Superior Court Navigates ‘Twists and Turns’ in Case Involving Paternity Tests

Pennsylvania Superior Court recently heard a rather complex and tangled case regarding how, when and what significance a paternity test may have in determining the paternity of a child. In the matter of H.Z. v. M.B., 2019 Pa.Super. 33, the Superior Court offered insights that may be instructive for other similar matters, especially in cases where attempted clever tactics and intrigue are elements.

In H.Z., the mother, seeking child support, filed for paternity testing in New York shortly before the child was born in March 2005. The results of the testing excluded M.B., the putative father. Consequently the parties entered into a stipulation providing that the mother would discontinue her paternity and support actions against M.B. with prejudice.

Two years later, the mother hired a private investigator to surreptitiously secure a sample of the father’s DNA. Specifically, the investigator followed M.B. to a Starbucks where he picked M.B.’s discarded coffee cup out of a trash can, and submitted it for genetic testing that resulted in a finding of a probability of over 99 percent percent that M.B. is the father of the child.

About a year later, the results of the investigator’s test motivated the mother to file a new paternity case against M.B., this time in New Jersey, where the mother had relocated. The case was transferred to Pennsylvania as New Jersey had no jurisdiction over M.B., who was a resident of Pennsylvania. A few months later, the parties again entered into a stipulation dismissing the mother’s case.

Undeterred, the mother almost immediately filed a third case, this time in Montgomery County, to which M.B. filed preliminary objections, a motion to dismiss and a motion to stay the testing, primarily on the basis of res judicata. While M.B. successfully had the Starbucks test excluded as evidence, per a motion in limine, the case, for some reason, was not scheduled for a hearing until about five years later. After that hearing the trial court ordered M.B. to submit to genetic testing once again. The father appealed, primarily on the basis of res judicata. In an unpublished opinion, the Superior Court ruled that the stipulation entered in the New York matter was in violation of New York law and, therefore, not controlling.

Finally, after another year’s time, M.B. submitted to a buccal swab genetic test requested by the mother’s petition requesting blood and hair testing, which again excluded M.B. as the father of the child. Upon receiving the result of this test, M.B. requested the dismissal of the case. The mother countered by requesting M.B. to submit to more rigorous testing on the basis that M.B.’s DNA samples had irregularities, and M.B.’s genetic profiles in the various tests all differed from one another which, she averred, means they did not come from the same person. The parties subsequently filed various motions seeking sanctions and striking filings. A trial court hearing on these issues was finally scheduled for December 2017.

At the hearing, the mother called two officials from the Montgomery County Domestic Relations Office who testified that, despite many years of experience and their knowledge of  hundreds of cases, neither have had a case where the DNA sample they collected was insufficient for testing. In opposition to these witnesses, M.B. called a DNA lab director who testified that there was no evidence of tampering, no issues with the chain-of-custody of the DNA sample, and no issues with testing protocols. While the lab director did note that the DNA that was recently tested did degrade, she could not come to a definite conclusion as to why.

After some of the witnesses testified at the hearing (as described above), the trial court scheduled at least two more days of testimony. Without explanation or apparent reason, the trial court suddenly entered an order concluding that M.B. is the father and directed that an appropriate support order be awarded. M.B. immediately appealed to the Pennsylvania Superior Court.

On appeal, M.B. argued that the mother’s case should be dismissed on the basis that the Montgomery County test excluded him as father. M.B. specifically argued that a paternity hearing could only be scheduled if the results of a genetic test did not indicate that the putative father was not excluded from being the father. Consequently, per M.B.’s argument, in the instant matter, as the Montgomery County test excluded him as the father, the aforesaid rule required the mother’s case to be dismissed. The Superior Court rejected this argument and decided that the rule does not limit the scheduling of a hearing only when a test does not indicate an exclusion. The court also pointed out that the rule does not provide that a genetic test—by itself—is sufficient to establish paternity but, instead, indicates that a hearing on the reliability of genetic testing is permissible. The Superior Court also found that Rule 1910.15(d)(4) sets forth “a clear course of conduct addressing every possible result of the genetic testing” and M.B.’s request for dismissal was not relief afforded to him by the rule.

M.B. further argued that the Uniform Act on Blood Tests to Determine Paternity (23 Pa.C.S.A. Section 5104) eliminates any discretion on the part of the trial court to rule in this matter. Superior Court ruled that the aforesaid statute does not apply as no blood test ever took place in this matter, rejecting M.B.’s argument that it applies to all manner of genetic testing, not just blood testing.

