Charles Johnson - 1/11/2005

Lopez: "Who asked for this promise? When?"

Roderick: "Does someone have to ask for it? Why? We're talking about a promise, not a contract."

Lopez: "Isn't a contract just a formalized promise? I honestly don't see the distinction you're trying to make, here."

Trying to channel the shade of J.L. Austin for a moment...

I think the speech act here is neither a contract nor a promise; it's an oath, which is similar to both in certain respects but also importantly different.

A contract, to start out with, is more than a formalized promise. You can make (ethically binding) promises that fail to meet the conditions of being a contract. For example, if I promise to get you a pony for your birthday and then renege, I've broken a promise (and done something which is blameworthy unless there are extenuating circumstances). But I haven't breached a contract: among other things, there is no quid pro quo.

The lack of quid pro quo is connected with another feature of promises as against contracts: they can be more unilateral; you can make unasked-for promises (my promise ethically binds me to get you the pony whether or not you asked me to make it), whereas contracts by their nature have to be (in some important sense) reciprocal.

But while promises can be *more* unilateral than contracts, they cannot be *completely* unilateral. There are such things as unasked-for promises, but there is no such thing as a promise made to no-one in particular, and there's no such thing as a promise made to someone not in a position to receive it (e.g. if I say "I promise to buy Lopez a pony for his birthday" in my room and never tell you about it, I haven't made you a promise; if I say "I promise to buy you a pony for your birthday" and you reject the promise--"I don't want a pony for my birthday," say--then I'm not bound by a promise either). Similarly, as Austin points out, while there can be such a thing as an unasked-for promise to benefit someone, there is probably no convention for an unasked-for promise to harm someone ("I promise to bean you on the head" may be binding if you've asked me to bean you on the head for some reason, but not if you haven't asked me; contrary to the cheesy quip, that's a threat, not a promise).

Oaths, of course, are different; their binding force, unlike that of both contracts and promises, is entirely self-regarding. You can make an oath *to* someone, but you don't *have* to; you can, e.g., take oaths of vengeance without the knowledge or consent of anyone else (least of all the intended victim). Importantly, when you break an oath of this sort, if it's blameworthy, then it's blameworthy because of what it means about *you*--whereas the blameworthiness of breaking a promise or breaching a contract *primarily* comes from the fact that you are doing wrong by *someone else*.

All of these conditions, of course, are relevant to what a n office-holder is doing when they swear to uphold the Constitution. Among other things, it's unclear whether they are swearing this *to* anyone in particular. You could say it's a promise to each of the citizens of the U.S., and the fact that they never asked for it wouldn't count against taking it as a promise; but the fact that it is clearly made whether or not we consent to it (you and I and Lopez, for example, don't), and the fact that some of the terms of the unasked-for "promise" involve harming us, do count against so taking it.

Is it extra-blameworthy to break an oath to do evil? I don't know; I suppose that's a question that the epics have grappled with in a lot more depth than I could here. Of course, you have to distinguish breaking an oath to do evil in order to do good (which is probably praiseworthy courage, in most cases at least, although courage may require taking a heavy cost for having taken an oath that you couldn't ethically fulfill) from breaking an oath to do evil in order to do even more evil than the oath provided for (as in the case of most everyone currently in the U.S. government). In the latter case, my suspicion is that the oath-breaking makes the oath-breaker more contemptible but probably doesn't make the acts themselves any more evil than they otherwise would be. But I'm not firmly convinced either way.

John Lopez - 1/11/2005

>> Which people, specifically?

> All the citizens of America.

I didn't ask for it.

> ... We're talking about a promise, not a contract.

Isn't a contract just a formalized promise? I honestly don't see the distinction you're trying to make, here.

> The promise to do forbidden things is null and void; but why isn't the rest of the promise binding?

I suppose that that's the case if the Constitution is a list of things that can be picked from (caveated by the question above). However, doesn't the concept of upholding the Constitution require upholding all of it, and using only Constitutional methods to alter it? In other words, can you both uphold the Constitution and not uphold it?

