Sunday, December 31, 2017
Can the Fairness Doctrine be renewed? I do not believe so. The Federal Communications Commission (FCC) had long required that broadcast stations (both radio and television) to tell both sides of issues. The Reagan administration stopped the practice of the Fairness Doctrine but Democrats have threatened to bring it back. The Fairness Doctrine was founded in the early days of radio and was never challenged until 1969 in Red Lion Broadcasting v. FCC. The Warren Court upheld the Fairness Doctrine and that precedent would have to be overturned and that will not be an easy task. First, let’s examine what the Court said in Red Lion and secondly, let’s evaluate a similar case decided just five years later (1974) by the Burger Court: Miami-Dade Herald v. Tornillo. First, let’s look at the logic behind the Red Lion decision. In this case, during a 1964 radio broadcast, WGCB in Pennsylvania had a 15 minute piece criticizing Fred J. Cook and his book: Goldwater: Extremist on the Right. The broadcast essentially labeled Cook as a communist sympathizer. Since this “constituted a personal attack on Cook; Red Lion had failed to meet is obligation under the fairness doctrine to send a tape, transcript, or summary of the broadcast to Cook and offer him reply time.” While Red Lion contested “the First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they chose from ever using the frequency.” However, the Court held “Congress unquestionably has the power to grant and deny licenses and eliminate stations” that do not conform to the fairness doctrine. Furthermore “No one has a First Amendment Right to a license or to monopolize a radio frequency; to deny a station licenses because ‘the public interest’ requires it ‘is not a denial of free speech.’” Moreover, the Court held “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” “There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all.” Finally, “In view of the scarcity of broadcast frequencies, the Government’s role in allocating those frequencies, and the legitimate claims of those unable without government assistance to gain access to those frequencies for expression of their views, we hold the ruling at issue here is authorized by the statute and constitutional.” Secondly, let’s evaluate the logic behind the Tornillo decision. In this case, the issue at hand was whether a Florida Statute “granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantees of a free press.” The Miami Dade Herald refused to publish a response by Tornillo to an editorial written by his opponent weeks earlier. First, the Court is concerned over the scarcity and monopolizing of the media: “The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspaper’s being owned by the same interests which own a television station and a radio station are important components of this trend toward concentration of control of outlets to inform the public.” Furthermore “The monopoly of the means of communication allows for little or no critical analysis of the media.” The Court genuinely seems concerned about “The abuses of bias and manipulative reporting.” However, “faced with penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right of access statute, editors might conclude that the safe course is to avoid controversy.” Therefore “electoral coverage may be blunted or reduced.” The Court held strongly that this statute is unconstitutional “Even if a newspaper would face no additional cost” to write opposing views. The Court finally held that “how government regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press” is unfounded. These two case have similarities. First, it is important to note Tornillo did not cite Red Lion. Secondly, both are concerned about the scarcity and monopolizing of media. However, the press is much more scarce and monopolized than the broadcasting industry but the Court found it did not matter it the press case, but it did matter in the broadcast case. That is truly conflicting and could be used to stop the renewal of the fairness doctrine. Thirdly, the fairness doctrine is discriminatory if it applies to broadcasts, but not the press or blogs. Arguably, there is no better place to tell both sides of issues than in our schools (not just in the news), but that is not what is happening. Discriminatory policies can hardly be held constitutional. Finally, I turn to quote by Justice Thurgood Marshall who wrote the majority opinion in Stanley v. Georgia (an obscenity case – within the confines of one’s home). Marshall said governments “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” Isn’t this what the government is trying to do in the fairness doctrine? People can turn to whatever broadcast they want, if they do not like it, they can change the station. The government does not have to dictate what is broadcast.
