Whenever Mom told my sister and me to share the last piece of pie or cake, or divide a pot of oatmeal that we both hated, she'd tell one of us to do the cutting or spooning and the other had the first choice. That rule gave whoever was the cutter or spooner uncanny incentive to be fair because if, for example, I cut the cake unevenly, I'd lose because my sister had first choice and would choose the larger piece of cake (or the smaller bowl of oatmeal). Mom's rule should be the basis for all societal rules. Good laws (rules) are those written as if our worst enemy had the power to enforce them.
Let's apply this idea to laws about speech and ask: if we seek fairness, what kind of laws should there be about speech? How about a law that says people are permitted to speak freely so long as they don't say something that offends another? Or, how about a law that mandates that the nation's official language be English? Some people might agree pointing out they would promote sensitivity toward the feelings of others and strengthen the common culture. But what if your worst enemies win control of Congress and the White House? Then, if you said to a young lady, "Those jeans are really fitting you well.", you might be fined or jailed for speech that the majority power deems offensive. If you're for making English the official language, a future majority might make the official language Spanish or French.
We don't have a lot to worry about speech because the Framers anticipated Mom's rule saying: "Congress shall make no law . . . abridging the freedom of speech." If there's respect for that rule, even if our worst enemies take over Congress and the White House, no sweat. There are a bunch of Mom-like rules in our Bill Rights containing distrustful and highly negative language like: "shall not be infringed", "shall not be violated", "shall not be required", "nor be deprived." Mom's rules would never be seen in heaven; they'd be an insulting insinuation that God cannot be trusted with power and that God is not a just God. However, if you are unfortunate enough to end up in the other place, you'd surely would want Mom's rules because you can't trust the Devil to do right.
We Americans have forgotten the warnings of James Madison and Thomas Jefferson about the tyranny of majority. We think that because there's a majority vote that fact alone confers legitimacy on laws passed by Congress. If you think a majority consensus is fair, how would you like enactment of the following law: Congress shall have the power to ban, regulate or tax out of existence any product found to have no nutritional necessity but is costly to the nation's health care system?
While most Americans support what Congress is now doing to cigarette smokers, I'd be willing to bet my bank account they wouldn't support those actions as a general rule. For example, there's absolutely no nutritional reason for adding salt to food, consuming beer, whiskey, butter, potato chips and candy but consumption of these goods raise health care costs. Why would Americans support cigarette control and not support a general rule allowing Congress to ban or control consumption of other products deemed harmful to our health? Most of the answer is cigarettes are the other guy's vice and a majority has the power to be arbitrary. For me, I'll take Mom's rule any day until I have the power to impose my values on others.
Walter E. Williams
June 2, 1998
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