Saturday, December 16, 2017

The Worst Supreme Court Justice: Oliver Wendell Holmes (Part I)

Oliver Wendell Holmes was a bigoted, hypocritical, and out of touch progressive who had no business being on the Supreme Court. Holmes was known as the “great dissenter” for his many famous dissents. Maybe his worst decision was when he wrote the majority decision in Buck v. Bell in 1927. In this case the Court upheld a Virginia statute making compulsory sterilization of the intellectually challenged legal. In his opinion Holmes says of the Buck family: “three generations of imbeciles is enough”. Kerri Buck was sterilized by the state following this decision. Holmes and the majority sided with Harry Laughlin and his theories of eugenics. Hitler also followed the theories of Laughlin to make the German race pure. This opinion would be somewhat overruled in Skinner v. Oklahoma in 1941 where the Court ruled that procreation was a fundamental right. This decision alone should make Holmes one of the worst judges of American history.

Buck v. Bell personally offends me. After Dred Scott (Blacks had no constitutional rights), Roe v. Wade (Fetuses have no constitutional rights), and Korematsu (Japanese Americans had no constitutional rights – although temporary), I would then place Buck v. Bell as the worst decisions of all time. That is right, I would place Buck in front of Plessy (created the separate but equal doctrine). I had an Aunt born with cerebral palsy and she had a very low IQ. In her 20s she could not ride in a car without her eyes being covered, or even open a can of soup. No one thought she would amount to anything and would be a burden on the family for her entire life. By her mid-30s after much pain and hard work she was an independent woman. She lived by herself in an apartment and worked in the AT&T mailroom. She even got her driver’s license and drove a Mustang. Unfortunately, she died in mid-40s from breast cancer. Over 7,000 people attended her funeral. She touched so many people with her compelling story of resilience. If she had children, I am certain she would have been a better mother than most. She is missed. To think an elitist like Holmes would have tried to stop a life like my aunt speaks volumes. From what I can see and read, my Aunt was a much better human being than Holmes would ever dream of becoming. Still, for some reason (oh yeah he was a progressive) history views Holmes favorably.

Holmes bigotry towards women goes further than sterilizing them. Before getting into this, we must first understand the type of lawyer Holmes was. This can be explained in his dissenting opinion in Lochner v. New York. This case dealt with work hour limitations for bakers. Holmes is correct that the majority should not have elevated the “freedom of contract” to a fundamental right (although “freedom of contract” is listed in the Civil Rights Act of 1866 which is an interpretation of the Fourteenth Amendment). But historians and Holmes are incorrect to say that all state statutes must be “presumed” constitutional and the “burden of proof” falls on citizens to prove federal and state laws are unconstitutional. Most historian’s side with Holmes and say Lochner was incorrectly decided. But even if you accepted the narrative (rationale) that working in a bakery was a “dangerous” occupation, the law could easily be seen as arbitrary or discriminatory for several reasons. First, the law only focused on one “dangerous” profession and secondly, the law favored big corporate bakeries over “mom and pop” shops since big bakeries could afford to pay workers for 3 shifts over 7 days a week whereas a “mom and pop” shops could not afford to do so. The law drove many small bakeries out of business. So, for these reasons, striking down the New York hour limitation statute could be seen as rationale. Holmes practiced what is commonly referred to as “judicial restraint”. He applies “restraint” from striking down government laws because he presumes a law is constitutional first and foremost and the burden is on the people to prove the law in unconstitutional. Most people do not use the term “judicial restraint” correctly – it is not a good term to define a judge. In his Lochner dissent, Holmes said that the “word liberty, in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominate opinion”. That is some dangerous stuff for several reasons. First, to consider our liberty and the Fourteenth Amendment as “perverted” is troublesome at best and secondly, it is important to note that a majority of Americans had a low opinion of intellectually challenged persons so that must make their liberty guaranteed by the Fourteenth Amendment moot or worthless as Holmes decided in Buck.

In Bailey v. Alabama (1911), the Court struck down an Alabama law (using the Thirteenth Amendment) where blacks that signed work contracts were imprisoned and sentenced to hard labor if they did not honor the contract. It was obvious Southern states were coming up with imaginative and creative ways to keep blacks as slaves and they devised this scheme. Holmes could not see through the guise of Alabama to oppress blacks so he dissented. Holmes said that this law “mainly concerns the blacks does not matter.” Holmes, all the sudden in this case is in favor of the “freedom of contract” by saying “the Thirteenth Amendment does not outlaw labor contracts.” And neither did the Fourteenth Amendment in Lochner v. New York. He also says “But if it is a perfectly fair and proper contract, I can see no reason why the state should not throw its weight on the side of performance.” He also contends the way Alabama set up this scheme (whites did not get work contracts) “it does not make the laborer a slave” since “imprisonment with hard labor is not stricken from the statute books.” If the law only affects blacks, then yes, it is discriminatory and its purpose is to make blacks slaves again under the guise of prison labor. From this, it is obvious to know how Holmes would have sided on Plessy v. Ferguson decided just fifteen years prior. He would have said “separate but equal” was constitutional because that is what a “majority” of Americans prefer. Remember, Holmes was friends with President Woodrow Wilson (another bigot) who segregated federal employees. Buchanan v. Warley decided in 1917 was a unanimous decision. Holmes wanted to dissent and even wrote a scathing dissent but was finally convinced to join the majority. In this case, the Court held that a Kentucky law forbidding home sales to blacks in white neighborhoods was unconstitutional using the “perverted” Fourteenth Amendment. Holmes wanted to side with state “police power” to uphold the law because it would “preserve the peace” by keeping neighborhoods segregated. Or as the defense said in the case “to maintain racial purity”.

Wednesday, December 13, 2017

The End of Economic Freedom (Part VI)

Originally, the Court found First Amendment rights did not apply to commercial speech (Valentine v. Chrestensen, 1942). However, that outcome changed in Virginia State Board of Pharmacy v. Virginia Consumer Council (1976). In this case, the Court held that commercial speech was protected speech. After all, it is extremely difficult to distinguish between commercial and non-commercial speech. This makes perfect sense since the Constitution provides for Freedom of the Press (commercial businesses) which includes advertisements. However, just four years later in Hudson Gas and Electric Company v. New York the Court introduced a new level of scrutiny for commercial speech (intermediate scrutiny). Thus, commercial speech is held to a higher level of scrutiny than non-commercial speech. The most egregious court ruling for commercial speech was the 2002 decision in Nike v. Kasky. In this case, the California Supreme Court found that speech used by Nike to defend itself from allegations that it makes their products in third world country sweat shops was not protected speech. Even if the information is factual, it is best for companies to defend themselves by remaining silent to avoid further lawsuits. This is a move to silence companies from using anti-government or anti-regulatory speech. The bottom line is that companies who seek to prove an economic freedom using freedom of speech rights still face an uphill battle since commercial speech faces a higher level of scrutiny than non-commercial speech.

An interesting case was Daimler Chrysler Company v. Cuno (2006). The Court dismissed the case since the plaintiff had no standing. Thus, the lower court ruling was overturned. This case did not involve economic freedom, but instead a concept known as “competitive federalism”. In this case, the defense argued that states offering favorable tax rates to recruit or lure companies from another state was unconstitutional. Although the Sixth Circuit agreed with the defense, this result was a sham. If this result is correct, then why bother to have states. This opinion implies that all states should have the same tax rates and tax laws. This would destroy federalism (state and federal government) separation of powers in the Constitution. Some say the biggest right for citizens is the right to vote. I disagree, the biggest right for citizens is the right to travel seamlessly throughout the United States. Individuals and companies can “vote with their feet” and move to states that have more favorable laws for social and or economic issues. It would be a huge injustice for corporate and individual rights if competitive federalism is destroyed by the courts. This would further stifle job growth, cause product costs to rise, and eliminate innovation. It would also force companies to send more manufacturing jobs overseas.

The Supreme Court has yet to garner any First Amendment rights to corporate logos or any type of branding. State court cases over logos and branding have been at best mixed. For instance, a Florida statute prevented a lawyer from using a pit bull as its logo. Another speech issue of great importance to corporations is government compelled speech. The government compels corporate speech all the time. Consider the dairy farmers “Got Milk?” campaign. The government compelled dairy farmers to contribute to a fund to run these ads. In Glickman v. Wileman Brothers and Elliot, California farmers sought to stop a compulsory government fund for peaches and plumbs. The Supreme Court held that the government can compel money to promote products even if some farmers sought to use money to personally promote their own products. The Court backtracked a bit in United States v. United Foods when it held compelled government speech (money) for mushroom adds was unconstitutional. But the Court continued its destructive ways on businesses in Johanns v. Livestock Marketing Association when the Court held the government can take money from farmers to promote beef: remember the adds “Beef: It is what is for dinner.”? This was compelled government speech. If A has a better product than B then it makes little sense for A to advertise with B, but this is what is happening under compelled government speech. Compelled speech may take other forms as in the Masterpiece Cakeshop case where the government compels store owners to appease the rights of customers even if they conflict with the rights of store owners. Another future 2018 case, National Institute of Family and Life Advocates v. Becerra, is a case where a California law attempts to compel pregnancy centers to offer patients abortion options. That is analogous to having the government compel McDonalds into selling wholefood options – this would violate their free speech.