M.B. then argued that 23 Pa.C.S.A. Section 4343 also requires the dismissal of an action for paternity when a man is excluded from paternity after genetic testing. The court rejected this argument as well, pointing out that the statute cited by M.B. actually directly opposes his argument. The Superior Court noted that the statute “does not provide that genetic tests are conclusive of the issue of paternity,” but such a determination may only be made by “a court in a civil action.” Additionally, the statute also allows for additional testing if a party contests the initial test.

M.B. proffered a cursory argument that additional testing would violate his Fourth Amendment rights under the U.S. Constitution. However, as he did not raise this argument in a timely manner, the Superior Court did not consider it. Instead, it indicated that additional testing may be permitted if the first test can be demonstrated to be unreliable by the preponderance of the evidence.

M.B. finally argued that the trial court abused its discretion by basing its ruling on excluded evidence (the Starbucks cup) and the Montgomery County test (which he argued had no facts to suggest it was unreliable). The Superior Court was sympathetic to this particular argument, however it directed its focus to the fact that the trial court never completed the record due to inexplicably entering an order before finishing the hearing. As a result, the court could not sufficiently review the facts and evidence in the case as it was left incomplete. Indeed, the Superior Court ruled that 23 Pa.C.S.A. Section 4343 affords the mother the right to an additional genetic test at her own expense as a matter of right.

After all of the twists and turns in this case, the Superior Court ruled that the trial court committed an abuse of discretion when it ruled that M.B. is the father as the hearing was not complete. The Superior Court ultimately ruled that an additional test is to be administered if no stipulation between the parties is reached. If the new test indicates M.B. is the father, then a hearing may be scheduled to determine the reliability of the test. If M.B. is excluded as the father, then the parties may proceed to a hearing on the issue of paternity. If any additional testing is requested, then evidence of any prior tests’ unreliability must be presented, and Fourth Amendment implications can be considered. As a result, the trial court’s order was vacated and the matter was remanded for further proceedings and testing.

May this case be a warning to those who think that genetic testing to determine paternity speaks conclusively as to who a child’s father is or is not. While modern technology has made significant contributions in this area, there still remains sufficient doubt to warrant other forms of evidence and inquiry before a court.

This article was originally published in The Legal Intelligencer on March 19, 2019 and can be found here.

Ministerial Exception Defense Rejected In Suit To Apply Labor Code To Preschool Teachers

This is from religionclause.blogspot.com which you can find here:

In Su v. Stephen S. Wise Temple, (CA App., March 8, 2019), a California state appellate court held that teachers in a Reform Jewish Temple’s preschool are not covered by the ministerial exception rule.  In the case, California’s Labor Commissioner sued on behalf of 40 teachers alleging that the school violated the state’s Labor Code by failing to provide rest breaks, uninterrupted meal breaks, and overtime pay.In rejecting the Temple’s ministerial exception defense, the majority said in part:

Although the Temple’s preschool curriculum has both secular and religious content, its teachers are not required to have any formal Jewish education, to be knowledgeable about Jewish belief and practice, or to adhere to the Temple’s theology.  Further, the Temple does not refer to its teachers as “ministers” or the equivalent, nor do the teachers refer to themselves as such. Accordingly, we conclude the teachers are not “ministers” for purposes of the ministerial exception.

Presiding Judge Edmon filed a concurring opinion contending that the court need not reach the question of whether the teachers held “ministerial” positions, saying in part:

I would conclude that the Temple has not demonstrated that the ministerial exception has any application to the present dispute, which does not touch on the Temple’s freedom to choose its ministers or to practice its beliefs….

[T]he constitutional imperative against encroaching on a church’s selection of its ministers does not, as a logical matter, suggest that churches must be exempted from all laws that would regulate the employment relationship between a religious institution and its ministers. Given the number and variety of federal and state employment laws, it stands to reason that some laws will impose a greater burden on religious interests than will others. Accordingly, courts can, without doctrinal inconsistency, exempt churches from the application of some employment laws without exempting churches from all such laws.

You can learn more about this issue here.

City Settles Firefighter’s Religious Discrimination Suit

This is from religionclause.blogspot.com which you can find here:

The city of Utica, New York has settled a religious accommodation lawsuit that was filed against it by a firefighter who refuses to cut his hair after taking a Nazirite vow.  Under the settlement announced Friday, firefighter John Brooks has been granted a religious accommodation from the fire department’s grooming policy. A press release from First Liberty announced the settlement. First Liberty’s website has more on the case.

