Is There a Right to Water?

by Dr. Gerard Emershaw

The city of Detroit has been shutting off water to residents who have not paid their bills. Water in Detroit is provided by The Detroit Water and Sewerage Department (DWSD), a non-profit organization that is forbidden under Michigan law from earning a profit but is also not subsidized by taxes. At least 7,000 Detroit homes had no running water as of the beginning of October 2014, and the DWSD plans to go back to shutting off water to residents who do not pay their bills—shuts offs at an expected rate of 400 per day. Judge Steven W. Rhodes at the U.S. Bankruptcy Court for the Eastern District of Michigan ruled that no basic human right to water exists. Therefore, the DWSD is legally being allowed to shut off water to Detroit residents. Given that the city of Detroit is desperately bankrupt, the city itself cannot afford to provide life-sustaining water to residents whose water is shut off by the DWSD.

Judge Rhodes is correct in stating that there is no right to water. The natural rights which human beings do possess are the rights to life, liberty, and property. Water—like homes, health care, jobs, money, WiFi, etc.—is a commodity and not a right. There is a finite amount of this commodity whereas the rights to life, liberty, and property are not finite. My rights to these cannot conflict with yours or anyone else’s. But my “right” to a finite commodity can conflict with yours. Especially in cases where there is simply not enough to go around for everyone.

It is undeniable that water is necessary for human beings to survive. But this does not mean that failing to provide the commodity of drinking water to a human being in any way violates his or her right to life. The right to life means that neither the government nor any private entities may deprive one of his or her life without due process. This negative right has nothing to do with the nonexistent positive right to water.

Water should be provided by for-profit private entities. There should be no restrictions on these entities as there is on the DWSD. However, as in most cases water utilities are natural monopolies (industries where it is most efficient for a single firm to provide the service), the federal government has a duty to provide some regulation. In the case of water, this would likely mean that water utilities would not be able to charge unconscionably high prices for water. But this would not entail that water utilities would have to provide the service to those who do not pay for it.

My new book The Real Culture War: Individualism vs. Collectivism & How Bill O’Reilly Got It All Wrong presents Emershaw’s Individualist State, a minarchist formulation of government in which the vast majority of property—including utilities—are privately owned. Emershaw’s Individualist State does not allow the government to place high taxes and burdensome regulations on businesses. Therefore, such a society is highly likely to be far more affluent than the semi-socialist society of the contemporary United States. There would be few if any communities like Detroit that have been destroyed by heavy-handed government action and corporatist crony capitalism. Far fewer individuals would be unable to afford to pay for water, and there would be far more private charities and mutual aid societies to help any who had fallen through the cracks and found themselves unable to afford water. While a fiscally responsible federal government along with fiscally responsible state and municipal governments would not allow entire cities to fall into impoverished chaos as is happening in Detroit, widespread poverty could nevertheless still strike especially in emergency situations. In such cases, it is the duty of the government at the municipal, state, and federal government to ensure that a state of unrest does not occur which would threaten the life, liberty, and property of residents. However, this does not entail that any government indefinitely pay the water bills of thousands of individuals. If one cannot pay one’s water bill, then one cannot afford to live in the residence. In a case such as Detroit where 24,000 or more may have their water shut off, the possibility of unrest is great. Government may need to intervene until the crisis passes. Responsible night-watchmen governments at the municipal, state, and federal levels would have prevented this crisis in the first place. Unfortunately, Detroit may prove to be a microcosm of wider problems that will face the United States soon as a result of progressive anti-business government practices and the corporatist crony capitalism that collectivist forms of government inevitably create.

(For a much more detailed discussion of natural rights as well as a detailed presentation of Emershaw’s Individualist State, read my new book The Real Culture War: Individualism vs. Collectivism & How Bill O’Reilly Got It All Wrong. Available now on Amazon in both print and Kindle.)

Typhoid Mary, Tyranny, and Defense

by Gerard Emershaw

Canada recently had an Ebola scare. A man who had returned to the country from West Africa, which was experiencing a terrifying Ebola outbreak—fell ill in a Canadian hospital while exhibiting potential symptoms of Ebola. While it turned out to be a false alarm, this raises an interesting issue. With Ebola, 1,500 of the 2,200 recorded cases have been deadly. If individuals were thought to be infected with such a deadly and communicable disease, the CDC would no doubt act by quarantining those thought to be infected—taking away the liberty of these individuals despite the fact that no crime was committed.

