The Pervasive Duty to Rescue; D. Kochan

The private law of torts illustrates one origin of the prohibition on coerced benevo lence and is thereby helpful in understanding the injustice of redistribution. The rule ac cepted in the common law of torts holds that no one can be legallyobligated to provide any level of help to another in need. Tort law expressly indicates that an individual cannot be forced to give up a portion of his liberty to benefit another, no matter how little the cost or how great the benefit. This protection against forced benevolence is a logical ex~ Mr. Kochan is an Adjunct Scholar with The Macki nac Center for Public Policy, a research and educa tional organization headquartered in Midland, Mich igan. tension from the concept of negative liberty understood at the Founding and embraced in the Constitution: law exists to protect against intrusions on liberty and not as a means for compelling action. James Madison, the father of the Consti tution, was emphatic in his belief that the Constitution fails to grant the government power to redistribute resources for welfare programs of any kind. In an address to the floor of the House in 1794,Madison attacked a welfare bill stating that he could not "un dertake to lay [his]finger on that article of the Federal Constitution which granted a right to Congress of expending, upon objects of be nevolence, the money of their constituents."1 This statement reflects the enumerated pow ers doctrine, holding that the government cannot act outside of a specificgranted power.

The Founders did not believe that Congres sional power was plenary, as it is often be lieved to be today. Given Madison's statement, it is impossible to believe that the Founders contemplated that Congress should have the power to compel assistance from one citizen to aid another. In private law, C never has a claim to take A's property merely because he is in want of it due to his destitution. Such actions are rightly called theft and therefore outlawed. There is no reason to believe that the insti tution of government somehow transforms this principle and grants C (or others pur porting to act on his behalf) the power to employ the state to these ends. Thomas Jefferson's thoughts on the proper role of government bear repeating here: "A 344 wise and frugal government, which shall re strain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government ... " [emphasis added]. Taxation to support government welfare programs is clearly at odds with our third president's philosophy.

Conscience and Constitution Noted constitutional scholar and Supreme Court Justice Joseph Story wrote that "[A] man has a perfect right to life, to his personal liberty, and to his property; and he may by force assert and vindicate those rights against every aggressor. But he has but an imperfect, right to ... charity ... even if he is truly deserving it ... " where these imperfect rights "may not be asserted by force of law, but are obligatory only on the conscience of parties."z Ironically enough, some key supporters of the New Deal also recognized that the emerg ing welfare state was unconstitutional. In 1935, Franklin Roosevelt wrote to the chair man of the House Ways and Means Commit tee saying, "I hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legisla tion.,,3 In 1968, Rexford Guy Tugwell, a principal architect of the New Deal, observed, "To the extent that these [New Deal policies] developed, they were tortured interpretations of a document [i.e., the Constitution] in tended to prevent them.,,4 Social Security, unemployment benefits, corporate subsidies, farm subsidies, public housing, and countless other manifestations of the welfare state are all coerced transfers which impose an affirmative duty to "rescue"

upon us. (Many of the beneficiaries, of course, are not in peril or even the least bit needy, but have learned to play the political game well enough to collect large amounts from the government.) This not only adversely affects individual liberty, but also increases the num ber of imperfect rescues. Government pro grams create dependency, create flawed in centives, and are too broad and generalized to 345 Joseph Story (1779-1845) target resources effectively. They hurt more than they help. In tort law, an individual can be held liable for a failed rescue when his heroic attempts are beyond his capacity and actually do harm to the one in need of assistance.5 The government, however, is not liable for the harm its "rescue" programs do. Only private charity can meet the require ments of those truly in need of assistance. Private funds can be targeted toward those in actual need. Moreover, private organiza tions are smaller and more localized, allowing them to address the specific problems that needy people have and apply specific solu tions, instead of merely sending out imper sonal checks drawn against government ac counts. Finally, private charities must be more accountable, for they do not have the coercive power of taxation available to ensure contin ued funding.

Government programs, unfortunately, have coopted this superior private approach. Many people believe that they need not get involved because of a flawed perception that the government is doing the job. Moreover, many cannot afford to assist privately, given 346 THE FREEMAN • JUNE 1997 the drain on their budget from taxation. In tort law, a person can be held liable for preventing a needy individual from getting more effectiveassistance.6 That, essentially,is what the government does by its discourage ment of private charity, but again, the gov ernment is not liable for the harm it does. The rules of the common law, developed over many centuries, usually exhibit a pro found wisdom in the ordering of human affairs.The rule against compulsory rescues is such a rule. If you were obligated to help everyone in need, the demands on your time and money would be almost endless. The only solution to the problem that protects the individual's freedom of action and property rights is the one adopted by the common law: there is no legal duty to rescue. There may be a moral duty, but the law leaves that to the individual and his conscience. 0 1. The Cato Handbook for Congress: l04th Congress (Wash ington, D.C.: Cato Institute, 1995), p. 19.

2. Joseph Story, Natural Law, unsigned article in Encyclopedia Americana, reprinted as an appendix in James McClellan, Joseph Story and the American Constitution (Norman, Okla.: University of Oklahoma Press, 1990 [1971D. 3. Cato Handbook, p. 19. 4. Ibid. 5. See, e.g., Farwell v. Keaton, 396 Mich. 281, 240 N.W. 2d 217 (1976). 6. See, e.g., Lacey v. U.S., 98 F.Supp. 219, 220 (D.Miss. 1951). A Moral Basis for Liberty BY ROBERT A. SIRICO Introduction by Edmund A. Opitz T he political edifice of liberty requires a firm moral foundation, but the moral terminology of contemporary political debate is often secretly at war with liberty. This represents more than linguistic confusion; it is a danger to the proper exercise of virtue in the context of freedom. While liber ty's historical roots are found in Jewish and Christian religions, the moral prin ciples of both are overlooked in modern discussion of such basic institutions as entrepreneurship and the welfare state. Modern discussion and evaluation of the two institutions are in need of radical correction. Advocates of capital ism and economic liberty can and should assume the moral high ground.

ISBN 1-57246-059-8 • 72 pages • paperback $3.95 Published by The Foundation for Economic Education, Inc. Irvington-on-Hudson, NY 10533 To order, call (800) 452-3518orfax (914) 591-8910 THEFREEMAN IDEAS ON LIBERTY The Mont PelerinSociety's 50th Anniversary by Greg Kaza T his year marks the 50th anniversary of the founding of the Mont Pelerin Society,one of this century's most important groups of free-market intellectuals. The world was a quite different place when 36 free-market thinkers gathered in April 1947 at the Hotel Park at Mont Pelerin, near Vevey, Switzerland.1 The Soviet Union, the world's leading Marxist-Leninist state, had erected an Iron Curtain across Eastern Eu rope. China, engulfed in a civilwar, was on the verge of a communist takeover. In Western Europe, democratic socialist parties formed ruling coalitions; the electoral strength of the Communist Party reached double digits in several countries. The United States was awash in liberal Keynesianism-sound money had been abandoned for the Bretton Woods Agreement, which ushered in the age of inflation. The idea of "scientific" government economic planning and regulation was in fashion with most intellectuals.