Today, economic freedom and the right to work, face a bigger uphill climb than even slavery. Since the adaption of the Constitution, at least half the country thought slavery was unconstitutional and even fought a war to end the barbaric institution. At least half the country thought segregation and Jim Crow laws were wrong until they were finally overruled. Today, both the Left and Right continue to see decisions such as Lochner as being wrongly decided. However, both the Left and Right agree that the Slaughter House cases were decidedly incorrectly but neither side (other than Clarence Thomas) is willing to overrule the case. Both sides believe the Privileges and Immunities clause was improperly taken out of the Fourteenth Amendment in the Slaughterhouse decision. But both sides are leery as to how the other side will interpret the amendment. The Left fears that the privileges and immunities clause will allow the Right to bring back economic freedoms and overturn much of those horrid decisions of the FDR progressive Court. On the other hand, the Right fears that the Left will use the privileges and immunities clause to justify welfare. In any event, the right thing to do is to overrule the Slaughterhouse case and bring back the privileges and immunities clause. The Left has already made huge inroads towards a welfare society even without the clause. Although, I find it inconceivable there is any Constitutional argument to defend welfare with or without the privileges and immunities clause, no one will fight it. Why? Because welfare is about buying votes and it is not really about helping the poor. As we have seen with ObamaCare: Once a welfare program is created it is essentially impossible to get rid of it even if it poorly designed, inefficient, and costing taxpayers more than it should. More and more citizens feel entitled to more money even if they do not deserve it. The sense of entitlement has stemmed from how we have demonized lawful and hardworking individuals and companies. In essence, the poor are poor because of corporations and wealthy individuals. In modern America: The poor are always right and the rich are always evil and wrong.

Saturday, December 9, 2017

The End of Economic Freedom (Part V)

Let’s evaluate a few examples of how the rational basis test works against workers and businesses. In Williamson v. Lee Optical (1955), the Court upheld an Oklahoma law prohibiting Lee Optical from providing a lawful business option to the public (doing what Lens Crafters does today). The Court said the law does not have to make sense to have some rational basis. Licensing is a key impediment to new opportunities for workers. Licensing was held Constitutional in Dent v. West Virginia in 1889 as a means to protect the public welfare from incompetent workers and businesses. In Yick Wo v. Hopkins (1886) the Court held that licensing rules in the California laundry business were unconstitutional because they targeted mostly Chinese Americans and immigrants (even though the licensing regulation had a purpose to protect the public from fires). In New State Ice Company v. Liebmann (1932), the Court correctly held that an Oklahoma law limiting those in the Ice business was unconstitutional. Louis Brandies dissent in this case has gotten much attention because his opinion fosters federalism by saying States should be allowed to experiment with laws without judicial interference. Brandies opinion, moreover, concludes that States should be allowed to find what laws work and which do not. This may be true, but as Justice Sutherland noted in his majority opinion: States cannot experiment with Liberty and the fundamental rights of citizens. But since the New State Ice Company ruling, licensing laws have gotten out of hand. Consider a Louisiana licensing law for florists? How does this protect the public health and safety of citizens? The Louisiana courts held it prevents people from scratching their fingers on wires that hold floral arrangement together. Yes, the Courts merely invented some rational (or irrational) reason to uphold the law. Taxi licensing laws work to exclude others from entering the business by making it cost and training prohibitive. The same can be said about fields such as cosmetology. When the Tenth Circuit ruled in Powers v. Harris that the government can regulate businesses by providing economic benefit to one business at the expense of another, even without a public interest to promote safety or health. In Powers, the Oklahoma government regulated coffin sellers and the court held that those retailers selling coffins over the internet without following licensing and training regulations where in violation of the law. This case is in conflict with the outcome in a similar case in Tennessee (Craigmile). Hence, it may be up to the Supreme Court to rule on which is correct (I am not holding my breath).

When licensing is not sufficient to limit business opportunities and protect preferential businesses then there are methods such as zoning laws. In one California case a person who sold furniture in the city limits was closed down because the zoning laws only provide for the sale of furniture in downtown (protecting the downtown monopoly). In other words, government could “limit competition, raise costs to consumers, and prevent job creation” to protect a monopoly. The Motor Vehicle Franchise Act in Illinois allows government bureaucrats to reject any new franchise car stores from competing with established local car stores. A study of this law showed that customers payed nearly 10% more in states with these types of protective laws. Zoning laws are not much different than environmental regulations that put farmers and companies out of business. Consider the example where the government shut off the water supply to California farmers so the state could protect a fish. In other words, the rights of fish are more important than the rights of farmers and their families. In fact, the government has protected a small wetland from the right of a landowner to build a home or business. I find it odd that liberals will protect dirt, but they will not protect a human being or even a fetus.

The Agriculture Adjustment Act (AAA) was passed by Congress during the New Deal and is still used today to regulate most farming items. It was first found Constitutional when the Court held in Wickard v. Filburn (1941) that Congress could regulate how much wheat a farmer could grow on its land (including how much can be grown to feed their families and livestock). In fact, to drive the cost of farm products up, the government still regulates how much a farmer can grow. Remember, this was during the Great Depression and people were starving. A more modern example of egregious AAA power is the raisin market. Today, the government confiscates up to half of all raisin crops to distribute them as they see fit (to schools for instance). When farmers filed suit saying the AAA violates the Fifth Amendment’s Takings Clause (government cannot take private property without just compensation), the Court held this thievery did not constitute a taking. For a big business raisin farmer, the effects of AAA regulations are much less extreme than on a small raisin farmer. Hence, AAA regulations stifle competition, protect big business farmers, drive up costs for Americans, and stifle innovation and job growth.

Lochner v. New York (1905) is regarded by both the Left and Right as one of the worse decisions in Supreme Court history. Why? Because the Court elevated the fundamental “freedom of contract” right not found in the Constitution. The Court said New York could not place work hour limits on bakery workers because both employer and employee have a freedom of contract over the right to earn a living to support their families. Both the Right and Left are hypocrites because they routinely elevate fundamental rights not found in the Constitution: Privacy, Right to Bodily Integrity, Procreation, Gay Marriage, Sex, Right for Parents to make Decisions in their children’s upbringing, and so on. Besides, freedom of contract and the right to earn a living have always been considered basic rights or privileges and immunities outlined in Corfield v. Coryell and implicit in the Fourteenth Amendment. This country needs more, not less, decisions that protect not just economic rights but all rights. Finally, the Ninth Amendment says that rights not included in the Constitution should not be disregarded or disparaged. Lochner was overruled in West Coast Hotel v. Parrish in 1937 and economic freedom has not seen the light of day since.

The unfortunate nature of Supreme Court precedent is that there are no longer any economic rights such as the freedom of contract or the freedom to pursue a lawful occupation without government interference. Because of this, companies (large or small) and individuals pursuing economic freedom do so under the guise of other Constitutional protections. For example, in Metropolitan Life Insurance v. Ward (1984) the Court held that an insurance tax on out of state insurance policies to protect in state companies was unconstitutional because it violated the equal protection clause of the Fourteenth Amendment. States have upheld statutes that make it illegal for stores that sell “sex toys”. In these cases, stores do not argue economic freedom, but instead they failed to successfully argue the right to privacy found in Griswold v. Connecticut. Using Griswold precedent, the Court in Lawrence v. Texas found the right to sexual freedom between two consenting adults in private. Still, most states and courts will deny people the right to “sex tools” over moral concerns even though those instruments will be used in private.

Thursday, December 7, 2017

The End of Economic Freedom (Part IV)

If a person’s civil rights are violated by the government, the Court will uphold a penalty in the form of compensation (Owen v. City of Independence Missouri). Another example is the internment of Japanese Americans during WWII. The United States would later say that policy was wrong and the government would pay family descendants for damages. However, if your economic or property rights are violated, the government usually contests these cases by saying it owes nothing. A lot is riding on the St. Tammany Frog case the Court will hear this term. In this case, the government wants to confiscate a portion of a person’s property without just compensation to turn it into a frog habitat. Unfortunately, the frog habitat they want to build is for a species of frog that has been extinct from that area for 50 years. What’s worse, to build the habitat the government seeks to chop down trees and maintain the area by burning brush each year. Obviously, the government is exploiting the owner. This is outright extortion. Consider how the Liberal Court has elevated “privacy rights” that has led to “sexual” privacy rights as well as abortion. But the same Court cannot explain why they disparage rights enumerated in the Bill of Rights such as property rights. As Clarence Thomas noted in his Kelo dissent: privacy rights in the home are protected, but unfortunately the home is not a protected property right.

The Court’s changing interpretation of the Contracts Clause has had a huge effect on how government regulates monopolies. The Contract Clause protects (minority) lenders against breach of contract by borrowers (majorities) to repay loans. In other words, any laws which abolish debts would be unconstitutional. The Founders added the Contract Clause in a response to Shays Rebellion where those facing foreclosure took up arms to fight local governments and lenders in Massachusetts. The Founding principles outlined in the Contracts Clause can be found in the famous case Fletcher v. Peck (1810) delivered by Chief Justice Marshall. However, by the 20th Century courts view of the Contract Clause had changed for the worse. In New York, rent control ordinances were put in place to void contractual leases between renter and landlord. In effect, renters were granted below market value rents at the expense of the landlord. This was beginning of the philosophy where “contracts are made subject to the exercise of the power of the state.” Initially the government changed private contracts under cases of extreme emergencies such as in Blaisdell v. Home Building and Loan Company (1933). The Court provided that the state could alter contracts (in this case a lease) for the public good when facing an emergency such as the Great Depression. But the Court would routinely use the Blaisdell precedent to change a variety of private contracts even when there was no emergency of any sort. The Contract’s Clause saw a brief revival in the 1970s (United States Trust Company v. New Jersey and Allied Structural Steel v. Spannaus) but it did not last long. For instance, many municipalities would place wording in contracts with vendors such as they had to adhere to any future laws and statutes. Hence, municipalities could merely change laws to force vendors to adhere to economic regulations which voided previous agreements. The Contract Clause and Ex Post Facto Laws were written to prevent exactly this type of government interference. Under these types of contractual interpretations by the Court, it was easy for government to not only control so called monopolies (lawful companies seen as evil because they are big) but any company. Consider Munn v. Illinois in 1876. In this case, the government changed a rent contract between farmers and owners of silos to store grain. The government decreased the rent silo owners could charge farmers to store grain. Farmers and silo owners were not monopolies, but yet the Court upheld regulatory price control and voided a perfectly good contract. Munn was followed with extensive government contract interference and ticket price control regulation for railroad monopolies. Although Munn declared that government regulation was only acceptable if it affected the public interest, that would change in Nebbia v. New York (1934). In Nebbia the Supreme Court held any regulation that was “rationally related to a legitimate government interest” was Constitutional. In Nebbia the Court upheld a New York law that made it illegal to sell a quart of milk for less than nine cents. The purpose may have been noble: to protect small manufacturers, but this law was flawed for many reasons. First the law had the opposite effect because it stifled competition, efficiency, and innovation in the market place. Secondly, during the Great Depression this law forced the average household to spend more on milk.