You can learn more about this issue here.

Christian School May Use Oregon’s Religious Exemption To Reject Jewish Faculty Applicant

This is from religionclause.blogspot.com which you can find here:

In King v. Warner Pacific College, (OR App, Feb. 21, 2019), an Oregon state appellate court held that a Christian college’s refusal to hire a Jewish applicant for a position as adjunct professor of psychology falls within the religious preference exemption to Oregon’s non-discrimination law.  ORS 659A.006(4)provides:

It is not an unlawful employment practice for a bona fide … religious institution, including … a school… to prefer an employee, or an applicant for employment, of one religious sect or persuasion over another if:  (a) The religious sect or persuasion to which the employee or applicant belongs is the same as that of the … institution; … [and]  (c) The employment involved is closely connected with or related to the primary purposes of the … institution….

The court held that the exemption allows the school to reject a non-Christian applicant and await a later hiring cycle to fill the position, or to assign the work to an existing Christian employee.  A majority of the judges also held that this particular faculty position met the requirement of being closely connected to the school’s religious purpose.

You can learn more about this issue here.

Wisconsin Supreme Court Candidate Says Calls For Recusal Promise Are Attacks On His Religious Beliefs

This is from religionclause.blogspot.com which you can find here:

Milwaukee Journal Sentinel reports on the controversy surrounding 2005- 2006 law school blog posts of a state appeals court judge Brian Hagedorn who is a candidate for the state Supreme Court in the upcoming April 2 election in Wisconsin.  As reported in an earlier Journal-Sentinel article, the posts sharply criticized the U.S. Supreme Court’s ruling overturning anti-sodomy laws. saying they could lead to the legalization of bestiality. Hagedorn also attacked Planned Parenthood as an organization that was more devoted “to killing babies than to helping women.” Critics have called for Hagedorn to promise to recuse himself in cases involving same-sex relationships and Planned Parenthood. In a radio interview, Hagedorn, an evangelical Christian, says that the criticism of his posts and calls for recusal are attacks on his religious beliefs.

You can learn more about this issue here.

Suite Challenges School’s Restrictions On Bible Distribution

This is from religionclause.blogspot.com which you can find here:

Suit was filed this week in a Pennsylvania federal district court challenging regulations and policies of the Mechanicsburg Area School District that limit student members of a school’s Bible Club from distributing Bibles to classmates during lunch time hours. School policy allows non-school materials to be distributed only on public sidewalks outside the building and only for 30 minutes before and 30 minutes after school, except as otherwise permitted by the principal.  The complaint (full text) in Christians In Action Club v. Mechanicsburg Area School District, (MD PA, filed 1/30/2019) challenges these as “overbroad and unconstitutional time and place restrictions that impose a complete ban on literature distribution during the school day.” The suit alleges that these restrictions violate students’ free speech and free exercise rights both on their face and as applied. Cumberland Sentinel reports on the lawsuit.

You can learn more about this issue here.

Capitalists Against the Free Market

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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If you listen to the apologists of capitalism, there is one thing they consistently argue for when they rail against things like socialism or even distributism; the Free Market. They say that they believe that the Market should determine what products and services succeed and fail without artificial support or suppression from the government. Customers should be free to decide what products and services they want to buy and it is up to the producers and service providers to convince consumers to choose theirs instead of others. It is interesting to note those cases where they not only fail to support this idea, but actively work against it.

In order for consumers to be able to make a decision that truly represents the action of a free market, the consumer must have the right to know certain things about the products and service providers between which they are choosing. For example, it has generally been recognized that consumers have the right to know the ingredients of food. This is not just for reasons of health, but for other reasons as well. Vegetarians and vegans have the right as consumers to know whether or not the food they are purchasing contains meat or other animal products. This allows them to make a truly free market choice. Consumers also have the right to know who makes a product because, if they think the producer is unscrupulous, they need to have the ability to choose a competitor’s product. If they are prevented from doing this by allowing the producer to be hidden, then the consumer is prevented from making a free market decision they actively want to make.

An important aspect of this consumer choice is that the consumer’s reason does not have to be deemed “reasonable” by others. If you choose not to buy from a particular provider because they support things which you oppose on moral grounds, it doesn’t matter if those things you oppose have nothing to do with the product in question. In a truly free market, you would have the right to refuse to do business with any provider for whatever reason you want. In a truly free market, the consumer would have the right to know what he needs to know to make a truly free decision, and providers should therefore be required to provide this information and prevented from taking steps to hide it. It is the burden of providers to convince consumers to purchase their products and to do so in an open and honest way. If they fail to convince, then their failure is a result of the “invisible hand” of the free market.

