Who Owns You?

The issue comes down to whether the individual is viewed as a private person or as public property: the former has no obligation to the community to be or stay healthy; the latter does.

Virtually everything the Founding Fathers sought to achieve by separating church and state has been undone by the apostles of modern medicine, whose zeal for creating a therapeutic state has remained unopposed by politicians, priests, professionals, journalists, civil libertarians, and the public.

–Thomas Szasz

Many people have legitimate complaints against the Food and Drug Administration. For example, during its long history, the FDA has delayed the marketing of badly needed drugs and medical devices, leading to unnecessary pain and death. Excessive bureaucratic requirements for testing have made drugs more expensive than they would have been otherwise. And, as I’ve detailed elsewhere, its regulation of tobacco and nicotine interferes with people’s enjoyment of those products.

I want to suggest, however, such isolated complaints fail to go to the heart of the matter. The problem is not this or that regulation. Nor is the problem even the FDA itself. The root problem is the government’s claim to jurisdiction over so-called “public health.” In the United States, once Congress assumed this power and created myriad regulatory agencies to exercise it, the door was opened to the kinds of mischief that Thomas Szasz (1920-2012) placed under the label “the Therapeutic State.” All manner of interference with individual freedom can be and has been presented in the name of safeguarding public health. It’s a Pandora’s box.

The ultimate question is: who owns you? The answer will determine who is to be in charge of health.

The courts have routinely affirmed that the government has a “substantial interest” in the “health, safety, and welfare of its citizens.” In other words, citizens are public property. It’s time that this currently uncontroversial premise was questioned.

The modern state’s “substantial interest” in the physical and mental welfare of its citizens is an echo of the pre-liberal era, when the sovereign was seen in part as the father and custodian of the physical and spiritual welfare of his subjects. Paternalism served the interests of the sovereign, of course: he needed healthy taxpayers and soldiers. But the relationship was bigger than that.

The liberal revolutions of the 18th century did not fully push aside that model of governance, and many vestiges of the old regime have remained. Whatever the rationalization, whatever the ostensible basis of authority, the state was (and is) about taboos and social control. Of course, the form changed — church and state have been more or less separated — but in many ways the substance has been unchanged. The power of state-related clergymen was succeeded by the power of state-related medical men (including psychiatrists) and putative scientists. As the theological state receded, the therapeutic state advanced. Illness (including so-called mental illness) came to play the role in public policy that sin once played. Health stands in public life where salvation once stood. Treatment is the modern way of redemption. The burning of witches was succeeded by, for example, the confinement in madhouses of people who had committed no crimes. Electroshock and lobotomy replaced the rack and thumbscrew. The pattern repeated itself in the United States; state governments involved themselves in public health from an early date, followed by the federal government. Drug dealers and users became the modern scapegoats who had to be cast out (imprisoned) to protect the public’s health, although drugs entered people’s bodies by volitional acts. (On the resemblance between the theological and therapeutic states, see the works of Thomas Szasz, a psychiatrist who made a career demonstrating the unappreciated parallels. Links to many articles are here.)

In the modern age, Szasz wrote, “To resolve human problems [e.g., “bad habits”], all we need to do is define them as the symptoms of diseases and, presto, they become maladies remediable by medical measures” — more precisely, political-medical measures. Doctors, having been deputized by the state, wield power they could have not obtained otherwise. (The head of the FDA, Scott Gottlieb, is a physician.) Thus we have (to use another phrase from Szasz, “the medicalization of everyday life.” For example, any disapproved behavior that anyone engages in repeatedly is branded an “addiction,” which is in turn defined as a disease, as though calling behavior, which has reasons not causes, a disease were not a category mistake. Never mind that metaphorical, or mythical, diseases are not real diseases. (Are substances or people habit-forming?) To say that an ascribed disease is a myth is not to deny the behavior or even to deny that the behavior may a problem for either the actor or the people around him. As the philosopher Gilbert Ryle wrote, “A myth is, of course, not a fairy story. It is the presentation of facts belonging to one category in the idioms belonging to another. To explode a myth is accordingly not to deny the facts but to re-allocate them.”)

It is in this light that we should view the FDA and other government medical and scientific entities. They are part of a massive apparatus of social control, making their personnel agents of social control, not truth-seeking. Whether the FDA, for example, is a friend of industry or an adversary (at different times it’s been both), the public is ill-served precisely because the right of individual self-determination in a free market, including tort- and fraud-redress procedures, is undermined by prohibitions and restrictions. It is also ill-served by the monopolistic effects of centralized political authority over science and medicine. (On the FDA’s growth, see this.) Free competition is the universal solvent because facts emerge through rivalrous activity, both economic and intellectual.