The rational basis test used in Nebbia has been used by courts to decide cases ever since this ruling. There are many issues with the rational basis test. First, it places the burden of proof on those fighting the government regulation. This would be analogous to courts holding defendants as guilty until proven innocent. This would place the burden on defendants to prove their innocence. Secondly, judges can make up and invent any rational reason to uphold a law that where not even introduced in the case. Finally, the courts have never defined what a legitimate government interest is or was. For these reasons, courts using rational basis tests very rarely strike down any law or statute. In 1938, the Court put a few restrictions on the rational basis test in United States v. Carolene Products. For instance, a state law affecting minorities, voting rights, and speech would face higher scrutiny. But many fundamental rights such as property, economic freedom, and religious rights faced a rational basis test. For instance, in Cleburne (1985) and Romer (1996) the Court held state laws did not pass the rational basis test because minority groups such as the mentally ill or the gay community would not benefit from the laws. But the Court fails to protect other minorities such as the economic rights for small business owners the same way. In essence, the Court promotes monopolies and less competition by failing to protect economic rights.

Sunday, December 3, 2017

The End of Economic Freedom (Part III)

The biggest disappointment of the Sherman Anti-Trust Act is it does not apply to government monopolies as decided by the Court in Parker v. Brown, 1943. In other words, the government may monopolize an industry or any sect of the economy (including healthcare). The Parker precedent was used to exempt government from the Anti-Trust Act in United States Post Office v. Flamingo Industries and Sea Land Service v. Alaska Railroad. The Local Government Anti-Trust Act of 1984 reversed previous precedent also making local governments exempt from monopoly prosecution. If that is not bad enough, private companies can lobby the government to be immune from monopoly prosecution. It is illegal for companies to collude to form a monopoly, but it is perfectly legal for companies to collude with the government to form a monopoly. In Loewe v. Lawler the Court held the Anti-Trust Act applied to union organizations, but the Clayton Act of 1913 made unions and their price fixing and inflation of wages exempt from Anti-Trust Laws. The American Bar Association (ABA) is a perfect example of a union run monopoly that is immune to the Anti-Trust Laws. The bottom line, the United States handles monopolies completely opposite as how they were handled by early courts in the United States and England. By doing so, this means the United States is violating the freedom of worker rights of millions of Americans who may want to start a business but are not allowed because it conflicts with a government monopoly.

The United States (Supreme Court) handles monopoly cases similar to how they handle Fifth Amendment Takings cases (the government can take private property for public reasons only with just compensation). However, the Court has allowed takings from private citizens for private individual or corporate use throughout U.S. history. In early railroad takings cases (private companies) the Court allowed this action because it could eventually be used for public purposes. But in Kelo v. New London (2005), the Court allowed the taking of private property strictly for private reasons. In other words, takings provide monopolies and the government further advantages over a vast majority of companies and individuals. The Court has expanded the Takings Clause by changing the meaning of “public use” in the clause to mean “public benefit”. During this 2017 term, the Court will hear another important Takings Clause case that deals with patent protections. Congress passed the America Invents Act (AIA) with good intentions. The goal of AIA was to stop patent abuse including patents that are defined too broadly and to eliminate those filings that are not true inventions in need of patent protections. However, like anything the government creates, the AIA has become another politically motivated office and is in many cases denying inventions well deserved patents. The AIA has, of course, made patent filings more expensive and made the filing process longer, convoluted, and cumbersome. But denying patents for political or incompetent reasons is in essence taking property without just compensation since anyone can use ideas that are not protected free of charge. Below is a brief history of key Takings Clause cases.

In 1871, in Pumpelly v. Green Bay Company the local courts found that flooding a citizen’s property while building a canal constituted a taking. In Mugler v. Kansas local courts used the takings clause to protect the public health and safety to uphold a law prohibiting making and selling alcohol without a license. In Loretto v. Teleprompter Manhattan CATV Company the Court held that compensation was necessary for placing cable equipment on private property (even if it occupied a very small space). In Lucas v. South Carolina Coastal Commission, the Court held that denying a person the right to build on private property constituted a taking. However, the Court said there was a difference between “temporary” and “permanent” takings (technically, it should not matter, a taking is a taking). For instance, in Yee v. Escondido, a California law prohibiting mobile park owners from evicting tenants was upheld by the Court. The Court has also upheld “delays” as legal takings without compensation. In the Tahoe-Sierra case the Court held government regulations which delayed building on private property for decades as legal takings. The Court defined regulatory takings guidelines in Penn Central v. New York City. The Penn Central test is bogus because it has never been used successfully by a party to obtain compensation for regulatory takings. The government routinely uses regulation to take private property to avoid paying compensation. Governments use zoning laws, building permits, and other actions to deny or make it monetarily impossible for people and companies to build on privately owned property. Some argue that the Founders did not account for such changes in our laws in the Constitution. That is not true! For example, illegal search and seizure laws have constitutionally adapted and evolved with technology advances in wiretapping and infrared technology. The same should be said of our economic and property rights. These rights should not be disparaged simply because the government has created new types of measures to circumvent the Constitution. Judges cannot make decisions to take a person’s property without compensation simply because the owners plan for the property is lawful but “unreasonable”. That is not for judges to decide. It is also not an excuse that the government simply cannot afford to pay compensation for takings and still achieve its objectives. But this is exactly what is happening. Colorado has a new law that protects the “rights of nature”. This law will surely be abused by liberals to deny economic and property rights. The government’s latest reason to take private property without just compensation is what I call “quid pro quo takings”. In others words, the government will provide a building permit if and only if the owner reciprocates by donating a parcel of land for some government purpose. The Court has ruled against this practice in Nolan v. California Coastal Commission and Dolan v. City of Tigard. But in these cases, the government did not have a good or compelling government reason to take the property. In other words, since the government had no real plan for what to do with the land or that government objectives could have been garnered without a taking, the Court held this process was extortion. For instance, in Dolan the government wanted a small strip of land to capture any water runoff from construction of a new parking lot before it went in the neighboring river. But this objective could have been met by having Dolan construct a parking lot so water will properly drain away from the river. However, as in other types of takings cases, the Court has upheld the “quid pro quo” extortion tactics of the government. In Rockleshaus v. Monsanto the government made Monsanto give up its chemical formulas to obtain a business license.

Thursday, November 30, 2017

The End of Economic Freedom (Part II)

James Madison saw government created monopolies as wicked because they limited the economic freedom for individuals to pursue a profession protected by the government. Madison views of monopoly were adamant during his protest against the creation of a national bank. Madison’s view grew from English Law and the views of Scottish philosopher, Adam Smith. Smith viewed economic freedom “the most sacred and invoidable” rights and monopolies were a “manifest encroachment upon the just rights of both the workman, and those who might be disposed to employ him.” In 1602, the famous English lawyer, Sir Edward Coke, fought a card making monopoly created by King James I in Darcy v. Allen. This court held that a government created monopoly was illegal. Coke would win the rift between King James I when other courts would make similar rulings against government monopolies in Weaver of Newbury’s Case, the Case of the Bricklayers, and Colgate v. Bacheler. It is important to note that the meaning of the word monopoly and corporation was similar in these early English decisions. This early definition of corporation has caused a great deal of the modern animosity that is held toward law abiding companies. For example, a great number of persons still do not agree that Corporations are people and are protected under the Constitution as such. This concept was first introduced by the Court in Santa Clara County v. Southern Pacific Railroad (1886). Corporation own property, can sue and be sued in court, and pay taxes like citizens. Besides, there is no way to protect the rights of investors without treating a corporation as a person.

The Supreme Court was challenged with some monopoly cases under the “Contracts Clause” of the Constitution early in our history. In Dartmouth College v. Woodward (1819) Chief Justice Marshall held that the state could not change a contract charter that would make Dartmouth College a public institution instead of a private one. In Charles River Bridge Company v. Warren Bridge Company (1837), the case involved a contract dispute between those who built the toll road over the Charles River and the State of Massachusetts. Forty years after the Charles River bridge was built the State of Massachusetts made a similar contract with the Warren Bridge company: to build a free bridge parallel to the Charles River Bridge. Charles River Bridge Company felt the Warren Bridge contract violated their monopoly contract with the State citing Dartmouth College v. Woodward (States cannot change a contract or charter). However, Chief Justice Taney said the State of Massachusetts can create new contracts with whomever they want so long as the original contract did not specifically state it was contracting a monopoly to one company. In other words, Charles River Bridge set “precedent that corporate charters would not be read as including a prohibition on competition unless the charter explicitly said so.” In fact, the Taney precedent in Charles River Bridge was used to allow states to revoke monopoly contracts in Butcher’s Union Slaughter House and Live-Stock Landing Company v. Crescent City Live-Stock Landing and Slaughter House Company (1884) and Stone v. Mississippi.