Thursday, December 28, 2017
It is really starting to look as if the FBI used the Trump Dossier to issue a FISA warrant to investigate Carter Page, a Trump campaign official. This is troubling for many reasons. First, the Trump Dossier was never corroborated by the FBI. According to McCabe’s recent testimony the only truthful statement in the Dossier is that Page travelled to Russia. Second, the Dossier was paid for by the Clinton Campaign and the DNC making it highly prejudicial. Third, it appears that many of the characters involved in the Dossier were anti-Trump and pro-Clinton (social media activity has enforced these claims). Fourth, it is looking more like the Dossier was the FBI and Democrat’s “insurance policy” to prevent a Trump presidency. Fifth, FISA warrants against American Citizens can only be issued if a crime has been committed – thus far Page has not been charged with any crime. Finally, this whole mess is a Constitutional issue of monumental proportions for many reasons. The fact that a political party can collude with intelligence agencies to influence or change an election is extremely alarming. While it would be troubling if Republicans colluded with Russians to undermine our election process, it is just as troubling if Democrats colluded internally to do the same. We know that the DNC colluded with the Clinton campaign to push out Bernie Sanders. Hence, it is not beyond the political realm that the DNC would do the same against Trump. The Democratic primary system violates everything that Democrats claim they stand for in our Democratic system: One Person, One Vote. In Reynolds v. Simms (1962) the Court held that all seats within houses of state legislators must be determined only through population (in other words, every district must have the same population). The DNC (and the RNC to some degree) violates these democratic principles. For instance, when the winner of a state garners all the delegates is hardly democratic. Furthermore, the DNC super delegate system proved the fix was in. Clinton won a 95% plurality of DNC Super Delegates. Of course, Clinton did not win anywhere near 95% of the vote nationally. Yet, hypocritical democrats complained that Trump should not be President because he did not win a plurality of the popular vote. Clinton was not nominated through anything that resembles a democratic process. I do not agree with Reynolds v. Simms, but it is the law and Democrats fail to follow the principles of this opinion. Democrats have supported the concept of “privacy” ever since the Supreme Court has elevated that right in Griswold v. Connecticut (1965). Liberals have used privacy to protect everything from contraception and abortion to gay marriage and gay sex. The Court will also use “privacy” in a recent case, Carpenter v. United States, to prevent law enforcement from obtaining GPS data off phones without a warrant. However, Carpenter is not a “privacy” case, it should be a “property” case (authorities cannot trespass [phone] on private property without a warrant). But for some reason, the Court does not like to use enumerated rights but instead relies on elevated ones. In any event, when Bush was President the Democrats made no attempt to hide their contempt for the Patriot Act and FISA warrants. Democrats said anything that made the process of obtaining warrants easier violated people’s privacy. They feared that intelligence agencies could abuse this power. Fast Forward 15 years and Democrats are helping intelligence agencies to abuse this power. If a Dossier can be used without any corroborating evidence to issue FISA warrants to spy on political enemies (the incoming Trump administration), then we have a great Constitutional crisis. When Nixon invaded the privacy of political opponents it was rightly seen as criminal. But what is happening today is much worse because people are doing “questionable” things to subvert the law. It is going to be hard to find any wrongdoing in these cases because Democrats and intelligence agencies can simply say they made a mistake. Or they can insist they had no intent to break the law – they just did not realize the Dossier was riddled with false factual statements. Just as the FBI could not prove intent with Clinton’s email server, it is going to be hard to say anyone acted maliciously against Trump. Rogue Democrats and agents can simply say they were acting to protect national security – even if it is not true. Privacy and Democracy does not mean anything to Democrats. Privacy and Democracy only matters when it promotes their ideology. Obviously, privacy and Democracy means very little when it stands in the way of their political objectives. When a third of Democrats vote to impeach a President, who has yet to be charged with a crime – this is a Constitutional crisis. I understand that they do not like Trump, but in order for a Democracy to work there must be tolerance. But tolerance is highly missing in our society. So, what has changed over the past 200 years to make us less tolerant as a people? Technology. Social media and technology is killing us. It is not only making us less social, 24 / 7 media is nothing more than brainwashing. People are unwilling to hear opposing viewpoints and debate issues especially without throwing insults at others. This environment of everyone believing they are 100% correct, 100% of the time has led to a huge hysteria around the nation that people are willing to circumvent the Constitution to correct perceived wrongs. Unfortunately, this situation will only get worse because social media is addictive like alcohol, sugar, tobacco, and drugs. Social media attacks the same area of the brain that makes people feel good. Social media is designed to be addictive. People feel good about having a lot of friends and “likes” on posts. It feeds the addictive part of our brain because it makes us feel popular and happy. In other words, this problem is going to get worse. So, it should come as no surprise that much of the evidence to support Democratic and Intelligence agency collusion has been found on social media. Since people become friends with persons of similar ideology, it is not surprising that people feel safe to transmit incriminating materials. Social media not only limits tolerance, but it also limits intellect. Something has got to give when half the people feel there is Republican collusion with Russia and the other half feel there is Democrat collusion with the FBI. Maybe, both sides are wrong because all of the above is true. No matter what the result, eventually we will be the impeaching of government officials simply because they have different political view.
