Archive for the ‘Law’ Category

The Justice of Restricting Welfare Spending

This week, the Boston Herald revealed that Massachusetts welfare recipients have absolutely no restrictions on what they spend their government aid on:

Bay State welfare recipients can play the slots, pick up a six-pack of beer or nab a flat-screen plasma TV under loosey-goosey Bay State restrictions that allow those on the dole to treat taxpayers’ wallets as their own personal ATM.

Recipients of the Department of Transitional Assistance programs get Electronic Benefits Transfer cards that work like regular debit cards, allowing them to withdraw cash from ATMs and use it for whatever they want – all with scant oversight by the state.

Two days before the Herald revealed this, NY Mayor Michael Bloomberg sought federal permission to restrict the almost 2 million New York City food stamp recipients from using government-sponsored food stamps to buy soda and other sugary beverages. Bloomberg’s motivation is part of an overall anti-obesity campaign after a failed attempt to impose a “fat tax” on sodas (a move which everydaythomist supports). According to the NYTimes,

Public health experts greeted Mr. Bloomberg’s proposal cautiously. George Hacker, senior policy adviser for the health promotion project of the Center for Science in the Public Interest, said a more equitable approach might be to use educational campaigns to dissuade food-stamp users from buying sugared drinks.

“The world would be better, I think, if people limited their purchases of sugared beverages,” Mr. Hacker said. “However, there are a great many ethical reasons to consider why one would not want to stigmatize people on food stamps.”

The fear of stigmatizing welfare and food stamp recipients is doubtless one of the reasons that Massachusetts and other states place no limitations on how government aid may be spent (the Herald also revealed that California welfare recipients spent $1.8 million in government aid on casinos). However, Bloomberg’s effort to restrict food stamp expenditure on sodas (which have no nutritional value) reveals that placing restrictions on how food stamps may be used can also be an act of justice.

Aquinas sees an important role for human laws in society, but his understanding of the role of law is contextualized within his understanding of virtue:

Man has a natural aptitude for virtue; but the perfection of virtue must be acquired by man by means of some kind of training. Thus we observe that man is helped by industry in his necessities, for instance, in food and clothing. Certain beginnings of these he has from nature, viz. his reason and his hands; but he has not the full complement, as other animals have, to whom nature has given sufficiency of clothing and food. Now it is difficult to see how man could suffice for himself in the matter of this training: since the perfection of virtue consists chiefly in withdrawing man from undue pleasures, to which above all man is inclined, and especially the young, who are more capable of being trained. Consequently a man needs to receive this training from another, whereby to arrive at theperfection of virtue. And as to those young people who are inclined to acts of virtue, by their good natural disposition, or by custom, or rather by the gift of God, paternal training suffices, which is by admonitions. But since some are found to be depraved, and prone to vice, and not easily amenable to words, it was necessary for such to be restrained from evil by force and fear, in order that, at least, they might desist from evil-doing, and leave others in peace, and that they themselves, by being habituated in this way, might be brought to do willingly what hitherto they did fromfear, and thus become virtuous. Now this kind of training, which compels through fear of punishment, is the discipline of laws (I-II, Q. 95, art.1)

This is a long quote but it essentially means that the primary purpose of law is to restrain people from those vicious acts they are inclined to commit which prevent them from developing the virtue necessary to live a good life. Human law is rooted in the natural law, but, unlike the natural law, human law is not universal, but varies from group to group: “The general principles of the natural law cannot be applied to all men in the same way on account of the great variety of human affairs: and hence arises the diversity of positive laws among various people” (I-II, Q. 95, art. 2, ad. 3). Moreover, citing Isidore, Aquinas affirms that human law should be “just, possible to nature, according to the customs of the country, and adapted to place and time” in order to foster discipline (I-II, Q. 95, art. 3, c.).

With this in mind, we can look at restricting welfare expenditure as an appropriate use of human law. Those who are on welfare and food stamps are, for various reasons (many of them good ones) dependent on the government in order to manage economically. Ideally, the goal (or telos) of welfare legislation is to allow economically disadvantaged individuals to flourish through the development of virtue. Unrestricted welfare aid may seem merciful in that it strives to protect such individuals from discrimination, but it also fails to provide the restrictions necessary for the development of virtue. By restricting food stamp and welfare expenditure for items like cigarettes, alcohol, lottery tickets, and, yes, even sodas, the poor are taught through coercive legal measures, how to act in such ways that are conducive to the development of the virtues necessary to flourish, virtues like moderation in consumption, prudence in purchasing, and health in eating.