Sheldon Richman - 1/10/2005

Clarification of early-morning musings: I meant to say that not only did Spooner believe that slavery violated the Constitution, he also wanted to take the high ground from the slavery advocates.

Sheldon Richman - 1/10/2005

"But why appeal to the Constitution at all when it has no bearing on the morality of the behavior in question?"

Aside from Roderick Long's reply, I would add that it's a way to get people thinking about the matter. By the way, Lysander Spooner wrote a whole book on the unconstitutionality of slavery even though he did not believe the Constitution was legitimate. Not only did he believe it, he also wanted to deny the slavery advocates the high ground.

Roderick T. Long - 1/10/2005

> Which people, specifically?

All the citizens of America.

> Who asked for this promise? When?

Does someone have to ask for it? Why? We're talking about a promise, not a contract.

> Upholding the Constitution necessarily
> means doing things that are morally
> forbidden.

Didn't I already cover that above? Upholding the Constitution involves doing some things that are mandatory, some that are optional, and some that are forbidden. The promise to do forbidden things is null and void; but why isn't the rest of the promise binding?

John Lopez - 1/10/2005

"But I think there is clearly a *promise* given to the American people..."

Which people, specifically? Who asked for this promise? When?

"...which (to the extent that what is promised is not itself morally forbidden)..."

Upholding the Constitution necessarily means doing things that are morally forbidden.

Roderick T. Long - 1/9/2005

Clarification: by "legally binding" in the above post I mean "*legitimately* legally binding."

Roderick T. Long - 1/9/2005

Spooner is talking about legally enforceable obligations, and he may be right on that subject (though I'm not entirely convinced). But I think there is clearly a *promise* given to the American people which (to the extent that what is promised is not itself morally forbidden) is *morally* binding, whether or not it is legally so.

Roderick T. Long - 1/9/2005

No. But consider three actions. A is morally obligatory, B is morally neutral, and C is morally forbidden. Suppose I promise to do each of them. Not only am I morally permitted, I am morally required to break my promise to do C. And I am not morally blameworthy for breaking it (except insofar as I'm morally blameworthy for making the promise in the first case). But in the case of B, although B was initially morally neutral, by promising to do B I've made B morally obligatory (barring any special reasons to the contrary), so now I am morally blameworthy if I don't do B. The principle in both cases is that we're obligated to keep our promises unless there's good reason not to.

What about A? A would be morally obligatory whether I promised to do it or not. I already have sufficient moral reason to do it. But when in addition I *promise* to do A, I acquire *additional* moral reason to do it. If I refrain from doing A, I violate *both* whatever moral rule requires A *and* the moral rule that says to keep my promises unless there's a good reason not to.

John Lopez - 1/9/2005

The Constitution isn't binding on anyone, nor are government oaths binding on anyone. Those oaths, as Spooner noted, are given to the winds. They haven't broken any promises because they haven't given their promise to anyone:

If I go upon Boston Common, and in the presence of a hundred thousand people, men, women and children, with whom I have no contract upon the subject, take an oath that I will enforce upon them the laws of Moses, of Lycurgus, of Solon, of Justinian, or of Alfred, that oath is, on general principles of law and reason, of no obligation. It is of no obligation, not merely because it is intrinsically a criminal one, but also because it is given to nobody, and consequently pledges my faith to nobody. It is merely given to the winds.

John T. Kennedy - 1/9/2005

Huh? Their oath obliges them to do things that are inherently wrong - would breaking their oath by declining to do such wrong compound any sin?

Roderick T. Long - 1/9/2005

Well, the President and Congress have taken an oath to abide by the Constitution. So not only are they doing something that's inherently wrong, they're breaking a promise in addition. That seems morally relevant, in that it compounds their sin.

John T. Kennedy - 1/9/2005

Sorry, I went too far in my previous comment, relying on faulty memory.

