as many devout Christians in America today.


Men are imperfect, and any government of Man is imperfect. Thus, the government most likely to secure Christians' rights to practice their religion and make the moral choices required of them to be saved is a government whose primary interest is in safeguarding moral and economic liberty.


Christians have long flirted with government as a means to the ends of our faith. The history of this flirtation is well worth reading and learning from, but I am not going to explore it right now. I want instead to focus on what Christians should do about government today.

First, there is no reason Christians should be categorically opposed to human government as a concept. If we start from and accept the precept that God is coming one day - soon, even - to redeem and re-create the world, it does not necessarily follow that while we wait, we can't try to keep the place tidy for Him. "Let every person be subject to the governing authorities; for there is no authority except from God, and those authorities that exist have been instituted by God." Romans 13:1. As I have not explored deeply the history of Christians in government, I am also not interested in digging deeply into the Biblical justification for respecting authority. Let us simply start from the position that obedience to government is not contrary to Christ's teachings.

But what form of government should Christians support? For what government should they advocate, if any? Assume, for the purposes of argument, that salvation is only available through baptism and obedience to God's law. An intuitive answer to the question might then be that the perfect Christian government is theocratic in nature, adopting as its laws the laws of the Bible. Under a true theocracy, the priesthood would serve as judges, using the power of inquest to root out crimes against God. If one accepts the premise that the Bible is the perfect Word of God, then no additional human law should be needed or desired. Setting aside for the moment the inevitable debate about what it means for Jesus to have "fulfilled" the law, Matthew 5:17, a Christian theocracy would maximize the number of citizens who attained salvation by maximizing the number who are baptized and obedient to God's law.

Since perfection is unavailable to humans, the perfect theocratic government might be an unrealistic hope, short of the Second Coming. The practical Christian might then ponder the virtues of a Christian Republic. Such a republic would acknowledge the superiority of God's law but create its own law in imperfect reflection.  Human rules, both criminal and civil, would be the law of the land, administered by judges and police. The rules would be shaped with an eye toward the closest possible conformity with Biblical standards available given the political realities of a republic. Speech that violates Christian virtues could be tightly restricted; religions deemed heretic could be banned; socially desirable behavior, such as prayer and charity, could be given encouragement by economic incentives or criminal sanctions.

Both of these options represent a yielding of choice from the individual to the group. This is not intuitively unreasonable, if the group is making decisions that are in accord with God's law. However, such a delegation of choice is flawed for two very important reasons, one easy to perceive, and one perhaps a bit harder.


First, the easier problem. We recognize that human beings are imperfect, and unable to fully perceive God's purpose; this is undisputed in most mainstream Christian traditions. No man or woman, no matter how well meaning, can make perfect judgments and perfect interpretations. Christianity acknowledges that men and women are flawed and sinful creatures, capable of perceiving good, but incapable of doing it consistently. Critically, this inherent flaw is reflected in the multitude of Christian sects, despite the Bible's many admonishments to maintain a single, unitary Church. When we place the coercive power of the government in the hands of men and women - and we must - then we accept that we place it in the hands of sinners. More significantly, though, we place it in the hands of people who make flawed and imperfect judgments about the meaning of God's law. There are no small number of very significant disputes between groups as to what the Bible means; absent divine intervention, we are unable to know which interpretations are correct. This is not an abstract problem; it goes to very real disputes that impact very real people, such as abortion, homosexuality, the proper forms of worship, dietary restrictions, and many other elements of Christian life.

The simple problem, then, is that we don't know who has it right. Is it the Catholics? Protestants? Eastern Orthodox? Branch Davidians? (For the record, I think not.) Absent perfect knowledge of God's law, any one interpretation may or may not be correct. If we give one interpretation the weight of government authority, the inevitable result will be the enforcement of interpretations and laws that are not the correct ones.


The second problem with religious government is about choice. We hold that men and women must love Jesus to be saved. Very well. But what does it mean to love Jesus? CanI love Jesus if I have no choice not to love Him? I cannot, for love must be freely given. Affection forced is no affection, and obedience forced is not virtuous obedience.

This is also not an abstract point, because a theocratic form of government, again by definition, denies choice to its citizens. Let us say that our rulers have decided that it is sinful to fail to tithe, and use the coercive power of the State to levy a 10% income tax, to be given to the church chosen by the State. My tithe is no act of love or obedience, because it has been forced on me. The same is true of personal magnanimity, charity, self-discipline, and every other Christian virtue. If I am forced to be virtuous, I am not virtuous; I may only be virtuous by choice. Thus, a theocratic government actually denies me the opportunity to be saved by denying me the opportunity to choose virtue.


Liberty offers the promise of salvation. Why? Freedom from coercion and the freedom to act ensure that no Christian may be forced into acts that he believes to be morally repugnant, nor denied the opportunity to make the meaningful moral choices that lead to true love for Jesus. Both kinds of freedom are required for salvation: the freedom from coercion to sin, and the freedom to choose virtue. These are prerequisites to leading a Christian life. No man's life may be perfect, but with these freedoms, we have the opportunity to achieve the "good enough" that was Jesus's gift to us in grace. But if we deny liberty to our fellow men and women, even in the name of enforcing God's law, we deny them to ourselves at the same time.

Some concrete examples may make this more clear. Let us suppose that we empower our local government to prohibit as "contrary to public policy" some things we think are sinful: adultery and gambling. In bringing the coercive power of the State to bear on these moral choices, we have denied every citizen the opportunity to choose not to commit adultery and not to gamble. The result is a society that appears more virtuous on the surface, but has stunted its ability to make moral choices. Furthermore, we have created a government that has acquired a taste for coercive control and the tools to exercise it. Such a government is perfectly capable of then declaring that positive Christian virtues, such as group worship, are "contrary to public policy." It is in the nature of power to seek more power.

Now let us instead suppose that we have created a government of limited, enunciated powers. Those powers are focused on preserving the liberty of each individual to make meaningful moral and economic choices, and preventing each individual from restricting the same rights in other people. Some people will undoubtedly commit adultery and gamble. However, if Christians are truly doing the job Jesus gave them to do, then they will spread the Good News among citizens, who the State has empowered to choose virtue of their own free will. Now Christians have reduced, through the intelligent use of government, the possibility that they will be coerced to sin, and they have also safeguarded their opportunity choose a virtuous life that demonstrates love for Jesus and obedience to God's law.


I have attempted to demonstrate that only a government which safeguards personal liberty gives Christians the opportunity to fully realize and spread their faith, as required by Jesus. In the future I will examine the connection between moral liberty and economic liberty.

DISCLAIMER: These are my views, synthesized from my own experience and reason. They undoubtedly match the views of people who have thought about these issues in the past. I have not cited other writers because I did not consider them in reaching my conclusions.

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