Fear of such deadly outbreaks has long been a part of the American pop culture zeitgeist. Films such as Outbreak, Twelve Monkeys, and Contagion have tapped into this primal fear. The current “zombie apocalypse” craze represented by films such as 28 Days Later and World War Z as well as the popular AMC television series “The Walking Dead” often involves plots which are set in motion by contagious diseases.

The most famous case of an American being forcibly quarantined is that of Mary Mallon—a.k.a. “Typhoid Mary.” Mallon was an Irish immigrant who was born in Northern Ireland in 1869. She moved to the United States and eventually worked as a cook. Mallon was an asymptomatic carrier of typhoid. It is estimated that she infected as many as 49, three of whom died. In fairness, not only was Mallon not big on the hygiene, but she stubbornly refused to do even the most basic things that a cook ought to do—such as washing her hands. Mallon refused to give up her profession as cook or have her gall bladder—which was badly infected with typhoid salmonella—removed. As a result, in 1907, Mallon was arrested and detained against her will for three years in a clinic on North Brother Island on New York’s East River. Upon her release, she was given work as a laundress. However, under an assumed name, Mallon soon began working jobs as a cook, again infecting people. She was again arrested and detained on North Brother Island until she died in 1938,

Mallon was obviously a willful and spiteful woman with no regard for the safety of others. However, it is not difficult to imagine a case where a sympathetic person becomes the carrier of a contagious illness. Does the government have a right to take away such a disease carrier’s natural right to liberty? One could imagine a die hard libertarian like the fictional Ron Swanson of NBC’s “Parks and Recreation” saying: “A man is responsible for his own immune system. A lady is, too. We don’t need big government wiping our noses.”

The United States federal government claims the power to forcibly quarantine individuals with communicable diseases under the Commerce Clause of the Constitution. The specific law granting the President the power to allow the Center for Disease Control (CDC) powers of quarantine is 42 U.S.C. § 264—Regulations to control communicable diseases. According to this law, the President may specify in an Executive Order a communicable disease for which the government may apprehend, examine, and detain an individual. An individual may be detained if he or she has a communicable disease specified by the President and is either moving from state to state or in the process of doing so or is a probable source of infection for other individuals who are likely to move from state to state. Given how mobile Americans are in the modern age and given the various forms of transit, this essentially gives the President the power to have any person with a communicable disease detained “for such time and in such manner as may be reasonably necessary.”

Using the Commerce Clause as justification for this executive federal quarantine power is dubious. Having typhoid, Ebola, influenza, the zombie plague, or the monkey pox has nothing to do with regulated commerce. However, the federal government may have such a power based merely on its national defense function. As commander-in-chief of the armed forces, the President has the duty to protect the nation and its citizens. While Congress has the power to declare war, the idea of declaring war against typhoid, Ebola, influenza, the zombie plague, or the monkey pox is absurd. In the Prize Cases during the Civil War grants the President the power to resist an attack by a foreign power without consulting with Congress. In the modern technological age where an attack can be launched in minutes rather than months, this is essential in defending the Republic. In many ways a serious communicable illness can be seen as a threat akin to a military attack.

Even if there is enough of a parallel between a military attack and a communicable disease, this still does not necessarily give the government the right to detain an individual who has committed no crime. It seems odd to claim that a person’s Fifth Amendment right to due process can be satisfied by a physical examination by a doctor instead of an impartial court hearing or the like.

Another issue is that this may be giving the President too much power. History has shown what Presidents are willing to do in the name of national security. Franklin D. Roosevelt’s Executive Order to place Japanese Americans into internment camps without due process will forever be a scar on the nation and the office. There seems to be no mechanism that limits the President’s authority here. Where should the line be drawn? Ebola? A bad case of the flu? A mild cold? If an illness is in a “precommunicable stage,” then the President can only have an infected individual detained “if the disease would be likely to cause a public health emergency if transmitted to other individuals.” This is a bit vague, but it at least provides a coherent criterion. However, if the disease is at a “communicable stage,” then there is no limit. There is also no specific criterion for what “for such time and in such manner as may be reasonably necessary” precisely means. Determined to be “reasonably necessary” by whom? By the Surgeon General? By the physician involved with the individual’s case? By the President? By someone else? In principle it is possible that nearly any individual may have some virus or the like which is communicable at any given time. What would prevent a President from simply using this fact as an excuse to detain an individual for arbitrary and capricious reasons?