This may seem paternalistic and discriminatory, and, in a way, it is. But paternalism and discrimination are not necessarily counterproductive to the goals of justice, at least from a Thomistic perspective. Justice demands that each is given what is due to him or her, and if we are going to say that justice demands government expenditure for welfare and food stamps (which I think it does), then it is also perfectly reasonable and just to place restrictions on how such aid may be used in order to accomplish the just goals which justify its very existence. When people use welfare money on lottery tickets and cigarettes and alcohol, they are not becoming more virtuous; they are becoming dependent on nicotine, potentially abusive of alcohol, imprudent consumers, and more dependent on the government for their subsistence.

Restricting food stamp expenditure on soda may seem a step too far. However, the goal (telos) of food stamp money is to ensure that poorer individuals and families have access to the nutrition necessary to flourish. Soda is completely contrary to this telos. Sodas provide no nutritional value, and worse, contribute to obesity-related health problems that tax the healthcare system and endanger lives. Bloomberg’s proposal is discrimination, but it is a just discrimination which will hopefully receive the support the “fat tax” on sodas failed to get.


Cyberbullying and the Limits of Law

A few days ago, Tyler Clementi, a freshman at Rutgers University, jumped off the George Washington Bridge after his roommate posted a video of him making out with another male student. The roommate, Dharun Ravi, and another classmate have been charged with two accounts of invasion of privacy for using a secretly-placed webcam to view and transmit a live image, without Clementi’s consent. The maximum charge is five years.

The Clementi case follows close on the heels of a related case involving several Massachusetts high school students who bullied 15-year old Phoebe Prince both physically and over Facebook and other social networking sites, allegedly pushing Prince to hang herself. For many young students who die, their Facebook page becomes a memorial for friends and family to post messages and keep the memory of the deceased alive, but with Prince, bullies continued to post disparaging messages on her wall even after she died. Eventually, her Facebook wall had to be disabled.

Massachusetts lawmakers hurried to draft anti-bullying legislation as a result of this incident, and the NYTimes asks in this week’s “Room for Debate” whether the Clementi case too demands tougher laws for those who commit online acts of bullying. Laurie Levenson, the first contributor, raises an important point in answering the question of anti-bullying legislation:

Cyberbullying is growing and our legal system does not seem ready for it. With legitimate concerns about the First Amendment on one side, and equally legitimate concerns about the dangers of such conduct on the other, prosecutors are often left to shoehorn this new wave of behavior into laws created long before there was an Internet.

Because it is difficult to draft a law that allows the full range of free speech, but also serves to deter the type of behavior recently in the news, the government is left to use statutes that don’t quite fit, like false statements to Internet service providers or invasion of privacy or civil rights violations. All of these are weak substitutes for crimes that really involve psychological warfare.

Bullying in general, and cyberbullying in particular, are clearly heinous acts with potentially devastating consequences. But is the criminal justice solution the right place to turn? Levenson goes on to note that bullying is an antisocial behavior that is learned and practiced. Better laws are not necessarily the solution to antisocial behavior.

Another contributor, John Palfrey, also questions whether the criminal justice system provides an adequate solution to the problem of bullying. Turning to the social sciences, Palfrey writes,

Cyberbullying is just bullying that happens to be mediated through digital technologies. There’s nothing fundamentally different about it.

What we know from research is that the incidence of kids harming one another psychologically in ways that are mediated by new technologies is going up over time. But those same data do not tell us that the overall incidence of bullying is going up, nor that it is getting worse. We also can’t say that kids are meaner today than they were in the past.

I want to suggest that the problem of cyberbullying points to the limit of law-based approach to solving some of our moral problems. There are a number of reasons that laws are insufficient to address issues like cyberbullying. First of all, laws must be crafted incredibly specifically to ensure that they actually achieve justice. For Aquinas, laws were mutable rules which were highly dependent on particular circumstances. Second, Aquinas recognizes the limit of law in getting rid of every evil. By getting rid of certain evils, we also get rid of certain sometimes greater goods. For example, stricter laws on cyberbullying may get rid of some cases of evil, but they may also limit free speech, which in a liberal society is considered a great good. In light of these two points is a third point: the best laws are those which are absolutely necessary for the state to achieve its ends. Other issues of interpersonal regulation not necessary for the state to achieve its ends better addressed through custom and the development of moral character.

Law and virtue work together to create good citizens. Whereas law is an external restraint on a person’s actions, virtue is an internal disposition of the person to act in ways conducive to their overall flourishing and the common good. Virtue is developed through practice. That is, by acting in certain just ways, one learns justice. Law and virtue are mutually compatible and mutually necessary because good laws require virtuous lawmakers, but also, good citizens cannot be made simply through good laws. People must be trained through action and custom (consuetudo) to be good.