The Slaughter House Cases of 1873 was probably the most important but disastrous monopoly case. In this case, the Court held a Louisiana law to monopolize New Orleans slaughter houses Constitutional even if it denied workers the right to pursue a lawful profession. This case was very damaging because it basically wrote the newly enacted “Privileges and Immunities” clause out of the Fourteenth Amendment. The “Privileges and Immunities” clause was passed to protect the rights outlined in the 1866 Civil Rights Act which echoed those protected rights outlined by Justice Washington in Corfield v. Coryell a few decades earlier. Among those rights was the right to pursue a lawful profession without government interference. However, the Slaughter House decision regressed American law back to pre-Civil War interpretations over economic rights and citizenship disputes.

The Sherman Anti-Trust Act (1890) was originally designed to stop all government monopolies and any public monopolies that used unlawful methods to keep competition out of its economic market. The law was not designed to eliminate or dissolve merely powerful big corporations who were acting legally. But that was exactly what happened. Consider the 1945 anti-trust case against ALCOA (aluminum manufacturer). In this case, Justice Learned Hand said that the Anti-Trust Act was not enacted to control only dishonest behavior, but honest legal behavior as well. Alan Greenspan would call the ALCOA decision as “codemn(ing) [ALCOA] for being too successful, too efficient, and too good a competitor.” After all, ALCOA was not price gouging, in fact, they were providing customers everyday low prices for their products. Since ALCOA was making a profit no one could even accuse them of predatory pricing (to lower prices below profitability margins to push out competitors). The Supreme Court has decided a few predatory pricing cases correctly: Matsushita Electric v. Zenith Radio and Brooke Group v. Brown and Williamson Tobacco. In these cases, the Court held without a viable threat of a monopoly, predatory pricing is legal. Besides, no company could continue predatory pricing for very long without hurting their bottom line. One can ask, is any price cut on a product or service illegal because it causes a customer harm? Of course not, sales are available on a daily basis between competitors. Government regulation of lawful companies simply because they are big is wrong: it stifles innovation, raises prices, and decays job growth for absolutely no reason. ALCOA is a perfect example showing the difference between a lawful public monopoly and unlawful predatory government monopolies.

Even when companies were not monopolies, the government found ways to classify them as monopolies to break them up. In 2003, Nestle tried to purchase Dryer’s Ice Cream. Although this would not create a monopoly for ice cream by any stretch of the imagination, the government classified the merger as a monopoly on “super-premium” ice cream to nix the merger. The government did the same to nix the Whole Foods and Wild Oates Supermarket merger by classifying it as a monopoly on “premium natural and organic supermarkets”.

Saturday, November 25, 2017

The End of Economic Freedom (Part I)

“The pursuit of happiness” in the Declaration of Independence has many meanings including the right for every person to pursue a lawful profession (this is part of economic freedom). I do not think that anyone would argue that our happiness is heavily dependent on how happy we are with our profession. That is why people will change jobs routinely: they are in pursuit of happiness. The United States has been at “At Will Employment” nation since its inception. This means employers and employees are allowed to terminate their work contracts without any reason (except for reasons of discrimination). This concept was outlined in the important Supreme Court decision in Adair v. United States (1908). All this being said, the United States has been moving towards a “job security” nation similar to Canada, Sweden and Norway. Some examples of this can be seen through unionized professions which protect incompetent employees from any type of lawful termination including being lazy and disruptive. It is a huge misconception that job security and the ever-increasing termination laws protecting employees are actually good for employees. Simply put, workers do not benefit from laws and regulation that in the long run make it harder and more expensive for employers to hire. And what’s worse, the inefficiencies and waste from job security programs are passed on to the consumer in the way of higher prices, less innovation, and lower quality products. The rise in the “temp” workforce is a direct response to tougher termination laws and government regulation. Temporary workers provide cheaper options for employers and come with less regulatory employment rules and therefore can be terminated easily without facing lawsuits. Temporary workers do not receive any corporate benefits, but the California Supreme Court changed that in Vizcino v. Microsoft. Hence, courts are onto the corporate “temporary worker” concept and ready to shut down these “at will employment” opportunities.

Tort cases seeking punitive damages from companies costs them about 1 trillion dollars annually or about 5% of the economy. For example, “public nuisances” laws have been used to target tobacco, gun, car makers, drug manufactures, and paint manufacturers. In fact, many of the plaintiffs in these cases have faced no harm or damages from any of these companies. Hence, to many, suing corporations is for a personal benefit, not for the benefit of the public. Frivolous lawsuits are common and most companies would rather settle than face enormous fees by going to trial. California’s Unfair Competition Law has triggered thousands of frivolous lawsuits such as planes not having enough leg room or disputing the service fee for hotel room service. Although many lawsuits are dismissed and Supreme Court cases such as BMW v. Gore limit damages to realistic sums of money, the cost on companies is extreme and most of that cost is going directly to the customers in the form of higher prices and less services. The American Disabilities Act (ADA) is part of the Civil Rights Act. It costs business millions each year to upgrade its buildings to meet this law. I do not have anything against making buildings wheel chair accessible but the government should subsidize what it mandates instead of forcing costs onto businesses and consumers. The ADA has made it impossible to fire anyone because things like laziness, lack of concentration, alcohol and drug addiction, and disruptive behavior are all now considered to be disabilities for which the company must seek treatment options to help employees afflicted with such disorders. But these laws go one-way. For instance, an employee who fails to be responsible by taking his medications or has alcohol or drug relapses still cannot be fired. Discrimination lawsuits are up over 5000% over the last 50 years. Person’s in wheelchairs have filed suit against movie theatres because their seating locations are not favorable. And then there are the discrimination lawsuits against bars that offer benefits for women such as ladies night. Every employee has a disability excuse (there is now a medical term for any type of behavior) and therefore employees resort to discrimination lawsuits against their employer when they are let go. While employers are held to incredibly difficult standards, workers are free to be irresponsible and unaccountable for their behavior in the workforce. When one in twenty dollars of economic activity is due to lawsuits, then we have really entered the age of needing tort reform. We need to reestablish equal employer / employee rights and not one-sided laws protecting unproductive employees at the expense of businesses and consumers.

People probably enter into a hundred contracts every day: anything we purchase, work, our home, our utilities, cable, phones, marriage, schools, parking, and so forth and so on. There are three reasons a court may void a contract: Public policy reasons, unconscionability, and bargaining power inequity. But the courts have used these reasons to void perfectly good contracts where there has been no coercion or exploitation of any of the parties partaking in the contract. Take, for example, bargaining power inequity: Parties in exact equality have no reason to enter into a contract. Hence, there must be some inequity for party A to enter into a contract to obtain more of what party B has. For this reason, many bargaining power inequity rulings are bogus. Public policy reasons lead judges to input personal bias and opinions into decisions. For example, in a Massachusetts surrogacy case (R.R. v. M.H) the Court sided with the surrogate mother who breached her contract and kept the baby. The judge ruled it is not normal public policy to sell babies. I find that odd since it is now normal public policy to abort a baby. This is a judge’s opinion, he is not following any law. Judges also use unconscionability to input biases and personal opinions. Consider the 1965 Washington DC case Williams v. Walker-Thomas Furniture Company. In this case, the court ruled in favor of a person who breached their contract by defaulting on their furniture payments. The court ruled that the furniture store could not repossess the furniture per the contract. In other words, the furniture store was out the remaining amount due in the contract. In this decision, the court had empathy toward the plaintiff because she was poor. But the court’s decision would affect hundreds of poor people living in the same neighborhood negatively. In response to the decision, the furniture store reduced credit levels and raised prices to cover lawsuits where they could not repossess items for breach of contract. California courts have barred companies like Circuit City from using arbitration as a means to solve employee disputes. Instead, courts want companies to face lengthy and more expensive class action suits instead of settling disputes in arbitration. Once again, these actions force companies to cut employment, reduce wages, or pass any increased legal costs onto the consumer.

Tuesday, November 21, 2017

Is this the Era of the Predator?

With all the sexual harassment incidents coming to the forefront in the news, I have been telling people for my entire life that the predator has always existed and will continue to exist. Americans have just looked the other way even when they know it is happening. How do I know this? Because I lived with a predator (stepfather) and even took excessive verbal and physical abuse from my own mother. I will not go into my story to deeply because I have done this before. But I will estimate that there is an abuse of power in one out of every 6 to 8 homes. I see so many women and children that are living in fear. They will not admit it, but it is easy to spot especially if you have experienced the same horrors.

Abuse of power is not a political issue because predators do not discriminate against political ideology. It is not a racial issue because predators will abuse anyone who they perceive is weaker regardless of race or gender. After all, most cases of abuse and neglect happen within the family circle where people are the same color and have the same ideals. Predators are both on the Right, Left, and Center. They are black and white and can even be women. But you would not know this anytime you watch the news about these animals. The media always seems to think it is a Right or Left thing. The same goes for violent criminals and mass shooters. In the eyes of the media they are either conservative or liberal. This is why nothing will ever get done about this dire situation. Both sides are hypocrites and will defend their animal at all cost. I am glad to see that maybe Republicans are starting to get it and may push Roy Moore out. But until both sides get on board, people will continue to abuse their position of power to take advantage of women and children and “weaker” persons. I also consider people who abuse their power for corrupt reasons such as embezzlement or racketeering as predators. After all, they take advantage of taxpayers and employers to steal from their pockets. It is all an abuse of power.