Saturday, December 23, 2017
Our fundamental Rights are listed in the Constitution and Bill of Rights. We have the fundamental right of Life and Liberty for instance. Does it make sense to have a right of Death and Restriction or Confinement? Of Course not, in fact in Gonzales v. Oregon the Court struck down a law making “the right to die” fundamental. Does it make sense to abridge any of the Rights outlined in the Bill of Rights? The Supreme Court has made exceptions to many rights in the Bill of Rights, but for the most part they cannot be abridged. For instance, on freedom of speech, the Court has placed a few exceptions such as “presenting a clear and present danger” or using “fighting words” and people can be found libel by falsely making defamation of character claims against private citizens (public citizens are fair game). In my article “The Evolution of Substantive Due Process” I outline the many fundamental rights elevated by the Supreme Court. Substantive Due Process rights are rights not explicitly found in the Constitution, but the Court held they can be interpreted from the Ninth Amendment or the Due Process Clause of the Fifth or Fourteenth Amendments. These Fundamental Rights include control over activities such as contracts, occupation, knowledge, marriage, procreation, bodily integrity, contraception, abortion, privacy, gay marriage, gay sex, and decisions over children. Some of these make sense, but a few of them do not because they are in tension or conflict with each other. In fact, some of these Fundamental Rights are the antithesis or polar opposite of each other. First, let’s examine those rights that make sense and are not conflicting. We have the right to make contracts (outlined in the Civil Rights Act of 1866), but we do not have the right to break contracts without consequences. We have the right to work a lawful occupation, but it is not a fundamental right to be unemployed and to live on welfare. We have the right to learn and acquire knowledge, but we do not have the right to be stupid, irresponsible, and unaccountable. We have the right to make decisions about our children’s lives, but we do not have the right to neglect our kids. We have many fundamental rights to privacy, but we do not have a fundamental right to be transparent. With fundamental rights it does not make sense when there are conflicting rights. Secondly, let’s evaluate some conflicting Fundamental Rights declared by the Court. We have the right to procreate, but we also have the right to contraception and abortion. Abortion is the most troubling here. The first Fundamental Right declared by the Supreme Court in Dred Scott v. Sanford the Court held blacks had no constitutional rights. Abortion is analogous to Dred Scott in that it fails to identify any rights to the fetus or unborn. However, laws have protected the unborn from abusive behavior by the mother (drinking, drugs, smoking, etc.); if a fetus is killed by a crime, it is murder; a fetus can be willed items; Supreme Court decisions do defend a “viable” baby; and most states protect “wanted” babies (again the choice is solely the mothers). What is great about the Constitution is it protects everyone equally, morally, eliminates discrimination, and protects those that cannot protect themselves. Civil Rights for minorities and women are no different than protecting the rights of our children and most importantly our unborn, who cannot protect themselves. Abortion is discriminatory since women do not have to consult with fathers and most importantly, it affects mostly minorities (see Bailey v. Alabama, 1911 or Buchanan v. Warley, 1917). What is most stunning about Abortion being considered a Fundamental Right is that the mother accidently or mistakenly got pregnant. The mother and father were irresponsible. Where else can someone make a mistake and then undo it? Can we undo a car accident or a broken leg? Of course not. Statistics show that 97% of abortions are not to protect the life of the mother or victims of a crime, their purpose was to undo a mistake or the act of being irresponsible. In other words, Abortion is a Fundamental Right to protect the irresponsible at the expense of those that cannot protect themselves. This makes very little sense. Or how about we have the Fundamental Right to traditional marriage, but there is also the Fundamental Right for gay marriage. By this logic, it only seems fair to have the right to remain single. And we have the right to procreate, but we also have the right to sodomy. It makes no sense when Fundamental Rights conflict. Nothing should become a Fundamental Right that conflicts with another right without repealing the conflicting right.