There does seem to be some justifiable point at which an infectious individual can be quarantined against his or her will when the infectious disease is serious enough. Even though the person is innocent, he or she can be detained in the way that a person who is acting violently and who has become a danger to others as a result of some force beyond his or her control—mental illness, brain tumor, brainwashing, hypnotism, etc.—can be detained. The last thing a nation with a $17 trillion debt needs is herds of zombies roaming the countryside in search of brains to eat. However, how can a line be drawn? There are some people with very compromised immune systems? Should the President base his or her decisions in this regard on the case of some “Bubble Boy” or on someone with an iron constitution and supercharged immune system? While perhaps this all seems like an absurd problem that is not genuine and that has no place outside some hypothetical discussion in a philosophy class or in a bong smoke filled room, given how recent Presidents have trampled on the Constitution, is there any reason to rule out abuse in this particular area?

Natural Right to Ricin?

by Gerard Emershaw

Daniel Harry Milzman, a 19-year-old Georgetown University student, was recently arrested by the FBI for possession of a biological toxin when he was caught with ricin in his dorm room. Ricin is a deadly toxin which is produced from the castor bean. There is no known antidote. There have been several incidents involving ricin over the last several decades. Ricin entered the pop culture zeitgeist when it was involved with several key plot points in the AMC television series “Breaking Bad.” Last summer Shannon Rogers Guess Richardson of Texas was arrested for mailing ricin letters to Mike Bloomberg, President Obama, and a lobbyist in an attempt to frame her husband.

In the case of Richardson, a crime was clearly committed. Mailing poisoned letters is an attempted deadly attack. However, in the case of Milzman, there was no attempted attack. It could be that having ricin in a dorm room constituted a clear and present danger. However, let us change the case a bit. Assume that someone like Milzman manufactured ricin and kept it in a secure location. Should there be a crime there or does a human being possess the natural right to possess ricin? Guns are no less deadly, and yet there is clearly a natural right to bear arms which is protected by the Second Amendment. Perhaps ricin is not as effective a means of self-defense as is a handgun or rifle. But so what? One can still envision situations in which one used poison in self-defense.

In addition to being a deadly poison, ricin has potential therapeutic use in fighting tumors. As such, scientists who register with the government are allowed to have small amounts of ricin.

If one is not using, planning, or conspiring to use ricin or the like to harm another human being, whose natural rights have been violated? Where is the victim? Why should it be a crime? There are countless substances which are potentially poisonous. If each were to be criminalized, the nation would be deprived of a large number of useful chemicals. So, where should the law draw the line? My right to swing my fist ends where your nose begins. If I do not swing my fist at your nose, should the government ban my fist?

This issue becomes even more difficult. Does a human being possess a natural right to own chemical weapons? Mustard gas? What about radioactive materials? Does a human being possess the natural right to own an atomic bomb? While it would be ridiculous to claim that a person in the suburbs is going to use a working replica of the Fat Boy atomic bomb to protect his or her white picket fenced 2 ½ bathroom home from burglars or home invaders, why assume it is for self-defense at all? Just assume that this person wishes to own an atomic bomb. Most would no doubt not even be willing to entertain this possibility. A libertarian is willing to give it some thought. Some libertarians may even conclude that there is a natural right to possess an atomic bomb. Most likely the federal government would claim that there is no way that members of the general public could safely control either ricin or nuclear devices and that such things represent a clear and present danger. But can the federal government use this to allow its national defense function override the exercise of freedom?

As long as Americans continue to be arrested and thrown into prison for merely possessing narcotics, the nation is far from the point where it needs to genuinely consider decriminalizing ricin or atomic bombs. However, it is far past the time when victimless crimes should be dropped from criminal codes. Human beings possess a natural right to use drugs. They have a natural right to engage in prostitution and to gamble. Do they also possess the natural right to possess ricin or an atomic bomb? Maybe. Let us end the War on Drugs and other ridiculous Puritanical crusades which violate natural rights by criminalizing consensual and victimless activities. Then we can continue this discussion.

Libertarianism and Animal Rights

by Gerard Emershaw

In the libertarian worldview, do animals possess rights? Human beings possess natural rights to life, liberty, and property. In addition, they possess the responsibility to respect the natural rights of their fellow human beings. Human beings possess these natural rights simply in virtue of their humanity. The crucial component of humanity which gives rise to these rights is the autonomous nature of human beings. They are rational creatures possessing the capacity to make moral decisions. Because a human being would no longer exist if deprived of life, he or she has a right to life. Because only an individual human being can decide his or her actions, he or she has a right to liberty. Because a human beings is capable of possessing property and because the rights to life and liberty can only be exercised through the use of tangible property, he or she has a right to property.

