As a hardcore anarchocapitalist, I have always disagreed with Thomas Jefferson and felt that rights are indeed alienable if you so choose to alienate them–freedom rules! But there are some cases where the State exploits the bargain we supposedly struck in the Constitution and does an end-run around a fundamental right. In both of my examples, this right is trial by jury–arguably the most important right a citizen can have. In one case, plea bargains are used to get INNOCENT people to agree to go to jail (ht Angela McArdle on that insight), but threatening exorbitant penalties for a series of charges that derive from a single alleged act. In another example emerges from a recent Supreme Court case: can form-contracts compel employees to use arbitration? In my experience, entire industries are bound by arbitration requirements–as in, if you don’t sign one, you don’t work in that industry. Furthermore, the arbitration companies are often captive, ruling with egregious bias in favor of the corporations who contract with them. My libertarian side says, they are private companies, they can do what they want. My pragmatic side says, the government protects many if not all of these industries from the competition which would drive that practice out of the market place, so courts should not deny a plaintiff the right to sue if they signed away their rights in an industry so locked up. Another old expression of mine comes to mind: Libertarians die by the sword, but they don’t live by it.

Comments (1)

Your example of binding arbitration agreements as a condition of employment is a good one. Some industries take it even further by having employees agree to binding arbitration even in cases where they allege that their CIVIL RIGHTS were violated. So, to me, that begs the question: Does there exist a right that CANNOT legally be signed away?

Leave a Reply

Your email address will not be published.