Many people don’t see things that way, of course, and so government has increasingly controlled people’s choices with respect to health and science. On the basis of the fiction that the free market has failed in these realms — when has it actually been tried? — politicians, bureaucrats, and deputized practitioners have gained power. A gain in political power, Albert Jay Nock taught us, necessarily means a loss in “social power,” that is, self-control by individuals and their voluntary associations (including families). If self-control is denied in one area of life, we should not be surprised to see it fade from other areas of life. Today, the battle cry is “Medicare for all!” But if “the public” (the state) is to pay for everyone’s medical care collectively, won’t the public’s putative representatives want to impose restrictions on individuals’ risky behavior if for no other reason than to minimize the hit to the government’s budget? What then becomes of what’s left of individual freedom?

The coercion exercised by the government-medical complex is routinely defended as being for people’s own good: in this view, they are compelled to do only what they really wish to do but cannot because of addiction, mental illness, etc. To Szasz, this is “the authoritarian, religious-paternalistic outlook on life,” to which he responded: “I maintain that the only means we possess for ascertaining that a man wants to [for example] stop smoking more than he wants to enjoy smoking is by observing whether he stops or continues to smoke. Moreover, it is irresponsible for moral theorists to ignore that coercive sanctions aimed at protecting people from themselves are not only unenforceable but create black markets and horrifying legal abuse.”

Szasz added: “The issue comes down to whether the individual is viewed as a private person or as public property: the former has no obligation to the community to be or stay healthy; the latter does.”

We know how the “public health” lobby views the matter. When it panics over how much smokers “cost the economy” in lost productivity (through sick days and shorter lives), the lobby is proclaiming that Americans are indeed public property. How dare they enjoy themselves and risk their health at the expense of the economy, the people, the nation? (The Nazis and Bolsheviks followed this idea all the way.) In contrast, quaint classical liberals believe “the economy” — that is, the institutional framework for free exchange — exists to serve people. When the “public health” lobby advocates coercion for a person’s own good, in reality it does not speak of treatment and cure but of assault and battery — and perhaps torture. A medical relationship without consent is like a sexual relationship without consent. But few people understand that.

Perhaps sensing the flaw in the case for coercion based on preventing harm to self, much medical coercion is offered in the name of protecting others. There is a grain of truth here, of course. People can carry deadly communicable diseases. (Whether the state’s centralized bureaucracy is needed or competent to deal with this is another question.) But as the public-choice thinkers point out, state officials won’t be satisfied with such a narrow mission as protecting people from such diseases. Public-health jobs will tend to attract people dedicated to reforming other people’s “vices.” Inevitably, they will push the boundaries to acquire more power, money, staff, and prestige — all dedicated to breaking our “bad habits.” The alleged threat from second-hand smoke is in no way analogous to the immediate threat from a communicable disease. The former can easily be dealt with through contract and other voluntary arrangements but that doesn’t stop the public-health zealots from working to outlaw smoking in bars, restaurants, and even tobacco shops.

But what about the children? In a free society, families are responsible for raising children to be autonomous adults. Of course, this does not always happen, part of the reason being the government’s own obstacles, such as rotten schools for low-income kids. At any rate, history makes clear that government crusades, say to keep adolescents from doing “adult” things — such as drinking, smoking, and now vaping — only adds to their allure and has horrendous unintended consequences. Fruit is harder to resist when it is forbidden. Meanwhile, adults find themselves harassed — in the name of protecting the children — as they go about enjoying themselves.

Would life be perfect if “public health” were left to free and consenting adults in the free market? No, of course not. But a real-world free society should not be compared to an unreal and unrealizable utopia of all-wise, all-knowing, and all-good “public servants” who have only your health and welfare in mind. Rather, it should be compared to the real world of fallible, morally flawed, egotistical, self-serving, and centralized politicians and bureaucrats whose worldview is one where they give orders and you obey. Markets — which is to say, people in both profit-seeking and non-profit capacities — are capable of producing reliable consumer information and guidance, not to mention certifying the quality of products. They do it every day. Governments, after all, are comprised of nothing but human beings.

“Those who would give up essential liberty,” Benjamin Franklin might have said, “to purchase a little temporary health, deserve neither liberty nor health.”

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Walter Block: Defending the Undefendable (52m)

This episode features a lecture by economics professor and Austro-libertarian Walter Block from 2016 about his two books which present defenses of some of society’s seemingly worst actors. Purchase books by Walter Block on Amazon here.

