What Should One Do?

Imagine this scenario and let's do a thought experiment. I'm ordered by the Department of Health and Human Services (DHHS) to perform, without compensation, cleaning services at a local senior citizen retirement home. I've not been found guilty in a court of law of a crime for which I'm being punished. I've simply been ordered by DHHS to work at the senior citizen home in the name of promoting the public welfare. Failure to comply means going to jail.

I might seek a court injunction against DHHS's edit. But suppose the court ruled that DHHS had the authority to order me to perform cleaning services at senior citizen homes. I might take my complaint all the way to the U.S. Supreme Court only for the Court to rule: yes, under the U.S. Constitution's welfare clause, and the authority it gives Congress, I'm compelled as ordered by DHHS to perform cleaning services.

My question to you is now that the courts have ruled, should I simply comply? You might rejoin by suggesting that the question cannot be answered unless additional information is supplied such as: Did Congress properly vote to authorize DHHS to order me to clean senior citizen homes? Did DHHS single me out or are other Americans assigned similar tasks? In other words, was there invidious discrimination?

My response to your first set of questions is what does a vote have to do with the rightness or wrongness of the DHHS mandate? Would one determine the rightness or wrongness of rape, murder, theft and slavery by whether there was majority vote? To the second question, I would also ask does the rightness or wrongness of an act depend upon the number of people, a hundred people or millions of people, forcibly used to serve the purposes of another? Was slavery in our country okay because 4 million blacks were enslaved instead of just one? Does equality in servitude make servitude just?

One might rejoin by saying, "All those arguments are neither here nor there; the law is the law and people should obey." I say balderdash! South Africa used to have apartheid laws that strictly controlled where blacks could live, work, and eat. Nazi Germany had anti-Semitic laws. In United States there was the Fugitive Slave Act of 1850. Would you have obeyed those laws?

Would you have approved of and sought prosecution of white employers who hired black workers in contravention of job reservation laws that were a part of South Africa's Civilized Labour Policy? In Nazi Germany, would you have approved sanctions against Germans who were hiding Jews or assisting them to escape? In the U.S., would you have turned in members of the underground railroad who assisted escaping slaves? These questions suggest that when deciding whether or not to obey a law, one has to always ask whether that law is moral and just. But that's not quite the end of it. One must also ask, if he decides to disobey immoral and unjust laws whether he is willing to risk suffering at the hands of the state for disobedience.

You say, "Okay, we've gone through your thought experiment; so what's the relevance?" Most people would agree that it would be wrong and immoral to force me to clean senior citizen homes. They might even say that it would be a form of constitutionally prohibited servitude. But would they go so far as to accept the generalization that it is immoral and unjust for one person to be forcibly used to serve the purpose of another? Saying so and giving just a bit of thought to such a generality would introduce significant difficulties in today's America. Why?

While most Americans would agree that I should not be forced to clean senior citizen homes, no similar consensus would be reached about whether it is right to take a portion of my earnings through taxes and use that money to hire someone to clean senior citizen homes. However, there is little conceptual difference between physically forcing me to clean senior citizen homes and physically forcing me to cough up some of my earnings to do the same. In the case of forcing me to spend four hours cleaning senior citizen homes, I must forego money I could have earned and used were I not mopping and scrubbing. If I am taxed, I still must forego enjoyment I could have received from four hours of earnings. Both measures forcibly use me to serve the purposes of another under the pain of punishment. What's worse are fines and imprisonment if I disagree with that use of my earnings. Moreover, if I am too resolute in my refusal I can suffer death at the hands of the state. The latter if I refuse to submit to fines or imprisonment.

Morally there is only a trivial distinction between forcing me to perform cleaning services at senior citizen homes and accomplishing the same through taxation. The taxation form of servitude is less visible and hence more palatable to the ordinary citizen and as such it makes servitude politically more feasible. Not many Americans, I would hope, would sanction enslavement of doctors to provide medical treatment to the medically indigent or enslavement of lawyers to provide legal services to the poor. In a moment of reasonableness, they might argue that if cleaning senior citizen homes, treatment of the medically indigent and providing legal services for the poor is in the public interest then its burden should be borne by all Americans instead of particular Americans. But distributing the burden through the tax code simply conceals the immorality of forcing one person to serve the purposes of another.

There is nothing in our Constitution that authorizes Congress to engage in "charitable" expenditures and no clearer words were spoken about that than those of the United States Constitution's "father" James Madison. In 1792, Congress had appropriated $15,000 to assist some French refugees. James Madison disapprovingly said, "I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents."

So what is to be done when our government makes immoral or unconstitutional decrees? Is one morally obligated to obey immoral and unconstitutional laws? I think not but one has to decide whether one wants to risk fines, imprisonment and death at the hands of the United States Congress.

Walter E. Williams
Ideas on Liberty, January 2001
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