I do not have any particular advice for victims. I can only talk from my experience. Most people do not believe me, but I would not change a thing that has happened to me. That is saying a lot since many of my physical injuries are becoming more problematic as I get older. What’s worse, it is highly likely that the neurological disorder I have was caused through years of abuse. These injuries and the disorder are hard things to live with because they are not only a constant reminder of the past, but they keep in me constant pain. But, I got through it and learned a lot, especially how to survive and deal with adversity. And this is why I push myself so hard to succeed at life, because if I do not, the predator wins. I would have wished for a better life for my mother and my younger brother since they were much more deeply affected by the events during this reign of abuse. This is not to say that I have not been angry or bitter at times in my life, but for the most part I feel no animosity towards anyone anymore. I have forgiven and moved on. If you let it get to you, then the predator wins. If you do not move on and succeed at life, then the predator wins. Predators are no different than terrorists. A terrorist knows they cannot kill every American, but they want you to be nervous and to change the way you live. They want you to live in fear. A predator also wants you to live in fear. They want to scar you to the point you remember them long after they are out of your life. I truly live with the scars from a predator. One orthopedic surgeon told me that I was either hit by a Mack truck or was abused. He came to that conclusion because he noticed I had fractures in unusual places throughout my body. He then said he was absolutely sure I was abused and felt confident in that conclusion because ALL of the fractures where never treated. I walked (limped) around my high school years with broken bones and bruises and nobody, not even a friend ever said anything. I never had food or money for lunch and nobody ever offered me anything. If this is not suspicious, I do not know what is, but teachers, administrators, coaches, friends, and students chose to look the other way. Nobody believes abuse happens, but it not only happens, it is much more prevalent than anyone could ever imagine. We chose to look the other way and then when it comes to the forefront we chose to say that only happened because that guy is a Republican or he is a Democrat. It happened because people can be sick. This problem is much more prevalent than racism. My stepfather was not a racist, he was angry and would hurt anyone (white or black) especially anyone who was smaller than he was.

Until both the Right and Left forget about their political differences and force these animals to suffer severe consequences for their actions, then nothing will be done and it will be status quo as usual. We can continue to live and chose to believe that these types of things do not happen. But they do, and we need to stop protecting them (those that protect them do not realize how they are enabling the predator). If the Left now realizes that Bill Clinton was a predator then they knew decades ago. Nothing has changed. What makes this even more troublesome is that they continued to defend him and Hillary’s defense of him throughout her campaign. This means politics is above violent predatory behavior, and that is sad. Anyone defending a predator should also be held accountable for any crimes committed by the predator since they are complicit in the crime. And anyone who makes false accusations should also be treated as a predator since their behavior is no different. These are a few changes I would like to see in the law.

Saturday, November 18, 2017

Liberal Activism and One-Way Rights (Part III)

Consider how the government has taken control of radio and television broadcast frequencies. The Federal Communication Commission (FCC) controls communication outlets that could have been controlled by the private sector similar to how we deal with private property. FCC regulations are one-way rights and compel owners of communication stations as to what and how to transport information over their airways. There are generally two sides to any communication of information but when the government becomes involved it becomes one way. Just as the FCC has stymied free speech over our airwaves, bullying will further diminish our free speech rights. In another example consider how governments attempts to coerce property owners. Two important cases illustrate this point: Nolan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994). In Nolan, the Coastal Commission expected the Nolan family to provide an easement of property in return for a building permit. The high court saw this as mere extortion since the Coastal Commission offered absolutely no reason for the easement. In Dolan the city of Tigard wanted an easement to stop any water runoff created by a new parking lot before issuing a building permit for Dolan’s plumbing business. In addition, the city of Tigard expected a piece of land to build a bike path because of more complicated traffic patterns before issuing a building permit. Once again, the Court conservative sect laughed at these Tigard city requests because they made no sense. For instance, if Dolan could construct the parking lot to capture water run off then why did the city need an easement? Government intervention over property rights and the use of permits are only a way for cities to recoup more revenues and public lands. What do property owners receive in return from government intervention: lost property and more fees that provide absolutely no reciprocal service to property owners. Liberals would do anything to limit any building on private property at the expense of the environment. Thus, the relationship between government and private property owners is grotesquely skewed towards the government. This is further evident is other cases such as in United States v. Chandler-Dunbar Water Power Company (1913) and United States v. Willow River Power Company (1945). In these cases, the Court denied just compensation to power companies for building dams that shifted water levels and put the power companies out of business. Federal control over waterways is absolute (Phillips Petrol v. Mississippi, 1988), but public interest is far from absolute over waterways. The federal government can reroute waterways (South Carolina v. Georgia, 1876) and can even block a navigable waterway (United States v. Commodore Park, 1945) and somehow violate the takings clause of the Fifth Amendment by taking private property without just compensation. The Court did hold in Kaiser Aetna v. United States (1979) that taking a private pond after the owner created a passage to navigable waters could not be justified without just compensation. However, this is a rare case, in most cases over navigable waters the government can take without compensation. Anyone can understand the implications if the Court did not allow any just compensation to businesses if the government blocked access to businesses on our roadways? The primary purpose of government is to protect rights, not to prohibit or exclude rights.

In the course of United States history: United States citizens have to take a back seat to non-citizens. The unborn take a back seat to pregnant women. Military servicemen have less rights than military combatants. Criminals have more rights than law abiding citizens (especially victims of crimes). The only place where potential victims have more rights is for sexual violence on college campuses where men are guilty until proven innocent. But this college campus example fits the liberal activism narrative to provide one-way rights and preferential treatment to a victimized group of women. But that system breaks down as soon as women lie about the crime. United States citizens even have less rights than the environment: The government routinely refuses people the right from building on their privately-owned property because it may upset nature. The government uses regulation so they can avoid paying people a just compensation to buy the now worthless property from the owners (Takings clause of the Fifth Amendment). After all, who will purchase a piece of property if they cannot use it for anything than what it is? Even welfare recipients are protected from the government, as if the entitlement is not enough! The 1970 case Goldberg v. Kelly held any welfare recipient must be given a hearing before their welfare privileges are removed. This outcome keeps welfare flowing to people who are abusing it at the expense of someone who truly needs the assistance. The 21st century is all about providing preferential treatment to the “victim”. For example, social security is seen as a means to protect the welfare of the elderly for retirement. However, social security takes money from young persons struggling financially and gives it to elder more financially secure persons. This makes sense, right? How is this not a form of discrimination?

Prior to the 20th century government action produced benefits equal to or greater than the burdens of that action by protecting both sides of the contracts (employer / employee, manufacturer / customer, doctors / patients, charities / customers and so forth). In the 21st century the philosophy is “from each according to their ability to each according to their needs” because the government only protects one side of the equation. Consider the Masterpiece Cake Shop case the Court is hearing this term. In that case the laws protect the customers over the owners of small businesses. The owner of the cake shop was found guilty of discriminating against a gay couple for refusing to make a wedding cake because it violated his religious rights. So why should a baker have to violate his religious rights and why aren’t these rights protected just as fiercely as those of a customer (After all, religious freedom is outlined in the Second Amendment)? Also consider how taxes were interpreted by Justice Harlan Stone in Carmichael v. Southern Coal and Coke Company (1937). In Stone’s view taxes are the benefit and privilege of those living in an organized society even if the action creates more burdens than benefits on persons affected by the government tax. In other words, violating individual rights is a privilege to be exercised at the discretion of the government.

Wednesday, November 15, 2017

Liberal Activism and One-Way Rights (Part II)

In the 19th century Charities operated without any fear from liability from the people who used the charities for several reasons. First, persons used their own free will to choose to use a charity and secondly and more importantly, the reward to use a charity grossly outweighed any risk of injury. Many charities today, do not offer medical services because in Tunkl v. University of California (1967) the Court made charities liable to the safety of its users. This may sound logical, but to people who cannot afford healthcare, the risks of treatment outweighs the risks of non-treatment. Because less charities are providing free medical services, Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA, 1986). EMTALA made all hospitals responsible for treating any patient regardless of their ability to pay. Once again, this may sound logical, but the patient bears no responsibility in their free care. Patients must be treated even if they fail to follow medical advice and fail to take medications prescribed at previous free care visits. Patients have to be treated if they are drunk or high or if the ailments are self-inflicted via non-responsible behavior. Patients receiving free care cannot be forced to be a lower priority over a paying customer even if the injury to a paying customer may be worse. Patients cannot even be denied free care if they are disruptive or misbehaving. In fact, many hospitals have reduced the size of their emergency rooms so they do not have to face the liability threat to treat “free” patients. After all, the hospital liability risk for treating a “free” patient is much more than treating a paying patient. The 1994 case the Matter of Baby K outlines the absurdity of the EMTALA Act if anyone wishes to indulge in homework. The bottom line, smaller emergency rooms means less care for anyone in need. Once again, why doesn’t the government subsidize the care it mandates for hospitals? The reason is because liberals view companies (including hospitals) as evil and as the saying goes “the customer is always right”. Which, of course, is not the case. The customer is wrong over 90 percent of the time when it comes to product injury. Drunk drivers wrecking their car into a telephone poll have won more lawsuits than they have lost against car companies. A person who ingested vaginal jelly on toast won an injury settlement when she became pregnant. The bottom line is that modern Constitutional law provides more rights to ignorant and irresponsible persons which in the long run costs responsible and accountable persons higher fees and insurance rates. In the 1907 case, Cotnam v. Wisdom, the court held a patient who received emergency care by a surgeon, who treated injuries on the scene of an accident, was subject to pay for these services even though the patient died. In other words, both patients and doctors had equal rights (irresponsible patient received emergency help, but the patient had to pay for services even if the patient died), which is not what happens today. Patients have more rights than doctors and can sue doctors even when patients refuse to adhere to doctor instructions. In the age of Medicare and Medicaid doctors can no longer afford to make house visits or provide any pro bono services. In other words, medical care is becoming worse due to “one-way” federal and state regulations attacking the medical industry.