Wednesday, December 20, 2017
In Muller v. Oregon (1908) the Court upheld a law that placed a limit of 10 hours per work day for women. In the majority decision (Holmes concurs), by using data presented by experts (men – in particular future Supreme Court Justice – Louis Brandies) the Court had the following quotes: “widespread belief that women’s physical structure, and functions she performs …. Justify special legislation restricting or qualifying the conditions under which she should be permitted to toil”; “this is especially true when the burden of motherhood are upon her”; “healthy mothers are essential to vigorous offspring, the physical well-being of women becomes an object of public interest and care in order to preserve the strength and vigor of the race”; “woman has always been dependent upon man”; “she is not an equal competitor with her brother”; and “two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation”. The Court was following the biases it outlined in Bradwell v. Illinois where the Court held a woman could not work as a lawyer even though she passed the bar exam. In Adkins v. Children’s Hospital (1923) the Court struck down a statute wanting to create a minimum wage for women. The majority decision was written by Justice George Sutherland who as a Senator was instrumental to get the Nineteenth Amendment passed (women’s suffrage). Sutherland knew the law in Adkins was discriminatory because it only affected women and would make it more difficult for women to get work in the future. Holmes of course dissented, even though he alluded that the law would hurt a women’s prospect at getting work. In his dissent Holmes writes this bigoted reason to uphold the law “It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those difference into account.” This is okay because Holmes was after all, following the majority public opinion at the time – women are inferior to men. Holmes dissented over Meyer v. Nebraska (1923) where the Court struck down a law that prohibited children learning a foreign language before reaching 10 years of age. Holmes is also famous for his First Amendment cases. In Schenck v. United States (1919) Holmes wrote the majority opinion that upheld the Espionage Act of 1917. Holmes wrote that during times of war (emergencies) the government can restrict free speech when there is a “clear and present danger” because someone cannot “falsely shout fire in a theatre and causing a panic”. Holmes would write the majority opinion upholding a similar case (Debs v. United States – 1919) where Eugene Debs, a socialist, was imprisoned under the Espionage Act of 1917. These were the first restrictions on the First Amendment and were used for decades to lockup harmless socialists and communists. Although Holmes would change his view over time, the damage was done. In Abrams v. United States (1919), Holmes changed his views on the First Amendment, but the majority decision was able to use his opinions in Schenck and Debs to uphold First Amendment restrictions. However, Holmes truly conflicts his argument in Abrams and that of Lochner. In Abrams Holmes says “That at any rate is the theory of our Constitution. It is an experiment as all life is an experiment.” In Lochner, Holmes says “But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” What makes Holmes a bad judge is not just his bigoted views, but the fact he changes his view of “contracts” and the “theory” of the constitution to meet his ideals of presumption to uphold the opinions of the majority of the people even if the opinions were racially and gender discriminatory. History has a favorable view of Holmes, but that is consistent with history having favorable views of Wilson (segregating federal offices), FDR (interning Japanese Americans), Truman (dropped the A-Bomb), and LBJ (the Vietnam fiasco). We know why, because they were progressives, even if they did regressive, oppressive, or bigoted acts. History has a way of remembering what it wants to remember and redacting what it wants to disappear.
Saturday, December 16, 2017
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
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
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
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 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.