In my state, Washington, there was a movement to require the labeling of products containing GMO ingredients. There are various reasons why people are making their free economic choice to not purchase products with patented genetically modified organisms, and these people were asking that their right to make that free market decision be honored by requiring that products containing these ingredients be labeled so that consumers would know what they are buying. What is truly interesting in regard to this article are the arguments I heard made by avowed capitalists against this. The capitalist pundits almost uniformly opposed the legislation on various grounds. The two main arguments made by these capitalists involved the impact to prices and the irrationality of those who opposed GMO products.

They claimed that the cost of changing the labeling would be prohibitively high and the cost of food would skyrocket as a result. There are two points which easily disprove this claim. First, companies change their labels quite frequently when it serves their purpose. They change pictures and rearrange things, they add special sections about offers. If these label changes don’t cause prices to skyrocket, then requiring the labels for future packages to indicate the presence of GMO ingredients won’t either. Second, the requirement has been made in several other countries and their prices didn’t skyrocket. Those who pointed this out were often treated with disdain by these capitalists.

The argument that those who oppose GMO products were doing so irrationally was typically in the form of saying they didn’t understand the science behind the GMO process. However, that isn’t a valid reason to oppose consumer information because the burden is on the producer to convince them to want to buy their products. If a group of consumers decides they would never purchase those products, that is still a free market decision even if the reasons for their choice are incorrect. We should expect avowed capitalists to support the right of consumers to make that decision even if they disagree with the decision itself.

While supporters of the legislation did voice their reasons for not wanting to choose GMO products, their argument about the legislation itself was essentially that they wanted the right to make their free market decision, and they couldn’t effectively do so if these ingredients were allowed to be hidden from them in the marketplace.

Since we know that the labeling requirement would not actually cause prices to skyrocket, what then is the real reason to refuse to indicate that a product contains GMO ingredients? An obvious answer is the loss of sales. In a free market with informed consumers, some of them will freely choose, for whatever reason, not to purchase products that contain GMO ingredients. In terms of free market capitalist economics, that is not only they way things work, but the way they should work. For a producer to refuse or oppose labeling that would inform the consumer about these ingredients is nothing less than deliberately working against free market values; hiding information you know the consumers want in order to effectively trick them into purchasing a product you know they don’t want. This is duplicitous at best.

Why then did so many capitalist who claim to advocate the free market vociferously oppose consumers being allowed to make informed free market decisions? They didn’t even seem to realize that they were opposing a position that essentially said, “let the free market decide the fate of GMO products in the marketplace.” In essence, they were opposing the free market itself.

An Economics of Justice & Charity

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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The Church has always concerned itself with issues of justice in society, and popes have taught extensively on the topic since the late 1800s. Unfortunately, many Catholics in our day are not aware of this teaching, or only consider it in regard to things like helping the poor. Helping the poor is a very important aspect of it, but the scope of the Church’s teaching on matters of social justice go much further. Any aspect of social life which involves questions of ethics or morality fall within the scope of this teaching. Thomas Storck’snew book, An Economics of Justice & Charity, is a guide that shows how the Church’s teaching is very clear, has never changed, and definitely applies to areas of social life like economics.

In this new book published by Angelico Press, readers of Practical Distributism and The Distributist Review will encounter some ground already covered by Mr. Storck. However, he has expanded this coverage and included more material for consideration. Especially important for the Catholic reader, and others who wish to understand the Church’s teaching on social justice, are the sections covering claims, sometimes made by Catholics, that the Church’s teaching has somehow changed since the Second Vatican Council, particularly with the encyclical of St. John Paul II, Centesimus Annus. Quoting those who claim that the Church’s teaching has changed, or that the Church has now wholeheartedly endorsed capitalism, Mr. Storck handily refutes those claims.

Another topic of interest to our readers is that of usury. On this topic, Mr. Storck clearly shows that, while the Church’s position on certain financial considerations may seem to indicate a change of teaching, the Church still condemns usury today as she always has. Through his examination of these financial considerations, Mr. Storck shows that the Church always sides with justice and maintains her teaching clear and unchanged without presenting an impossible burden for those of us who live in a world with a financial system that stands opposed to her teaching. However, he also points out that there are different financial options available to us. If we sincerely believe our Faith and strive to live by the teachings Christ has passed down to us through His Church, we need to choose options which are most consistent with those teachings whenever possible.