Listen To This Episode (52m, mp3, 64kbps)

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In the Grain

Nobody asked but …

As has been made clear by countless libertarian sages, there are only two classes — the first seeks freedom and the second wants to intervene in that search for freedom.  I have been listening to an old set of podcasts from the Mises Institute’s The Libertarian Tradition, presented by Jeff Riggenbach. In one episode, Jeff points out that European civilization in the North American new world was founded by two distinct types of adventurer, the first sought freedom from the old order, while the second sought to impose a new order.  We Americans, as a people have been in fundamental conflict ever since.  Riggenbach says it is the instance of individualists versus the zealots.  Individualists make their own goals, take their own actions, and accept all responsibility for the consequences of those actions.  Zealots want to dictate your goals, command your actions, blame you for consequences, and blur the lines of responsibility.

Throughout the history of society, there have been struggles for the collectivization of individualists.  But in the new land that would become the USA, the battle lines were far more clearly drawn among those who would colonize America, those who would seek freedom according to individual codes against those who would create new empires modeled upon the old empires.

A libertarian/voluntaryist/individualist/anarchist always looks for the simplest rule of thumb by which to gauge the self’s deeds with regard to consistency of principle.  Let me suggest the question, am I doing a thing that is my business, or am I doing a thing that will shape somebody else’s business?

— Kilgore Forelle

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We Wanted Tech

“We wanted workers, but we got people instead.”  This line from Max Frisch didn’t just give George Borjas the title of his most recent book.  At last Friday’s immigration conference in St. Cloud, Borjas declared it his all-time favorite immigration epiphany.  The point, he explained, is that immigrants aren’t just machines that produce stuff; they have broad social effects on our culture, politics, budget, and beyond.

Borjas is right, of course.  In fact, he doesn’t go far enough.  After all, even machines aren’t just machines that produce stuff.  They too have broad social effects on our culture, politics, budget, and beyond.  If you look closely at any major technological development, you can justly say, “We wanted tech, but we changed society instead.”

Consider cellphones.  When they were first introduced, you might picture them as more convenient phonebooths.  But they’ve revolutionized not only our society, but our psychology.  Many human beings now interact with their phones more than they interact with fellow human beings; go to any public place and you will see this to be true.  Even when we are talking to fellow human beings, cellphones have changed the tone and tenor of our conversations.  When I casually chat with my friends, for example, we often fact check each others’ assertions.  And cellphones are crucial for social media, which has dramatically swayed not only public discourse, but elections and policy.  Without Twitter, would Donald Trump’s candidacy even have been able to get off the ground?

When driverless cars come, they’ll disrupt our whole society again.  Commuting time will plausibly skyrocket, especially in high-rent areas.  If you can relax – or even sleep – in your car, why pay $1M for a tiny apartment downtown?  Indeed, once you get rid of the driver’s seat, we’ll probably turn cars into small motorhomes, so “living out of your car” could become an alternative lifestyle rather than a tale of woe.  And what will happen to all the truck drivers, taxi drivers, Uber drivers, and delivery drivers?

Still not convinced?  I trust you’ll admit that nuclear technology did more to the world than slash electric bills.

Verily, we wanted tech, but we changed society instead.

How should you react to this truism?  You could say, “Duh, everybody knows this already.”  That’s my knee-jerk reaction to Frisch’s quote, too.  But both “duhs” are too dismissive.  “Obvious once you think about it”≠”Obvious.”

What else is there to say?

1. You could retreat to agnosticism.  “Well, there are direct economic benefits, plus an array of intangible social effects.  We don’t know how to measure these intangibles; we don’t even know if they’re good or bad.”  This is basically what Borjas said about immigration in his Friday talk.  There’s no reason we couldn’t generalize it.

Reaction: Philosophically, agnosticism of any kind is incoherent sophistry.  We always have some information.  We can and should combine this information with common sense to form reasonable guesses about whatever question is on our minds.  Crucially, “information” includes psychological evidence about the errors to which the human mind is prone.  And one of the best ways to keep your guesses reasonable is openness to bets.

2. You could start by measuring the direct benefits, then see if any of the broader social negatives are plausibly in the same ballpark.  If not, the standard conclusion still goes through despite the complexity of the world.

Reaction: Once you factor in the value of time, this is typically the best approach for laymen.  It’s a quick way to resolve a wide range of policy disputes, especially if you embrace some version of weak deontology rather than consequentialism.

3. You could try a lot harder to study the measurement of so-called “intangibles.”  This might require a massive research program to fill in the enormous gaps in our knowledge.  Or perhaps if you play around on Google Scholar, you’ll discover that many researchers have already measured the stuff you imagine “no one knows.”

Reaction: This is the best approach for experts.  If you do good work and/or publicize it, you also help laymen reach the truth with modest mental effort.  So earn your paycheck!