The case of cyberbullying strikes me as an opportunity to reflect on the necessity of virtue in our society to solve this problem, rather than simply the creation of new laws. After Phoebe Prince took her life, her high school and others created programs to teach people the danger of online bullying. Schools must continue to develop strategies to teach young people about the nature and dangers of online bullying. They must learn courtesy and respect in their homes and classrooms, and courage to stand up when a classmate is being abused.

It is also an opportunity to look at the moral exemplars offered to young people in our society. The popular television show GLEE, for example, frequently makes light of bullying if not subliminally glorifying it. When young people watch a show like GLEE, they are learning not only how to bully, but also that bullying in general does not have any negative consequences. They are learning that bullying, at least in some sense, is cool.

No amount of lawmaking can reverse the effect of custom on behavior. Some legislative action may be necessary for extreme cases like this, but the general problem will remain unless there is a similar effort to change the character of those young people who become the bullies.

Freedom of Speech Debates Prompt Us to Question the Nature of Freedom

The Supreme Court has been wrestling with a lot of First Amendment questions on the nature of free speech. In January, the court ruled 5-4 in the case Citizens United v. Federal Election Commission, No. 08-205 that the government may not ban political spending by corporations in candidate elections on the basis that the government had no right to regulate political speech.

Yesterday, the Supreme Court considered the case of the Christian Legal Society at the University of California’s Hastings College of the Law which wants recognition as an official campus organization with school financing and benefits whilst maintaining its first amendment right to ban “unrepentant participation in or advocacy of a sexually immoral lifestyle,” including “all act of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery and homosexual conduct.” In a similar vein, next week the court will consider Dove v. Reed, No. 09-559 on the question of whether Washington State’s open records law violates the free speech rights of people who signed ballot petitions, especially against gay marriage, by requiring their names to be made public.

The case the court considered today was particularly surprising, ruling 8-1 to strike down a federal ban on the creation and distribution of videos depicting animal violence and abuse.

The case arose from the prosecution of Robert J. Stevens, an author and small-time film producer who presented himself as an authority on pit bulls. He did not participate in dogfights, but he did compile and sell videotapes showing the fights, and he received a 37-month sentence under a 1999 federal law that bans trafficking in “depictions of animal cruelty.”

Dogfighting and other forms of animal cruelty have long been illegal in all 50 states. The law applied not to the underlying activity, but to recordings of “conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed.” It did not matter whether the conduct was legal when and where it occurred; under the law, what mattered was whether the conduct would have been illegal where the recording was sold.

The government argued that such depictions were of such minimal social worth that they should receive no First Amendment protection at all. Chief Justice Roberts roundly rejected that assertion, saying that “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.”

Roberts was asked to compare this case with the case of trafficking child pornography, which the court ruled in 1982 deserved no First Amendment protection. Roberts declared that child pornography is distinct because the market for it is “intrinsically related to the underlying abuse.”

Besides the fact that videos of animal abuse also seem “intrinsically related to the underlying abuse,” these cases of first amendment freedoms prompt us to question what we mean by “freedom.” Servais Pinckars, the recently deceased Dominican moral theologian who helped bring the Bible back to Catholic ethics, provides a useful distinction for considering this question. Pinckaers distinguishes between “freedom of indifference,” which is the freedom to choose generally between two contraries, with the “freedom for excellence.” This latter form of freedom is the capacity and power to choose wisely, to choose those things which are both consistent with truth and goodness and which are conducive to the happiness–or eudaimonia–of human beings. Freedom of indifference is, in a sense, the power to do whatever you want. It is freedom for the sake of freedom, freedom which is an end in itself. Freedom for excellence, however, is a teleological notion of freedom in which freedom has a purpose (a telos) beyond its mere exercise. We are free for the sake of something.

Accordingly, law is inextricably linked with freedom. According to a “freedom of indifference” mindset, the law is in place to keep any unnecessary barriers away from a person having the ability to do whatever they want. This is the idea that “as long as I am not hurting anybody, what I do is none of the government’s business.” However, in a “freedom for excellence” mindset, law is a pedagogue in freedom. That is, the law teaches us how to be free. Good laws help human beings achieve the good which they naturally desire by pointing to the telos–human flourishing or eudaimonia–in which all choice ought to be oriented.

The law ought to point us to the good, not just give us the maximum space in which we may do whatever we want. Accordingly, when we look at laws like this one which the Supreme Court struck down today, we ought to ask ourselves what the purpose of the law is. In this case, it seems that the purpose of the law against trafficking videos of animal abuse is to prevent people from indulging in products that in no way contribute to human flourishing. Watching videos of abuse and violence towards animals is in no way an expression of freedom understood teleologically. There is no good goal (telos) of the production and marketing of such films, and to claim that a person has the right to engage in such actions as part of her “first amendment freedom” is yet another illustration that the Supreme Court’s notion of freedom does little to advance either the individual or societal human good.