I wholeheartedly recommend An Economics of Justice & Charity. Consider this book for your own library and for those with whom you would like to share this important aspect of the Church’s teaching. Changing society is a slow and gradual process that must begin with getting people to consider alternatives to the status quo. This book can be a valuable tool in that most important work. Consider heading over to the Angelico Press web site to order a copy.

Interference With Child Custody or Kidnapping? High Court Sorts It Out.

The Pennsylvania Supreme Court has recently handed down a ruling in the matter of Pennsylvania v. Tex Xavier Ortiz, 45 WAP 2017, that addresses and clarifies whether the criminal offense of interference with the custody of children, committed by a biological parent, can serve as an underlying felony for the crime of kidnapping a minor.

In a related custody matter to Ortiz, the maternal grandmother of the father’s (Ortiz) daughter, was awarded primary custody of his daughter as Ortiz failed to appear at the custody hearing. Per the order granting her primary custody, the grandmother attempted to exercise her custodial rights over the daughter, but could not locate her. After an investigation, it was found that Ortiz had his daughter and made efforts to conceal his whereabouts. The daughter was eventually found and returned to the grandmother, and Ortiz was arrested.

Ortiz was charged and convicted of interference with the custody of children (ICC) (pursuant to 18 Pa.C.S. Section 2904(a) and (c)) as well as kidnapping a minor (pursuant to 18 Pa.C.S. Section 2901(a.1)(2)). Ortiz appealed and argued that the ICC cannot serve as an underlying felony for the kidnapping of a minor when committed by a biological parent. Pennsylvania Superior Court agreed with him, and the commonwealth was granted an allowance of appeal to the Pennsylvania Supreme Court.

The court first observed that the kidnapping-of-a-minor statute has two required elements: the unlawful removal of a child a substantial distance away without the consent of the person responsible for the supervision of the child, and one of the four enumerated states of intent as described in Section 2901(a.1)(1) – (4) (i.e: (1) to hold for ransom or reward, or as a shield or hostage; to facilitate commission of any felony or flight thereafter; to inflict bodily injury on or to terrorize the victim or another; and, to interfere with the performance by public officials of any governmental or political function.). Next, the court discussed the ICC, which prohibits “the taking of a minor ‘from the custody of its parent, guardian or other lawful custodian, when the actor has no privilege to do so.’” The two statutes clearly closely track one another and significantly overlap.

The court then turned its focus on Section 2901(a.1)(2) where kidnapping of a minor requires an intention to commit a felony or flee with the child and looked at how that related to the ICC. The court observed that applying the ICC to Section 2901(a.1)(2) resulted in unworkable circular logic. Specifically, the court opined that “it is logically problematic to assert that father unlawfully removed the child pursuant to the kidnapping statute with the intent to make it easier to unlawfully remove the child as contemplated by the ICC statute … stated otherwise, the act of taking does not, sensibly, facilitate the act of taking.”

To discern a proper understanding of how to interpret these statutes together, the court looked to the Model Penal Code, from which both statutes at issue herein are derived. Pursuant the commentary to the Model Penal Code, kidnapping protects against physical danger, while the ICC serves only to maintain parental custody of children against unlawful interference, which does not necessarily touch upon any of the four statutory states of intent in the kidnapping statute listed above. Furthermore, someone who commits kidnapping typically has malevolent intent toward the child, while, by contrast, violating the ICC, although unlawful, is committed by someone who typically is favorably disposed to the child. The ICC, therefore, operates as a lesser included offense to kidnapping to allow for punishment of the act of unlawfully taking a child contrary to a custody order, which is less severe than standard kidnapping in that it does not meet the states of intent mentioned above.

Based on the above, the court ruled that a conviction under the ICC cannot form the underlying felony for a kidnapping charge under Section 2901(a.1)(2). The court found that the authors of the Model Penal Code “having assiduously explained that kidnapping requires more than interference with the custody of a child by a parent—did not intend for such interference to be reintroduced into the calculus under the rubric of a predicate felony.”

Finally, the court rejected the commonwealth’s argument that a defendant may be prosecuted under all available provisions under 42 Pa.C.S. Section 9303 because the kidnapping statute and the ICC do not cover the same underlying conduct.

In sum, a finding that a biological parent committed the crime of interfering with a custody order under 18 Pa.C.S. Section 2904(a) and (c) cannot also serve as an underlying felony for a charge and conviction for kidnapping a minor.

