Wednesday, March 7, 2012


In recent years, Paul Gessing, Executive Director of the Rio Grande Foundation (RGF), and I have exchanged views on a variety of issues. I believe that we have always been polite and respectful, but we have sometimes expressed ourselves with the pungency of people who care about the issues. I do not think that we have ever agreed, and I doubt that we ever shall. So what? Neither of us benefits from shouting into an echo chamber.

I only partly share the view of many that RGF is a mouthpiece for conservative causes and parties, and the oil and gas industry. I mostly take it at its website word that it is “a research institute dedicated to increasing liberty and prosperity for all of New Mexico's citizens. We do this by informing New Mexicans of the importance of individual freedom, limited government, and economic opportunity.” However, I have some doubt about its claim to do “research” because its published writings are mostly digests of others’ work—and all on one and always the same side of the issues. Its forums are similarly one-sided.

In my most recent blogs and columns, I have taken the Republican Party, aided and abetted by the Tea Party, to task not only on various issues, but also on its intellectual incoherence and moral confusion. I am not party to the belief that those on the Left are more intelligent than those on the Right. Intelligence is pretty much even distributed across the spectrum. But I think that the intellectual dispositions of the two sides differ. The Left is more theoretical and strategic; the Right, more empirical and tactical. My only qualification of this rule, to which there are many exceptions, is that the Right currently seems more inclined to factoids and fabrications than to facts. I think that the realities of the modern world, including globalism and high technology, no longer fit the economic and political views of an earlier time of this one nation and little technology.

On the narrow subjects of state-mandated, pre-abortion, trans-vaginal sonograms and the availability of contraceptive medication or devices, I have scored Republican leaders for abandoning their first principles of individual freedom and small government, the latter reflected in lower taxes (always) with fewer regulations (regardless). My covering letter to a blog on my father’s political reorientation, from Republican to Democrat, prompted Gessing to respond. I shall let our 5 March exchange speak in support of my views that intellectual incoherence and moral confusion reign on the Right today, and that Gessing’s inability to give responsive answers is typical of the Right’s political muddle in this election year. You will note that it is a long way from the bill payer for birth control to federal tyranny, by way of the First Amendment and the Holocaust.


At 10:03 AM, Gessing wrote: Limbaugh is an ass, but that doesn’t mean that paying for birth control should be paid for by the federal taxpayer.

At 11:56 AM, Hays wrote: Any [And] why not? Some medications are more or less gender-specific. Do you have a problem with women having specific health problems requiring specific medications?

And if the “consent of the governed” means anything, then a majority wanting contraceptive medications and devices—some provide birth control, which many men want women to ensure; some provide birth control for medical reasons; and some provide health assistance--says that it should be paid for by the federal taxpayer. Do you have a problem with the “consent of the governed”?

At 12:14 PM, Gessing wrote: Majority rule is tyranny. That’s why we have a first amendment and we abhor the Holocaust. That’s majority rule. The federal government should not be in the business of buying drugs for anyone, regardless of who or what the drugs are used for. This does not prohibit individual states from doing this, just the feds.

At 12:46 PM, Hays wrote: This statement, “majority is tyranny,” is about as anti-democratic as any which I have seen. Astonishing.

With respect to the present, limited topic, how is either the First Amendment or the Holocaust involved in questions of contraceptive devices or medications? Are you equating federal provisions for buying health care services with conducting the Holocaust? Is this some kind of “Jew card,” to make critics of your position appear to put themselves in the position of seeming to be anti-Semitic?

The First Amendment, by the way, does not undermine the Constitution, as you would have it, or erect a barrier to federal legislation in most areas of public interest. It and the other amendments enumerated specific rights of individuals and states. The Tenth Amendment specifies exactly nothing which cannot reasonably be understood to be encompassed by the language of purpose in the Preamble to the Constitution.

More generally, why is the state better at avoiding tyrannical behavior than the federal government? The federal government does not mandate unnecessary and unwanted medical procedures like trans-vaginal ultrasounds. Virginia and some seven or eight other states do. Your silence on the subject, given my 25 February blog,” does not impress me with your commitment to RGF’s professed standards of “individual freedom” and “limited government.”

At 1:16 PM, Gessing wrote: The first amendment protects the rights of the minority against the majority. Majorities have violated the interests of the minority in ways big and small for eons. That is my point.

At 2:09 PM, Hays wrote: Wait just a minute. That was not your point; your point was a general principle, not a historical fact. Accordingly to your principle, majority rule in the states is also tyrannical. According to American history, instances of state tyranny are far more common than any instances of federal tyranny (I am at a loss to think of acts of federal tyranny other than the Palmer Raids and the Japanese internment[.]

Jefferson said that the price of freedom is eternal vigilance, but he did not say that the tyranny of the majority is constant or inevitable. Indeed, the entire system of Constitutional checks-and-balances, not to mention the Electoral College and the first ten amendments, were efforts to prevent unrestrained majoritarianism. In short, majority rule can be tyrannical, but the design of the Constitution, though intended to provide for a strong federal government, built in protection to prevent overreaching tyranny, and it has done a very good job. What he ware [we are] seeing in states like Wisconsin and Ohio, which are in the control of one party determined to do as it wishes, is state tyranny. Your dyspepsia is about democracy at the federal level has little in the way of historical evidence to justify it.

You have tried to tie federal government, but not state, purchases of drugs to tyranny, the First Amendment, and the Holocaust. I am waiting for you to explain what the connections are, and why what is permissible for the state governments to do is not permissible for the federal government to do? And given your concern with “tyranny” and your convictions about “individual freedom” and “limited government,” I questioned how the concern and convictions fit into the greater or even exclusive fitness of the state to involve itself in medical matters. Replies which do not explain these points I shall take as proof that you cannot explain them.

At 2:19 PM, Gessing wrote: The federal Constitution provides a base line for our freedoms. The states, if the people within their borders so choose, can choose regulations and other economic policies that don’t directly infringe upon the rights explicitly granted in the Constitution. The beauty of having such a program or regulation at the state level is my ability to leave if I don’t like them. That’s federalism.


A final note. I did not respond to Gessing’s last comment. Most of the argument having come full circle, I declined to continue recycling restatements only to return to the place where we began. I did not challenge his unstated assumption that the federal Constitution is self-enforcing; it is, after all, the expressed will of the supermajority required to adopt or amend it and, by his logic, tyrannical.

Nor did I challenge his love-it-or-leave-it answer to state tyranny. First, I fail to see that state tyranny is any better or worse than federal tyranny, and he does not assert, much less argue, any significant operational or even theoretical difference. Second, I am baffled that a professed proponent of individual freedom would suggest that flight from state tyranny is the preferred option. The same might be said with equal logic of federal tyranny.

The oddity of this exchange is that what began with Gessing’s statement about taxpayer funding of contraception escalated into his statements about federal tyranny. I miss the steps from the one to the other. In their absence, Gessing, though ideologically driven, cannot connect his professed commitment to individual freedom or limited government to specific issues. When does he?

1 comment:

  1. Both Gessing and I erred in talking about federal funding of contraceptives. Except for some funding of contraceptives in the military, the government was requiring that contraceptives be covered by insurance companies.

    My error notwithstanding, I think that we have problems with a healthcare system reliant on the private sector. As a general rule, anytime you get the private sector providing health, social, or educational services, corner-cutting for profit-pushing undermines the quality (and quantity) of those services. Which is not to say the public sector provision of such services guarantees excellence--it does not--but it is more amenable to correction.