Whatever you conclude, know that immigration is nothing special.  Everything has broader social effects.  These complexities are no reason to defer to popular prejudice, which is what I suspect Borjas hopes we’ll do.  Instead, these complexities are a reason to think broader and work harder to get the best answers we can.

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The Socialist Century (-ies?)

Looking back at 20th Century “world leaders” [sic] such as the domestic enemies Woodrow Wilson, FDR, and LBJ, and foreign thugs like Stalin, Hitler, Churchill, and all the rest, it seems socialism was all the rage– even when called something else.

So many “common people” also fell for the socialism lie and thought envy was a great thing to rally around and use as a foundation for a “society”. Socialism was everywhere, and we are still suffering the effects.

The 20th Century should be known as the Socialist Century.

My hope would be that it would be a singular mistake, not repeated in the 21st Century. But I’m not optimistic. Judging by current trends, we may be entering Socialist Century 2.0. And it may end up being even worse than the previous century before it’s over and done.

Too many pseudo-thinkers still love the idea of stealing from some and giving to others. For political power and money. They lie when they claim it’s about caring. But, all politics is based on lies, so what do you expect?

It seems obvious that socialism will increase until self-inflicted disaster forces an end to it.

I hope you and I can use the awareness of what’s coming to prepare and prosper throughout it– or at least survive it. If you can profit from it, on the backs of the socialists who are trying to eat you alive, do it with a clear conscience. If you can profit off the socialism by helping the rare fellow non-socialist through the rough times, just know you are providing a service– you are one of the good guys.

Through all the pain it causes you, just remember the monumentally greater pain it will cause the dolts who embrace it when their chickens come home to roost. They’ll be shocked and caught by surprise. You won’t. That makes you mighty.

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The FDA’s Assault on Tobacco Consumers, Part 3

Early one morning last December, Jeff Gracik was heading to his southern California home garage-workshop where he makes his living when he heard a loud, hurried knock on his front door. Thinking it might be a rushed UPS driver, he quickly opened the door. But it wasn’t UPS. Standing on his doorstep were three badge-flashing inspectors from the U.S. Food and Drug Administration. They had come to inspect Jeff’s business.

Just what is Jeff’s business? Does he produce food? No. Does he produce drugs? No again. So why the unannounced visit by FDA inspectors?

Jeff makes pipes for tobacco pipe smokers. He doesn’t make tobacco, mind you, which (alas) Congress empowered the FDA to control, but pipes, most of which are made from wood (most commonly briar, but other varieties too), materials such as acrylic and vulcanized rubber for the mouthpieces, and wood stains, which Jeff buys but does not make.

In its wisdom, the FDA has deemed pipes “tobacco products,” a category of things it regulates under the Family Smoking Prevention and Tobacco Control Act (TCA) of 2009. Forgive the bureaucratese I’m about to shovel your way, but an FDA document states (pp. 257-58):

“The definition of ‘tobacco product’ … includes all components, parts, and accessories of tobacco products (except for raw materials other than tobacco used in manufacturing a component, part, or accessory of a tobacco product). FDA interprets components and parts of a tobacco product to include any assembly of materials intended or reasonably expected: 1) to alter or affect the tobacco product’s performance, composition, constituents or characteristics; or 2) to be used with or for the human consumption of a tobacco product. Both e-cigarettes and pipes meet this definition.”

You may find it odd that the FDA chooses not to regulate lighters, matches, ashtrays, humidors, and the like, but it has its reason: it deems such things to be accessories, not components and parts. Accessories, the FDA says, “do not contain tobacco, are not derived from tobacco, and do not affect or alter the performance, composition, constituents, or characteristics of a tobacco product.” Since pipes do those things, they are deemed regulated components rather than unregulated accessories.

Who knew the FDA personnel had the wisdom to make such fine distinctions?

Note the first word I emphasized a couple of paragraphs earlier: interprets. The FDA admits it has no explicit statutory authority to regulate things not made or derived from tobacco even if they can be used to consume tobacco. Did the members of Congress who wrote and voted for the TCA (which amended the FD&C) deem non-tobacco products such as wooden pipes to be tobacco products? It appears not. The legislation states that the “term ‘tobacco product’ means any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product (except for raw materials other than tobacco used in manufacturing a component, part, or accessory of a tobacco product).”

The word including would seem to limit the covered components, parts, and accessories to things “made or derived from tobacco,” of which the briar root Jeff Gracik uses is not an example. Briar comes from the root of the flowering plant called Erica Arborea, or tree heath.