Originally published in The Legal Intelligencer on December 20, 2018 and can be found here.

Self-sufficiency and economic freedom

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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Hilaire Belloc’s Essay on the Restoration of Property is a remarkably well-written book.  Put aside the question of whether Belloc is right or wrong about any of his contentions: the book is thoroughly lucid.  It’s also organic—you really can’t dip into it at random, you need to get ahold of the ideas as a whole.  This feature of the book, I think, leads to confusion among critics.  Well, there’s also the fact that despite its lucidity, the book covers far more territory than it could exhaustively treat, so there are some ideas that aren’t fully fleshed out.  One of those ideas, at least in my experience, is economic freedom.  It’s one of the central notions of the book, and one of the most fundamental principles upon which Distributism stands, and I’ve had a difficult time coming to grips with it.

It seems to me others have, too, including some prominent opponents of Distributism.  In particular, there seems to be a tendency to conflate economic freedom and self-sufficience.  This has serious consequences.

As I say, the book is an organic whole, so I can’t just pick up ‘economic freedom’ on its own.  I need to back up a little.  Belloc begins with the Production of Wealth.  This is, as he puts it, the transformation of man’s environment from a state that is less useful to a state that is more useful.  ‘Wealth,’ here, doesn’t mean large sacks of cash (at least, not generally).  It means all the things we need to have in order to live conformably to our nature: things like food and drink and clothes and shelter.

The transformation of our environment—the Production of Wealth—occurs only through the use of the Means of Production:

The wealth can only come into existence through the manipulating of natural forces by certain instruments; and there must also be an existing store of food and clothing and housing and the rest of it [e.g. clothing and fuel: or, in other words, wealth] so that human beings may carry on during the process of production.  These stores of wealth, these instruments and these natural forces are the Means of Production.

Note that last sentence carefully.  The means of production include such things as food and clothing, tools (“certain instruments”), and the natural forces with which we work.  It follows immediately that “whoever controls the means of production controls the supply of wealth.”  It also follows immediately that if the family does not control the means of production, then it will not be economically free.  That is: economic freedom requires control over the means of production.  Without control over the means of production, you are economically dependent upon others.  If you are economically free, you are not economically dependent upon others.  But of course this all comes in degrees.  To attain ideal economic freedom, one must attain full control over all the means of production required for the production of the sorts of wealth called for by one’s life.

Now, a quick review of that last paragraph brings to light why it’s so easy to confuse economic freedom with self-sufficiency.  But hold on to that for a minute.  First, we need to get clear on this notion of ideal economic freedom.  It’s not what you think.

The ideal, Belloc says, is inhuman.  In other words, do not read Belloc’s use of the term ‘ideal’ as meaning “a goal to be strived for even though we are sure to fall short,” or as “that which would be most appropriate for us, should we, per impossibile, attain it.”  That is definitely not the way to take it.  He uses the term in the sense of being an idealization, which is to say, a falsification.  Man is a social animal.  He is not made for the kind of isolation implied in such an ideal.  Again—and this can’t be stressed enough—ideal economic freedom is not a desideratum.  It must come with limitations.

So Belloc posits two restraints upon economic freedom.  First, there is the Difference of Occupation: some will mainly raise grain, some will mainly mill grain, some will mainly make millstones, some will mainly fix grain planting equipment, etc.  Second, there is the Principle of Unity, namely, the State, which helps maintain justice and order internally, and helps arrange for defense against aggression from without.  The resulting dually-limited economic freedom “satisfies the nature of man.”  So these limitations are not unfortunate constraints that bar our way to Utopia.  There is no Utopia—the “ideal” is eschewed from the outset as not proper to our nature.

What is to be pursued is not an inhuman ideal, but rather the wide distribution of control over the means of production, which is to say, private property.  And the family must control the means of production, or else it will not be economically free.  One can, of course, reject economic freedom as a goal (and Belloc deals with some arguments intended to do that).  But if one accepts economic freedom as a goal, then it is hard to see how Belloc’s conclusions to this point can be gainsaid.

At any rate, my task for today is not to argue in defense of economic freedom.  It is, rather, to clarify the relation between economic freedom and self-sufficiency.  I’ll take an old article from Thomas Woods as an example of the confusion of those two notions, and of its consequences for understanding Distributism.  But let’s start with the distinction.

I doubt there’s an authoritative account of exactly what self-sufficiency is, so let’s just make it easy on ourselves and go straight to Wikipedia.