Animals are not autonomous creatures. Even the most intelligent non-human creatures on the planet—chimpanzees, gorillas, dolphins, etc.—are not capable of rational deliberation. They are not capable of morality. They act merely based upon instinct and conditioning. This means that the notion of animal rights is incoherent. Animals cannot possess rights because they cannot be subject to responsibility. A lion cannot have the right to life, liberty, or property because it cannot be expected to respect the life, liberty, or property of other creatures. A lion will kill and consume a gazelle without regard to morality.

If animals do not possess rights, what does this mean? For one thing, it justifies the common human practice of owning animals as livestock, pets, helper animals, etc. If animals possessed rights, then animal ownership would amount to slavery. Even in the case of the beloved and pampered pet. A well treated slave is nonetheless still a slave. However, since animals do not possess rights, they may be held as chattel. In the case of pets, this is good for the animals. Most pets are well treated. In the case of species as a whole, this is good. When humans own animals of a certain type, that species is unlikely to become instinct. There is certainly no shortage of domestic dogs, cats, birds, etc. If exotic animals on the verge of extinction were subject to ownership by private individuals, one expects that their numbers would gradually rise to the point where they would no longer be endangered.

Given that animals do not possess rights, this makes it unjustifiable to prosecute and punish individuals for animal cruelty or the like. Since animals do not possess rights, they cannot truly be considered victims. Victimless crimes should not be treated as crimes at all. Notice the inconsistency and hypocrisy involved with “animal cruelty” laws. Hunting is permitted. There is no legal requirement that an animal killed by a hunter be killed cleanly and quickly. Factory farming is permitted. Despite the fact that factory farms often resemble animal death camps, the corporations that engage in the practice are given wide latitude to essentially torture animals while individuals may be prosecuted for cruelty to animals that pales in comparison.

Perhaps one believes the for the sake of consistency, hunting and factory farming should be outlawed as well. But on what grounds? Many humans love and cherish animals. This is perhaps one of the human race’s most admirable qualities. However, merely because something is commonly adored, it does not give the majority who love that thing the right to punish those who do not love it. Even if that thing is harmed or destroyed. An animal owner has the right to have his or her livestock or pets protected. If one were to harm or kill that person’s animals, then a crime against property has been committed. But how is exploiting, killing, or even torturing your own property a crime? How is doing the same to wild animals a crime?

While far too many people tend to equate morality with law and scream: “There ought to be a law!” for each and every moral problem, libertarians do not foolishly collapse morality into legality. Perhaps it is morally wrong to never call your lonely and widowed granny, but no libertarian would suggest that someone should be arrested for not phoning his or her granny. Therefore, even if cruelty to animals is morally wrong, libertarians should not be willing to claim that it should be illegal.

The question then arises as to whether or not cruelty to animals is morally wrong. Intuitively, it seems that is should be. But on what grounds? From a Kantian perspective, it seems that human beings do not owe animals moral consideration because animals lack moral autonomy. A human being must only refrain from treating other rational creatures as means to an end rather than as ends in themselves. From a consequentialistic perspective, one may attempt to argue that cruelty to animals creates bad consequences. One might begin by claiming that many who mistreat animals eventually go on to mistreat human beings. For example, hurting animals is a common criterion for sociopathy and many sociopaths wind up committing serious crimes against their fellow human beings. But many who harm or kill animals—farmers, hunters, etc.—are no more likely than anyone else to commit crimes. There are many traits associated with a greater likelihood of harming others—being poor, being young, being male, being a member of certain ethnic groups, etc. Should these traits be considered morally bad simply because they are correlated with a greater likelihood of committing crime? Should the people who possess these traits be considered morally repugnant simply for possessing these traits?

Despite not possessing rights, animals are sentient creatures capable of experiencing pain and suffering. Is this not enough of a reason to consider needlessly harming animals at least morally indecent? Should not any rational human being acknowledge that pain and suffering in and of themselves are bad? Torturing animals is clearly morally indecent. So, too, is killing animals without good reason. But what other than self-defense, the defense of others, or basic survival can justify harming or killing animals? Can enjoying a lovely fur coat justify killing animals for pelts? Can enjoying a fine filet, pork chop, or chicken wing justify killing animals for food when human beings can get enough protein without resorting to eating animals? Can the high usage of land and water that is necessary to raise animals for food be justified when so many in the world are starving? Despite the fact that animals do not possess rights and that animal cruelty should not be prosecuted where the animals harmed are not the property of another, questions of the ethical treatment of animals by human beings are difficult to answer. However, unjustly turning potentially immoral behavior into crimes does nothing to address such important ethical concerns.