All Commentary
Thursday, May 1, 1986

Liberties Lost in the Balance


Joseph S. Fulda is Assistant Professor of Computer Science at Hofstra University and resides in Manhattan,

Government intervention leads to irreconcilable differences.

One of today’s major functions of the Supreme Court is to decide between competing claims based on the rights of the parties to the dispute, in balancing the parties’ rights at least one side and often both sides find their rights circumscribed.

As we shall show by means of several well-chosen examples, this function of the High Court (and for that matter, lower courts and legislators as well) would be rendered nugatory in a libertarian society. In each case there is some underlying government intervention which forces the conflict between the liberties of the parties and makes a choice between them inevitable.

Consider for example the issue of prayer in the public schools. Proponents say, correctly, that the founders of the Republic never meant to exclude God from the classroom, that prayer has never harmed a soul, that it remains voluntary. Opponents argue, correctly, that students who are “different” and don’t pray with the group will be singled out for unpopularity and that a child under such undue pressure has no volition to speak of. They add, correctly, that parents, not schools, should minister to the religious needs and beliefs of children.

And so the issue is left to the Supreme Court to decide. An unending Stream of cases: Moments of silence, student-led prayer groups, prayer after school hours but on school property, and the like, is the result. Whatever the court decides, however, and no matter how carefully or idiosyncratically it draws the line between the religious liberty and educational freedom of the various constituencies, someone must surrender a piece of his freedom.

When I am asked whether I favor prayer in the public schools, however, the answer is quite a bit simpler. No lines to be drawn, no careful circumscriptions of rights, and no balancing of one man’s liberty against that of another man. “I do not favor public schools,” I reply, “and therefore do not reach your question.” The key to the controversy is not “prayer” but “public.” It is the underlying government intervention of compulsory schooling and tax-financed, government schools which forces the competing claims to a head. Were the schools to be all private, there would be no problem, as each parent selected the school which best meets the interests of his or her child as the parent defines it.

As another example, consider the demonstrations led by neo-Nazis in Jewish areas. Opponents say, correctly, that hatred has no place in a society of refugees, diverse ethnic groups, and freedom. They add, correctly, that such “speech” was never intended to be free by the Founders, who made a careful distinction between freedom and license. Proponents say, correctly, that the test of free speech in a free society is only met when that which is spoken is repugnant to the great majority of people. They add, correctly, that truth is best served by an unbridled freedom of expression and that hatred is unlikely to take root in today’s benevolent America.

Again, however, someone must surrender his liberty, no matter how the question is decided. Were streets to be private property, as libertarians have proposed, the owners would determine what may or may not take place on their property and the government would not be called on to choose between its citizens. With public ownership of the streets and by-ways of America there is simply no way for the government to accommodate both the claims of those who wish a public forum and those who do not want their sensibilities lacerated by the promulgation of such vicious, vituperative, empty speech.

Most controversies of the day can be reduced to an underlying government intervention. Thus, similar to our first example, we have the furor over sex education, phonics and reading, values clarification, evolution and Creation, and the like. Likewise, public religious displays, smoking in the streets, and soliciting of funds by religious groups in public areas are all similar to our second example. In each case the controversy would disappear with privatization and the rights of all parties would be respected.