But why appeal to the Constitution at all when it has no bearing on the morality of the behavior in question?

Sheldon Richman - 1/9/2005

With all due respect, did you read the entire article? Permit me to quote myself:

"So let’s forget the Constitution and look at morality unadorned. By what standard is it permissible for government officials to take money from you in order to give it to someone else? Frédéric Bastiat, the great 19-century champion of freedom, rightly called that “legal plunder.” Could it be anything else?

"The principle does not change simply because the intended recipients are suffering. That is a matter for the owners of income. Generosity in the face of horrible misfortune is undoubtedly a virtue. Benevolence is a natural consequence of rational self-interest. But there is no proper government role here. Forced generosity and benevolence are contradictions in terms."

How could I be construed to believe that if the Constitution were changed, everything would be all right?

John T. Kennedy - 1/9/2005

Richman: "Wasn't that the point?"

I don't see how anyone could take that to be the point of your piece. Your entire argument would disappear if the Constitution said the government was entitled to so tax and spend - yet the tsunami aid in question would still be morally indefensible.

And as Charles Jonson points out, there's no reason in principle the Constitution can't be made to say that in short order. It can be made to say anything.

Your appeal to the Constitution is quite beside the point because it has nothing in principle to do with why this publicly funded tsunami aid is wrong.

Charles Johnson - 1/9/2005

Sheldon, I think Kennedy's point is that it would be illegitimate to seize people's money for tax-funded disaster relief even if it were authorized in the Constitution--if, for example, the Bushists suddenly became strict constructionists and rushed an amendment through the Congress and state legislatures allowing them to disburse the funds, that wouldn't change the moral or political case against tax-funded state-to-state transfers one bit. Ergo, the appeal to the Constitution seems out of place--since the transfer is illegitimate *whatever* the Constitution says, why point out its silence?

Max Swing - 1/9/2005

You are right, here Marina. Private Institutions have also a higher efficiency, as you can see in the fact that many hostile governments would rather let private organisations into their territory than foreign government aid. I think this is a clear example of the problematic inefficiency of government-sponsored Aid. (And I can understand those regimes)

Also, I have heard many news reports claiming that the first help came from private organisations and private helpers (perhaps affected by the tidal catastrophe), while the WHO and other big government-sponsored organisations sat in the middle of the air-fields doing some "organisation-work".. whatever that means in detail.

Sheldon Richman - 1/9/2005

Wasn't that the point?

John T. Kennedy - 1/9/2005

I think your pice is spoiled by your appeal to the Constitution, which could not make this public aid legitimate in any case.

William J. Stepp - 1/8/2005

A web search turned up a mention of Madison's signing of the (alleged) first federal disaster relief bill after the earthquakes along the New Madrid (Missouri) fault lines from Dec. 16, 1811 to March 12, 1812. The bill allowed people in the affected area to move to government-owned (libertarians would say -controlled) property in other areas.
Of course, government owns no land, so in effect the settlers must have been homesteading this property with Madison's official blessing, not that that was necessary.

Clearly it's absurd to call a land grant "relief" when the land is stolen by the government in the first place. Of course, the Bush junta's giving stolen tax money to disaster victims is morally and praxeologically on a par with a bank robber giving stolen loot to them. Actually, morally the former is worse for reasons Spooner pointed out in his highwayman analogy.

William J. Stepp - 1/8/2005

You mention Madison's veto of a disaster relief bill, but I read recently, I think in the NY Times, that the first federal relief in U.S. history was provided in 1815 for victims of the great Missouri earthquake that had occurred three years earlier. I have not been able to confirm this however.
Cleveland's statement is one of the all time greats. It's quoted by Corwin in one of his books.

William Marina - 1/8/2005

Dear Sheldon,
An excellent piece on aid from the Imperial Leviathan. If the State had not taken over so many facets of American life, I believe the American people and our voluntary agencies and groups could have given, and are to some extent giving, much more effectively than can and will government.