Self-sufficiency (also called self-containment) is the state of not requiring any aid, support, or interaction for survival; it is a type of personal or collective autonomy…  Self-sufficiency is a type of sustainable living in which nothing is consumed other than what is produced by the self-sufficient individuals.

Obviously there’s an ideal form of self-sufficiency, just as there’s an ideal form of economic freedom, and I suspect that the ideal of self-sufficiency is equally unattainable and undesirable.  So self-sufficiency comes in degrees like economic freedom.  But are they the same thing?

If so, then any increase in the one is an increase in the other, and the having of a large amount of the one entails the having a large amount of the other (and vice versa).  But that’s not how the relationship between the two really works.

Imagine a person who buys a small farm on the outskirts of a major city.  The value of the property is, say, one million dollars.  The farmer desires to be self-sufficient.  He wants to raise all of his food and fiber and fuel.  So he manages, over the course of some years, to grow large amounts of cotton and wool (and, correspondingly, mutton and lamb and even some sheep’s milk), along with maintaining a wood lot for firewood and a large garden, together with a laying flock and fruit trees and brambles and so forth.  The farm allows the farmer to become remarkably self-sufficient.

Does that mean the farmer is remarkably economically free?  Well, no, not necessarily.  Suppose the farmer, in addition to his farm work, holds a fulltime job as a high school science teacher.  His extreme degree of self-sufficiency is a pretty good thing, because the mortgage payment on the farm eats up virtually his whole income.  If he should lose his job, he would within a very short time lose his farm.  The truth is that he does not own the means of production, and hence he is not economically free.  (Objection: he’s not really self-sufficient, because his farm depends upon inputs from outside the system: namely, money.  Reply: first, even if it were granted that he’s not perfectly self-sufficient, nevertheless, if the term ‘self-sufficient’ has any meaning at all, it can be applied to this person.  For comparison, just think of the high school science teacher who produces none of his own food, fuel, fiber, etc.  That person is not at all self-sufficient, but the farmer teacher is far more self-sufficient.  But second, the objection equivocates on self-sufficiency, essentially by conflating self-sufficiency with economic freedom, or in other words it begs the question here.  That it doesn’t justifiably do so can be shown by considering the distinction between economic freedom and self-sufficiency from the opposite direction…a task to which I now turn.)

Looking at the question from the opposite direction, we can easily imagine someone who has inherited a large plumbing firm, and is able to live on the income from that firm, but who does exactly zero productive labor.  Economically free, but not at all self-sufficient.

In short, self-sufficiency and economic freedom are quite distinct.  That’s not to say they’re wholly disconnected.  Other things equal, the more self-sufficient you are, the more economically free you are.  (I do not think the entailment runs in the other direction, as the latter example above shows.)  But the point is that if you don’t carefully distinguish between the two concepts, you’ll start making mistakes about them.  Now I turn, as promised, to Woods.  Forgive the long quotation: I need it all here so you can see what I mean about making mistakes.  Note the way that economic freedom and self-sufficiency—together with in/dependence and security (I’ll put the terms in bold in order to obnoxiously belabor the point)—get mixed together in what follows:

For Belloc, then, the great advantage of distributism is that it gives the household a significant measure of independence. A new introduction to his Essay on the Restoration of Property describes his view of “economic freedom” as something that “comes from the possession of sufficient productive property, such that a man need not depend upon his employer for a wage, but has rather to depend upon himself and his land, craft, tools, and trade for his sustenance.”  Belloc acknowledges in passing that of course anyone selling to others is in some way dependenton those others, thereby conceding that risk and uncertainty are unavoidable aspects of life rather than unique to a system of economic freedom. If the price and quality of his goods do not remain sufficiently competitive, he is surely bound to lose business. However, Belloc points out, the family can nevertheless live on its own, even if buyers refuse to purchase its surplus goods. They can live on what they themselves produce. At heart, then, Belloc’s promise of security amounts to the distributist family’s ability in the last resort to retreat altogether from the division of labor and live in a condition of self-sufficiency.

I take it I don’t need to spend too much time pointing out that Woods is attributing to Belloc the ideal version of economic freedom, rather than the desirable or real one that Belloc actually defends.  If Belloc’s “promise of security” comes down to saying, hey, at least you can live altogether in isolation—which is to say, in an undesirable and unnatural state—then it’s not much of a promise.

