Scalia's Folly


I am of two minds when public officials exhibit rank ignorance and mendacity. It is sad because it leads to injustice. But it is refreshing to be reminded that those in government are by no means mental giants or paragons of virtue.

So, when I learned that Supreme Court Justice Antonin Scalia slandered libertarians en masse, I had these mixed feelings about it. What a shame -- yet how nice to learn again just how idiotic or nasty the big guys can be. This should all teach us never to trust them too much.

The following story comes from Slate online magazine, reporting on the oral argument in the case of Olympic Airways v. Husain. "H. Bartow Farr III represents Hanson's widow, and as he starts to speak, Scalia hijacks him with a hypo in which a man 'hurls himself into the sea, intending to commit suicide,' while nearby there is a dock with 30 people, each with a life preserver at his feet, all of whom refuse to throw a life preserver to the drowning guy. 'I don't know,' he adds. 'Maybe they're 30 libertarians.' Scalia says even though that result would be 'unexpected,' no one would call it an 'accident' ."

The explicit message from Scalia is that 30 libertarians are so morally obtuse and callous that they would simply watch someone drown, without any moral compunction. By Scalia's thinking, libertarians as such pay no heed to a fellow human being in distress.

As my friend Joe Cobb noted, 'It is sickening to see the Supreme Court's sharpest thinker slander libertarians this way.' Of course, since libertarianism is, strictly speaking, a political idea, it doesn't directly address the matter of the ethics of rescuing people. But neither does republicanism or the theory of democracy. These have to do with public policy and organization, not with the ethics of human individuals. Let's leave aside the fact that Scalia's hypothetical is confusing -' a guy who is trying to commit suicide does not want to be, and perhaps cannot be, rescued at all. It is, however, a vicious thing to assume, as Scalia apparently does, that those who promote individual liberty as their political ideal would be morally callous to the bone. There is no evidence for this whatsoever and Scalia, predictably, offers none. Even the late novelist-philosopher Ayn Rand, a defender of libertarian ideas under the label 'capitalism,' who advocates, in her book The Virtue of Selfishness, A New Concept of Egoism (1961), that people ought to be rationally, intelligently selfish, does not teach that no one should be generous, benevolent or charitable. What she teaches is that a morality that is forced upon a person is meaningless. If one helps because one is legally required to, that is nothing morally commendable at all. No one can be ethical or morally good at the point of a gun, she has argued, as have Immanuel Kant and, much earlier, Aristotle.

So, yes, libertarians would oppose forcing people to help -- is it help, in any case, when it is coerced? -- so they do not believe in what are usually called Good Samaritan laws. The reason is that (a) libertarians focus on political principles and laws, not on personal moral standards -' their school of thought is a political not an ethical one, primarily; and (b) they tend to agree that when it comes to acting morally, ethically -' including generously, benevolently, helpfully -' this must arise from their convictions, not from state coercion. But as human beings, libertarians, probably more so than others, are convinced that it is one's moral responsibility to lend a hand in emergencies. That's because they cannot defer to state action when emergencies occur. The only exception may be if there is a greater emergency to attend to with a loved one involved.

But that is not the kind of case Scalia was dealing with. So, his remark was either rank ignorance or vicious slander. And, as I noted at the outset, this is lamentable, given the influence of a Supreme Court Justice's thinking on public policy. Yet it is also gratifying to learn that once again a high official of government has shown that most ordinary citizens are often far smarter and more decent than those in high public office.

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Tibor R. Machan's picture
Columns on STR: 70

Tibor Machan is a professor of business ethics and Western Civilization at Chapman University in Orange, Calif., and recent author of Neither Left Nor Right: Selected Columns (Hoover Institution Press, 2004).  He is a research fellow at the Hoover Institution, Stanford University.