Let’s consider a more modern example of bullying. Bullying has always happened in our society (As a youth I was bullied and I regretfully bullied others) but it is getting more attention these days because of cyberbullying. One would think we would grow out of our bullying ways but that is hardly the case. Adults still like to bully other people. Since I voted for Trump people I did not even know thought it was right to bully me and call me a bigot and racist on Facebook. I simply ignored them after suggesting it makes little sense to use the same behavior that you are accusing Trump of abusing. In any event, I understand the harms associated with bullying. But, should bullying be under the control of government regulation? No, even if it leads to any rare instances of suicide. Suicide is a complicated issue and it is impossible to say with certainty that bullying is the lone reason for the suicide. Bullying may have been the tipping point for someone to commit suicide, but was it the only reason? Probably not, suicidal thoughts generally persist for a long period of time prior to the act of suicide. A person who commits suicide obviously has some serious psychological issues and it is part of the responsibility of the ill person to garner more help (and what about parents who neglect warning signs). Bullying laws would target bullies and require no action by those being bullied to avoid conflicts. Bullying laws provide no constructive avenues for people who are being bullied to seek protection and help. And why aren’t there any laws to prosecute parents who neglect to heed to the warning signs of suicide? Why don’t those being bullied simply remove themselves from bullying avenues such as social media? The other question is what constitutes bullying words? I have read some benign remarks that have been considered bullying. I have, from time to time, gone into social media chat rooms for sports information (just to read). Many subject threads start out informative, but the posts devolve into personal attacks having nothing to do with the subject matter. And these squabbles are between folks who root for the same team! Is this bullying? Can both parties of the dispute be seen as bullies? Maybe this is defamation and not bullying? Defamation of character by false factual statements is already illegal especially if the harm costs a person business or some monetary loss. My point is bullying regulation starts a slippery slope because it restricts free speech. Maybe we can hold bullies liable under already maintained defamation laws? In the era of political correctness what constitutes bullying is hard to distinguish since we are overly sensitive and become offended much to easily. Are media pundits bullies because someone finds their views insensitive? Are uses of the race card a form of bullying or fear mongering? My fear is that bullying laws will become a liberal outlet to further diminish free speech. In fact, liberals become bullies on our college campuses to remove speech that they do not agree with. Bullies in the long run will judged by others in a negative way because they violate social norms. Hence, bullies will be punished by society by losing jobs and friends because of their anti-social behavior. Government intervention is not always the answer.

Saturday, November 11, 2017

Liberal Activism and One-Way Rights (Part I)

I was talking Constitutional law with my brother (a liberal lawyer) and he kept reminding me to remember we “now live in the 21st century”. I knew exactly what he meant by that: The Constitution is to be interpreted differently now than in the past. How is the “modern” Constitution to be interpreted according to liberals? My brother is a typical liberal because he believes the Constitution should provide more rights and preferential treatment to certain groups of people at the expense of others (even though the Constitution makes no mention of gender, ethnicity, or socio-economic status). That is right, the modern liberal interpretation of the Constitution is not much different than the slave owner view of the Constitution prior to the Civil War. Unfortunately, this type of discrimination is exactly what is happening in our society. This is the “Consequentialist” view of the Constitution where economic progress and social welfare are more important than individual freedoms (equal rights for all). In this text I will examine several examples of how liberal activism is used to protect certain groups of people and why it is nothing more than another form of discrimination. This liberal political philosophy of more rights to one victimized group of people, or what I like to call “one-way rights”, fits perfectly into the overall liberal activism agenda or goal: To pit every demographic group against each other (especially against white-men). The “war on women” and race baiting are common themes in liberal politics and it feeds the narrative that women and minorities ought to have more rights than white men, not just equal rights.

Take, for example, the employer / employee relationship. In the 19th century state and federal courts protected both employers and employees from contract breach. In Stark v. Parker (1824) the court held an employee breach of contract did not qualify the employee the right to collect money for work already completed. Conversely, the court held if the employer breached the contract then the employee in that case would be entitled to full restitution of the contract value. In a similar case in 1834 (Britton v. Turner), the court held that the employee was entitled to money for work completed minus damages for the employer to find a replacement. In both of these cases, although decided by vastly different opinions, the courts recognized the value of both the employee and employer relationship by their ability to uphold their end of work contracts. In Stark the employee received no monetary benefit while in Britton the employee received some monetary benefit minus damages for breach of contract. Under no circumstances did employers or employees receive full monetary benefits for breach of contract. By the 20th century the Court viewed the employer and employee relationship much different. That is because most government laws are now written to protect only the employee from discrimination or wrongful termination. But what is to stop an employee from terminating his employment status for discriminatory reasons? For instance, an employee may end his employment because his boss is Jewish, a female, or old. In other words, under modern law the employer / employee relationship is a one-way contract to protect the rights of the employee and not those of employers. Why? Under all circumstances Liberals view corporations as evil and workers must be protected from that evil. This is, of course, a flawed oversimplification view of corporate America. After all, it is the employee, not the employer, who commits acts of atrocity (now known as work place violence). Work place violence makes it sounds as if violence is justifiable in the workplace otherwise it would be called for what it is: murder, assault, robbery, etc. If employers can be sued for their deliberate failure to offer jobs to workers then why can’t workers be sued for their unwillingness to accept job offers? This question merely highlights the fault of one-way discrimination laws.

If employers do wrongfully discriminate against employees than violating companies will be punished via the social norms of society that will force them to lose business and over time go bankrupt if they do not correct their bigoted ways. Besides, discrimination laws achieve one outcome: further discrimination. For instance, protecting employers from wrongfully dismissing workers because of age discrimination merely keeps older white employees on the payrolls at the expense of younger females and diverse candidates. Therefore, age discrimination policies merely discriminate against other persons. Diversity and affirmative action policies discriminate against more qualified candidates. My point is that laws for the purpose of protecting employees may protect some workers while discriminating against others. Hence, it is better for the government to butt out of the business of making discrimination laws and let the employer / employee relationship function as it did in the 19th century (fairly). Let’s examine one modern example. I do not care if NFL owners have colluded to keep Colin Kaepernick out of the NFL. If Kaepernick’s non-work-related antics are costing NFL owners money, then they have every right to blacklist him. This is not discrimination, it is what the Godfather would say “it is not personal, it is just business”. Remember, those who truly discriminate will be punished by society without government intervention, coercion, and discriminatory regulations.

Then there is the manufacturer and customer relationship. In the 19th century the courts viewed both sides of the manufacturer and customer relationship equally. In the 1858 case Smith v. Brady the court held a customer could refuse to pay for services if a builder violated the contract specifications. Conversely, however, the court held had the customer breached the contract in any way the builder would have recouped all payments. However, by the 20th century in Hennigsen v. Bloomfield (1960) and Greenman v. Yuba Power (1962) the Court rejected any contractual defenses in personal injury cases. If persons were injured by products for using them incorrectly then the manufacturer was still responsible for damages under most interpretations of the law. These cases, once again, made the manufacturer the unequal of the customer. Why? Well, once again, liberals hate those evil corporations who are always in the wrong. Consider a simple example of rent control laws which provide preferential tenants rents at a fraction of real estate values at the expense of the landlord. Would rent control be democratically approved if the burden fell on everyone in the district to contribute to the rent control system? And why doesn’t the government subsidize the landlord for the regulation it mandates? The answer to these questions are simple, every landlord is seen as rich and therefore they are all evil and must pay for their greed. The Left creates a narrative of stereotypes to punish certain classes of citizens under one size fits all government regulation. Of course, anyone with a lick of commonsense realizes all landlords are not wealthy, but the state will treat them all as multi-millionaires.

Thursday, November 9, 2017

Maybe Trump Chaos is a Good Thing?

I do not like Trump not just because he is an obnoxious egomaniac, but because most of his policies are straight out of the Democratic playbook. He is not a true conservative. That being said, I would vote for him again for a few reasons. First, Trump delivered on his federal court appointees (including the Supreme Court) and that was the primary reason I voted for him in 2016. The Supreme Court could still be a major reason to vote Trump again in 2020. Secondly, I have another reason for voting for Trump in 2020: Chaos. I believe Trump is a product of Republican and Democratic failure to deliver not just politically but for the overall mess created in Washington including massive pay for play and corruption. Washington is now in Chaos and because of that we may finally start to “drain the swamp” of the many bad characters who are robbing the American public blind.

It truly hurts to turn on the news and attempt to watch trustworthy news outlets whom seemingly play politics with every story and situation and even make up news stories (which believe it or not is Constitutional). But one thing is certain, if Trump was never elected president then the political status quo would have continued in Washington. Instead, both irate Republicans and Democrats are demanding answers to Russian Collusion by appointing a special counsel: Robert Mueller (remember not one independent counsel was appointed to investigate anything under Obama). This has led to the arrest of corrupt lobbyists including former Trump campaign manager Paul Manafort (not for collusion, but for corruption). We have also learned that Manafort also has ties to liberal lobbyists such as Clinton campaign chief, John Podesta’s brother Tony. We have also learned that Clinton took over the DNC and worked with top Democratic officials to win the nomination by rigging the Democratic primary over Bernie Sanders. There may not have been any Collusion between Trump and the Russians to overturn the 2016 election and any Russian interference (via social media) did nothing to change the outcome of the election. But if Sanders won the Democratic nomination he probably would have defeated the unpopular Trump in the general election (although Sanders is not free from corruption claims himself – his wife used his celebrity to obtain a huge loan for a college she ran and promptly defaulted on the loan and college went belly-up). Hence, Clinton and DNC collusion changed the outcome of the election, not any type of Russian interference.