I would have thought the point was obvious enough: if I’m entirely dependent on my employer for all my wealth, then I am not economically free.  At any moment, my employer could elect to end my employment.  If, on the other hand, I own the means of production (not simply a farm, but a plumbing business or a bakery or a law office) then while of course I am “dependent” on my customers or clients (just exactly as my employer is dependent upon his customers or clients—there’s no difference there), I am not alsodependent on my employer.  A whole layer of dependence has been removed.  In no case am I wholly secure in this world: just for one example, a terrible economic crash can hurt an independent plumber just as badly as it can hurt an employee of a large plumbing firm.  (Although I suspect that even here there is nuance.  An employee of a suffering plumbing firm may simply be let go, and wind up with no income at all.  [Leaving aside unemployment benefits or what have you, which of course Belloc is strongly opposed to.]  But an independent plumber, while his business may be seriously cut back, will likely retain some income, through doing a few jobs here and there.  Leave this aside.)  Notice that economic freedom as such has absolutely nothing to do with retreating to the hills and becoming wholly self-sufficient.  It has to do with owning the means of production!  Now to see how this confusion continues to undermine Woods’s attempts to deal with Belloc, let me continue the long quotation:

Yet the advantages of the division of labor are so clear that relatively few people have found Belloc’s proposal attractive enough to have actually attempted to adopt it. Practically anyone in the United States today who possesses the requisite knowledge and modest capital can acquire farmland and chase after the kind of self-sufficiency Belloc advocated. Producing their own necessities and in possession of the means of production, so to speak, such a family would be utterly independent of employers or anyone else. They would probably also enjoy a standard of living so depressed and intolerable as to throw the rationality of the entire enterprise into question. This certain outcome probably accounts for why the overwhelming majority of people choose to take their chances within the division of labor, balancing the risks from which this earthly life is never entirely secure against the unparalleled wealth and comfort they can enjoy by not retreating into semi-autarky.

So the upshot, says Woods, is: people don’t want “economic freedom”!  It’s miserable.

But is this at all reasonable?  Take the second sentence in the above quotation: “Practically anyone in the US today who possesses the requisite knowledge and modest capital can acquire farmland and chase after the kind of self-sufficiency that Belloc advocated.”  We’ve already seen that Belloc does not advocate that kind of self-sufficiency.  But note how confused Woods is regarding what economic freedom really requires.  What kind of modest capital does Woods think is required to own one’s own farmland and the tools required to farm it self-sufficiently?  You’re not economically free, as we saw above, if the bank owns your farm.  Woods is casually tossing out the idea that “practically anyone” could go ahead and become “economically free” by buying a farm and successfully living off it, because he’s confusing self-sufficiency with economic freedom.  (Ignore the fact that Woods seems to underestimate—egregiously underestimate—the amount of knowledge that would be required to become self-sufficient anyway.)

Worse, once again, the “utter independence” that Woods talks about is entirely inconsistent with Belloc’s actual desires.  It would be unnatural.  It’s not the way for humans to live.  It’s no good.

Of course, the notion that Belloc is somehow against the division of labor is clearly false, too.  As we saw above, Difference of Occupation is one of the two principal limitations on ideal economic freedom.  It’s part of the natural human way.  It’s not an evil to be shunned, but a good to be preserved.

Last, there’s a kind of strange confusion in the whole construction of the case.  Woods sets the thing up by imagining a bad situation for the Distributist family—one wherein a family can’t sell any of its goods, and hence retreats to its own devices.  Then he compares that to a good outcome in a capitalist economy.  Namely, one from which we can view the “self-sufficient” family’s lifestyle as depressed and intolerable.  So, not from the standpoint of an unemployed mill worker who is at the end of his rope, unemployment benefits over, no jobs in sight, no idea what to do next.  But from the standpoint of the happy-go-lucky, fully employed, financially flush, free person.  But if we’re comparing a failure of the Distributist economy—one where the family in question literally can’t find anyone to trade with!—then shouldn’t we compare it to a failure of the capitalist economy?  That is, to that unemployed mill worker?  What would one prefer?  To be the unemployed mill worker, wholly dependent for his sustenance on an employer who no longer needs him, and so has turned him out?  Or to be the self-sufficient though lonely and isolated and indeed impoverished farm family that nevertheless has plenty to eat, has a place to sleep, and has them securely?  I’d have to go with the latter.

But my point, again, isn’t to try to argue for the desirability of Bellocian economic freedom, simply to try to explain how it differs from self-sufficiency.  Both are good, understood properly, but they’re not the same thing.