To reinforce my point, note that the word pipe appears in the TCA only as a qualifier for the word tobacco. The statute’s authors wanted to assure that tobacco is understood to include pipe tobacco and not just cigars and cigarettes. But the legislation contains not one single reference to pipes per se. So Congress apparently did not intend to authorize the FDA to control anything other than tobacco or things derived from it, even things that are likely to be used to consume tobacco.

But no matter. The FDA has assumed the power to deem non-A to be A. Logic and common sense be damned.

At any rate, three FDA inspectors (two of them trainees) turned up unannounced at Jeff Gracik’s door to say that they had the authority under the TCA to enter his premises — right then — and inspect his home workshop. Actually, he had “consented” to inspections once every two years when he registered with the FDA as a pipe maker. Jeff had learned earlier that under the law, retailers could not sell his pipes unless he was registered, so he allowed a retailer to register him, saving him the trouble of doing the paperwork himself. He had no choice: he earns his living as a full-time pipe maker and wants to keep doing so.

Jeff, who is 39, started making pipes in 2003. He sold his first one a year later and has since built a sterling reputation among pipe collectors. He makes 100 to 125 pipes a year — which sell for $800 to $3,000 apiece — under the name J. Alan Pipes. Jeff is an artisan; he makes pipes one at a time by hand. Each is unique, a thing of beauty, a dazzling collaboration of nature and human being. He and brother Jeremy have a second, lower-priced line of partially machine-made pipes under the name Alan Brothers.

Needless to say, Jeff was unaccustomed to having federal agents traipsing around his workshop. “I was so shocked,” he told me. He said the inspectors were friendly but firm — and apparently unsure what they were supposed to be doing. This might have been their first venture into unknown territory. (Other pipe makers are being similarly visited.) The inspectors started asking questions “most of which were not really relevant to pipe making. Things like: tell us about all the materials you use. Tell us about where they’re from. Do you have receipts for where they’re from? We need the names for all the distributors for all your materials. We need to know exactly the ingredients with which they’re treated; so, for instance, briar, how is it treated? Of course, I’m an artisan. I don’t have those kinds of records.”

That was just the beginning. “They had me demonstrate how to make a pipe. So I had to take a block of briar and chuck it in my lathe…. And as the day went on, they became more and more interested in what I was doing.” He said some of their questions suggested they were interested in the potential toxicity of materials and ingredient, but that’s as far as that went. They tested no materials or stains and took no sample with them. Jeff was not told to submit anything for approval.

The visit lasted six and a half hours, as if this small businessman had nothing better to do than entertain a group of FDA inspectors. “I got nothing done that day,” he said.

“They wanted to see written procedures,” he explained. “How do you do A to Z?” He told them that as a craftsman and unlike a factory, he has no written procedures. As the hours went by he sensed he was almost gaining sympathy from the inspectors.

Jeff said he did his best to comply with all requests, including requests for documents going back to 2006. “If they shut me down because I failed to answer a question to their satisfaction,” he said, “then my kids don’t eat and we foreclose on our house.”

For the record, the TCA states that regulations “shall not impose requirements unduly burdensome to a tobacco product manufacturer or importer, taking into account the cost of complying with such requirements and the need for the protection of the public health ….” Decide for yourself if the FDA obeys that prohibition.

The FDA and those who support government control will point out that even though pipes are not made from tobacco, they are used to consume tobacco. That’s true. But Gracik points out that some people who buy his pipes, which can be as beautiful as any work of art, are collectors who don’t smoke. (Interestingly, his grandmother’s first cousin was Andy Warhol.)

It’s hard to say how many pipe makers we have in America. People connected with the industry and hobby estimate the number of full-timers at 25 to 30, with a few hundred more who make and sell pipes part-time. Jeff is afraid that the thicket of rules could persuade many of them to “throw in the towel.” He says: “It scared the hell out of a lot of pipe makers when we found out we were under this kind of scrutiny.”

The pipe makers certainly could use a trade association to protect them. But Gracik says they are, unsurprisingly, individualists and so discussions about forming an association have gotten nowhere.

So the FDA harasses — even if it’s with a smile — small-scale artisans who scratch out livings working by hand with wood and other harmless materials. To what end? It’s all part of a larger puritanical campaign to harass peaceful Americans who enjoy consuming tobacco via cigarettes, cigars, pipes, and smokeless tobacco and using non-tobacco nicotine e-cigarettes.

“Nothing so needs reforming as other people’s habits,” Mark Twain said.

Using tobacco is not risk-free, of course, but most things in life are not risk-free. In the real world, risk can be managed and minimized but never eliminated, and in a free society, individuals have the right to decide for themselves how to go about doing it.

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