The Trump election also helped us to learn about the corrupt Uranium One deal between the U.S. and Russia under the Obama administration. Many of the players in the Uranium One scandal include the same cast of characters including Robert Mueller, James Comey, Hillary Clinton, Bill Clinton and Barack Obama. Maybe we can learn the Truth behind the fake Trump Dossier and about how that document was used by the Obama administration to spy on a political opponent. Hopefully, under Trump we will get answers to other Obama scandals including IRS targeting, Media targeting, Benghazi, Fast and Furious, Clinton’s email server and others. If people are never held accountable for their corrupt behavior, that behavior will continue to fester in Washington.

The chaos of the Trump administration will hopefully do a few things. First, it will expose those media outlets and personnel that have a political agenda and who generate fake news. Secondly, it will “drain the swamp”: of both Republican and Democratic criminals in Washington. Hopefully, it will hold those guilty of collusion and corruption accountable and sentenced to lengthy jail sentences. If some main stream political Republican or Democrat is elected in 2020, then we may never find answers to many political scandals and it would be back to politics as usual in Washington. Unless Trump is elected and unless people are held accountable for our quid-pro-quo system of politics then nothing will ever change in Washington. Although I am not a fan of chaos, there needs to be some chaos to put pressure on the fraudulent players in Washington. I doubt political discourse will ever improve in this country, but draining the swamp is the first step (including the media). And when I speak of chaos, I only speak of the both political and media hysteria. The country can function under such forms of chaos. For instance, despite the Trump chaos, the markets and economy are rallying.

Saturday, November 4, 2017

Is Money Free Speech? (Part II)

In Davis v. Federal Election Commission (2008) and Arizona Free Enterprise PAC v. Bennett (2011) the Court held that the governmental compelling interest to “level electoral opportunities for candidates of different personal wealth” was not a reason to limit free speech. All candidates have different “strengths”. Will the government regulate other strengths such as name recognition of a celebrity running against a no-name commoner?

In Citizens United v. Federal Election Commission (2010), the Court overruled McConnell where it abridged corporate free speech and Austin v. Michigan Chamber of Commerce (1990) in its entirety. In Austin, the Court held that corporate free speech restrictions were constitutional because “corporate wealth can unfairly influence elections.” However, media corporations have the same power but they are exempt from Austin ruling. In Citizens United the Court held that laws which burden political speech are “subject to strict scrutiny.” The First Amendment was created to protect “political speech” so citizens and groups could speak freely without the threat of being restrained. The Court in Citizens United applies the standards held in Buckley and Bellotti. In First National Bank of Boston v. Bellotti (1978) the Court held that corporations have the First Amendment right to make contributions to ballot initiatives. Bellotti said political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” Justice Kennedy asserts if Austin was correctly decided then “the Government could prohibit a corporation from expressing political views in media beyond those presented here, such as by printing books.” Kennedy also says that Austin is flawed because the “majority undertook to distinguish wealthy individuals from corporations” since both can have “unfair input” on elections. Also “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech.” Austin also brings forth another government “compelling interest”: the anti-distortion rationale. Kennedy says that the “anti-distortion rationale” is a “dangerous and unacceptable consequence because Congress could ban political speech of media corporations.” A corporation that owns a media company would have preferential treatment over other companies that the First Amendment does not distinguish between. Austin is also discriminatory because it “prevents the distorting effects of immense aggregations of wealth” and it is “not aimed at amassed wealth.” Another compelling government interest brought up in the Citizens United case was to “protect dissenting shareholders from being compelled to fund corporate political speech.” Corporations, like the U.S. political system are democratic in nature, and a minority of dissenters lose out to the majority all the time. Besides, shareholders can sell if they do not like the corporate message or feel they wasting profits. In Bennett, the dissent says that “public funded” elections are acceptable even though 100% of the public will not like the candidates (this obviously conflicts with their “protecting dissenting shareholders” compelling interest). Another compelling interest brought forth by the government is the fear that “foreign individuals” working for U.S. corporations could “influence our Nation’s political process.” This argument also does not hold muster since a vast number of American citizens have multiple citizenships and or even live overseas but their right of free speech is not regulated even though they may have opinions of foreign influence. Also, a large majority of Americans are first generation immigrants who still have loyalty to their mother nation, but they are not restricted in their freedom of speech.

The dissenters in Citizens United try an “originalist” argument claiming that the Founders never intended the First Amendment to cover corporations. They contend that the Founders disliked corporations. This is true, Thomas Jefferson, like many Republican founders favored agriculture, but would they dislike the many agriculture companies that exist today? This did not stop the government from creating a National Bank and other companies over the centuries that would aid in carrying out its enumerated powers for the People of the United States: Amtrak, Conrail, Tennessee Valley Authority, and a number of financial, insurance, and retirement companies to name a few. Why is acceptable for the government to own corporations free from speech regulation while private sector companies are held to a higher standard of regulation and free speech rules? It was shown earlier that the Court has found on numerous occasions that corporations have constitutional rights. And let’s not forget what the First Amendment says: “Congress shall make no law abridging the freedom of speech.” The Amendment makes no distinction between individual, groups, organizations, unions, or corporations. They only way the dissenters have an argument is if the First Amendment text does not say what it means or mean what it says. The dissenters even go as far to hint that “newspapers” and the media did not have First Amendment rights in the founding era.

The dissenters in Citizens United argue that Federal Commission regulations do not account for a ban on corporation free speech because they can form PAC’s. However, PAC’s are highly regulated and are not ideal for midsize or smaller companies. I will not place the full BCRA rules for corporations in this writing (they can’t reach more than 50,000 people, campaign finance money cannot come from the company treasury, they can’t broadcast messages, and there is more) but if you read the entire list of restrictions it is essentially a ban on corporate speech.

Corporations are people and money is free speech and this is defended by over 200 years of precedent. People and corporations use money every day for free speech: advertisements, marketing, gifts, travel, pamphlets, books, blogs and so forth and so on. Where would people be without corporations? Corporations may have been a bit foreign to our founders, but by the 19th century corporations have been deep rooted in American history and tradition. Corporations coupled with people have been successful in fighting evil around the world. Without corporations, we could be speaking German. Thus, corporations are just as important to our freedom as are people. This should not be forgotten.

Thursday, November 2, 2017

Is Money Free Speech? (Part I)

Is money free speech? The answer to this is yes for numerous reasons I will outline in this text. Freedom of speech covers much more than speech, it covers certain conduct that may be seen as an expression. For instance, the Court has held that flag burning (Texas v. Johnson, 1989) and burning a cross in the yard of a minority family (R.A.V v. St. Paul, 1968) are constitutionally protected by free speech. Speech, regardless of how bigoted or hateful it may be, is tolerated under the Constitution. This is not to say a crime had not been committed in these cases, but a conviction cannot entail limiting free speech. The court has found that speech may be limited if the federal or state government has a “compelling interest” to do so. In United States v. O’Brien (1968) the Court upheld a federal statute that made it a crime to burn a draft registration card. In this case, the Court found that “Congress power to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping” and the “many functions performed by Selective Service cards” established beyond a doubt that “Congress has a legitimate and substantial interest in preventing destruction to draft cards.” Free speech may be restricted if the expression “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Brandenburg v. Ohio, 1969). Free speech can also be restricted if there are “fighting words” or words that are “likely to provoke the average person to retaliation, and thereby cause a breach of the peace” (Chaplinsky v. New Hampshire, 1942). We know people use money all the time in their conduct to express themselves through things they buy, especially gift for others. Is this enough to make money free speech? Sure, especially since money is very rarely seen as “fighting words” or “inciting lawless action”. If there is no compelling government reason then a “tie goes to speaker, not the censor” (Wisconsin Right to Life v. Federal Election Commission, 2006).

Money as free speech comes before Supreme Court usually in the form of congressional campaign finance laws. Buckley v. Valeo (1976) was the first Supreme Court challenge to Congressional campaign finance laws. The Court found that the $1,000 limit to campaigns by persons was legal because of the compelling interest the government was trying to prevent in form of corruption or a quid pro quo appearance of abuse: “to limit the actuality and appearance of corruption resulting from large individual financial contributions.” While the court held provisions that capped “contributions” constitutional, they found limits on “expenditures” unconstitutional: “the concept that government may restrict speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure the widest possible dissemination of information from diverse and antagonistic sources and to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” In McConnell v. Federal Election Commission (2003) the Court heard challenges to the McCain-Feingold “Bipartisan Campaign Reform Act of 2002 (BCRA)”. The Court upheld most of the “free speech” limitations placed by Congress in the Act by contending that money is not free speech, pooling money is not free speech, and speech by corporations can be abridged. In his dissent, Scalia takes up all these points and wins the argument. Scalia points to four cases where “an attack on the funding of speech is an attack upon speech itself.” “In Schaumburg v. Citizens for a Better Environment (1980), we struck down an ordinance limiting the amount charities could pay their solicitors. In Simon & Schuster v. Members of NY State Crime Board (1991), we held unconstitutional a state statute that appropriated the proceeds of criminals’ biographies for payment to victims. And in Rosenberger v. Rector and Visitors of University of Virginia (1995), we held unconstitutional a university’s discrimination in the disbursement of funds to speakers on the basis of viewpoint. Most notable, perhaps, is our famous opinion in New York Times v. Sullivan (1964), holding that paid advertisements in a newspaper were entitled to full Amendment protection.” In other words, the Court had a history of protecting money as free speech. As for the pooling of money not being speech Scalia points to the Declaration of Independence: “And for the support of this Declaration, we mutually pledge to each other our Lives, our Fortunes, and our Sacred Honor.” If pooling money is not constitutional then “Congress would be empowered to enact legislation requiring newspapers to be sole proprietorships, banning their use of partnerships or corporate form.” As for abridging corporation’s money as free speech, the Court has long recognized corporations as people. Although corporations cannot vote or run for office, they are taxed and own land. Here is a list of several cases where the Court has held the constitution applies to corporations: Bank of United States v. Deveaux (1809), Louisville, Cincinnati, and Charleston Railroad v. Letson (1844), Marshall v. Baltimore and Ohio Railroad (1853), Santa Clara v. Southern Pacific Railroad (1886), Smyth v. Ames (1898), Hale v. Henkel (1906), Russian Volunteer Fleet v. United States (1931), United States v. Martin Linen and Supply Company (1977), Citizens United v. FEC (2010), and Burwell v. Hobby Lobby (2014).

The Left would love to create an Amendment to the Constitution to end corporate personhood, but then they cannot be taxed or the government cannot seize property for eminent domain reasons. Is that truly what the Left wants? As Justice Thomas correctly points out in his McConnell dissent “why the bribery laws are not sufficient” to overcome the concern of corruption and quid pro quo actions in our election process does not make sense? Thomas also points out “Media corporations are also influential” over elections. Newspapers routinely endorse local and federal candidates to “influence people”. If the press is “too influential” what is to stop Congress to regulate our press from writing “biased” or “slanted” news stories. Besides, McConnell was truly about protecting incumbents as well as stopping “attack ads” on TV. Sure, we are tired of “attack ads”, but like it or not that is free speech protected by the First Amendment. Corporations considered as people and money concerns over free speech only seems to an issue in campaign finance, the Court does not seem to question these principles in any other type of case.

Sunday, October 29, 2017

The Evolution of Substantive Due Process (Part II)

In Skinner v. Oklahoma in 1942 the Court added the fundamental right of procreation to the list of substantive due process rights. In 1952 in Rochin v. California the Court declared a fundamental right “to bodily integrity” to be among our unalienable rights. In 1954, the Court held that the “separate but equal” doctrine was unconstitutional for education (although an argument can be made that the Fourteenth Amendment was designed, in part, to stop segregation) – (Bolling v. Sharpe and Brown v. School Board); in 1967 the Court held that interracial marriage was constitutional (Loving v. Virginia); in 1972 in Eisenstadt v. Baird the Court held the right to “contraception” was fundamental; in 1973 the Court held that abortion should be added to the list of fundamental rights (Roe v. Wade); and most recently the Court held that that gay sex (The Court in Lawrence v. Texas did not say homosexual sex is a fundamental right, but it overruled Bowers v. Hardwick which said homosexual sex was not a fundamental right, so they implied gay sex is a right) and gay marriage (Obergefell v. Hodges) were elevated to fundamental rights. The Court has also held that personal control over medical treatment and physical confinement are fundamental rights.

In the 1961 case Mapp v. Ohio that Court held that the Fourth Amendment’s illegal seizure clause applied to the states (not just federal). However, in what seemed to be an innocent decision, the Court twice used the words “right of privacy” to generalize the rights protected under the Fourth and Fifth Amendments. This would become important when the Court decided Griswold v. Connecticut in 1965. The Court would elevate the “right to privacy” to a fundamental right in Griswold. However, privacy is a very broad and ambiguous right. To hold that all forms of privacy are protected led to the subsequent decisions that would allow abortion, homosexual sex, and gay marriage be elevated as fundamental rights. All private sexual behavior is not free from restrictions in our liberty (incest, prostitution, rape, etc. are subject to state police power).

There have been a few attempts by the Court to control and better define what constitutes a fundamental right. In the 1934 case Snyder v. Massachusetts the Court said rights are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” In 1937 the Court called a fundamental right as one that is “implicit in the concept of ordered liberty” in Palko v. Connecticut and in 1977 the Court held a fundamental right as one “deeply rooted in the nation’s tradition and history” in Moore v. East Cleveland. In 1997, in Washington v. Glucksberg the Court would not go as far as allowing “the right to die” which encompassed “assisted suicide” as a fundamental right. In the decision Chief Justice Rehnquist said we must “exercise the utmost care whenever we are asked to break new ground in this field” of fundamental rights. Rehnquist and the majority would hold that “the right to die” and “assisted suicide” is not “consistent with the Nation’s history and constitutional traditions.”

The 2000 case between Troxel v. Granville was interesting. The majority held that parents had the fundamental right to make decisions concerning the care of their children. That is not an overly surprising decision based on how Constitutional Rights are handed out like candy, but what is interesting is Scalia’s dissent. Scalia holds that “a right of parents to direct the upbringing of their children is among the unalienable rights”. But Scalia shows restraint from using the Ninth Amendment to elevate this right. Scalia says about the Ninth Amendment “even farther removed from authorizing judges to identify what they may be (rights)” when discussing what fundamental rights to elevate. Hence, other than restraint, there is nothing really stopping the Court from elevating fundamental rights for political reasons. Scalia, even if he thinks something is a fundamental right, he will not elevate it unless it is clearly written in the Constitution. Sure, the Court has placed some “deep rooted in American history and tradition” considerations for elevating fundamental rights but that did not stop the Court from elevating gay marriage (hardly an American Tradition) to a fundamental right. Some say the Court elevated “marriage” as the fundamental right, but gay marriage did not meet the definition of traditional marriage. Hence, the fundamental right established by the Court was “gay marriage”.

So there you have it, a brief history of fundamental rights incorporated in our constitution via the interpretations of a few judges. I find it odd that the freedom of contract is no longer recognized as a fundamental right, but abortion and even the right to have contraception remain fundamental. The Court practiced some restraint in Glucksberg and a few other cases. In Flores the Court rejected several fundamental rights including “freedom from physical restraint” and “the right of a child to be released from all other custody into the custody of its parents, legal guardian, or even close relatives.” In Gonzalez v. Raich in 2007 a district court refused to elevate “the right to use marijuana to preserve bodily integrity, avoid pain, and preserve life” as a fundamental right since only 10 states had medical marijuana laws (not enough to say it is deep rooted). Raich can be overruled since many more states are passing medical marijuana laws over the past decade.

Thursday, October 26, 2017

The Evolution of Substantive Due Process (Part I)

The Substantive Due Process doctrine is lawyer jargon and in essence it is when the Supreme Court reads “fundamental rights” into its decisions that are not located anywhere in the Constitution. These “fundamental rights” are inferred from either the Ninth Amendment or the “due process” clause of the Fourteenth Amendment. Actually, “fundamental rights” should be guaranteed through the “privileges and immunities” clause of the Fourteenth Amendment but that clause was essentially (and incorrectly) written out of the Constitution in the Slaughter House cases in 1873 (Just five years after the Fourteenth Amendment was added to the Constitution). To understand which rights are “fundamental” or privileges please read my article: “The Best Non-Supreme Court Decision: Corfield v. Coryell”. Coryell coupled with the Civil Rights Act of 1866 best outlines these unalienable or fundamental rights for two reasons: Coryell gives insight into the thoughts of our founding fathers who adopted the Constitution and the Civil Rights Act of 1866 gives insight into the purpose behind the Fourteenth Amendment.

The first Substantive Due Process decision by the Supreme Court was the infamous Dred Scott case in 1857. In this case, the Court held that African Americans have no rights (even free blacks) under the Constitution. Obviously there is no such statement in the Constitution, the Constitution is “color blind” as Justice Harlan said in his dissent of Plessy in 1896. Hence, every future substantive due process decision has the dubious distinction of being a principal or doctrine founded under Dred Scott.

The doctrine disappeared for about a half-century until 1905 in Lochner v. New York where the Court held that our fundamental rights included the “freedom of contract”. The Court struck down a New York statute that tried to mandate a 10 hour work day and 60 hour work week for bakers. The Court held that an employer and employee had the right to agree to any contract for work hours. Of course, “freedom of contract” is nowhere to be found in the Constitution, but it can be found in the Civil Rights Act of 1866. And “freedom of contract” is deep rooted in American history and tradition. The Lochner Era Court would use the “freedom of contract” to strike down economic regulations by state governments for 30 years. The concept of “freedom of contract” would be overturned in 1937 in West Coast Hotel v. Parrish when the Court upheld work hour limitations for women and children. Of course Parrish was discriminatory because it made it almost impossible for women and children to find work since no such limitations were placed on men. However, the Court had a history of being discriminatory against women and quite frequently used “expert” testimony and data prepared by men to show that women were “inferior” (See Bradwell v. Illinois or Mueller v. Oregon).

The Lochner Era Court had two other significant decisions: Meyer v. Nebraska (1923) and Pierce v. Society of the Sisters (1925). In Meyer the Court held “Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” In Meyer the Court struck down a law that prohibited the learning of a foreign language before the age of 10, but in doing so it elevated numerous “fundamental rights” not found in the Constitution. In Pierce the Court held the fundamental right for parents and guardians of children to “direct the upbringing and education of children under their control.” Many of these fundamental rights outlined in Meyer and Pierce are still law today.