Sunday, June 16, 2019

Ninth Amendment (Part IV)

Other theories limiting the power of the Ninth Amendment include the “residual rights” theory. A good example of this is illustrated in United Public Workers v. Mitchell (1947) where Justice Stanley Reed wrote “If granted power is found, necessarily the objection of invasion of those rights reserved by the Ninth and Tenth Amendments, must fail.” In other words, individual freedom, rights, and liberty must take a back seat to enumerated federal powers. Let’s be clear, the Constitution does not support any hierarchy of clauses or Amendments (unless amendments are drafted specifically to repeal or correct previous clauses and amendments). In fact, the Ninth Amendment guarantees all rights be treated equally. This follows any natural law principle that there is “no arbitrary preferences among values” or among morals or rights. So, why have the Ninth and Tenth Amendments been treated differently than other amendments? That is the million-dollar question. Mitchell upheld the Hatch Act which denied citizens working a government job from practicing their fundamental right to “engage in a political activity”. Mitchell was the first case to deny the concurrent powers doctrine simply by labelling the Ninth and Tenth Amendments as truisms. The Constitution has been described as an island of government powers surrounded by a sea of rights and not the other way around. “Rights came first, then came the government, and then came the law.” The Constitution was written to protect individuals from government intrusion and restrictions. It would make no sense to protect the government at the expense of the people. This goes against any Federalist or anti-Federalist views during the Founding era. As Libertarian legal scholar Randy Barnett asserts “Ninth Amendment skeptics have always seemed to think that when a provision is inserted merely for greater caution, this means it has no function apart from serving as some sort of enforceable warning.” Moreover “They [Justices] consistently overlook how such cautionary rights can serve as a redundant or secondary line of defense when other primary constraints on government power fail.” Just as the Ninth Amendment provides redundancy to protect the rights of citizens, the freedom of contract can do the same. Both Barnett and Liberal Legal Scholar Daniel Farber have similar views about the Ninth Amendment. However, they differ on one key point. Farber sees the Ninth Amendment as protecting the “rights” of citizens whereas Barnett sees the Ninth Amendment protecting both the “rights” and “liberty” of citizens. They both see liberty as something different than rights. Liberty is to protect citizens from unnecessary government restrictions, regulations, and mandates that may not necessarily violate the rights of citizens. For that reason, Barnett pictures a small federal government whereas Farber is okay with a big convoluted government encroaching on people’s liberty. Farber contends that Madison’s purpose for the Ninth Amendment had nothing to do with limiting the size of government. He is wrong, the whole purpose of the Constitution and Bill of Rights was to limit the scope of the federal government. Madison may have been a Federalist (wanting a strong central government) at the Constitutional Convention but he said in Federalist Paper 45 that the Constitution provides for limited federal powers but State powers were infinite. In fact, what Madison is referring to is that the Constitution was designed to meet the subsidiarity natural law principle: “Subsidiarity is an organizing principle that matters ought to be handled by the smallest, lowest or least centralized competent authority. Political decisions should be taken at a local level if possible, rather than by a central authority.” For the purpose of this book both liberty and rights will be seen as one of same thing since governments should not be in the business of violating either without some compelling reason to do so. Legal scholar, Kurt Lash, also views the Ninth Amendment’s purpose to curb federal government encroachment, but his originalism interpretation led him to come to that conclusion via different reasoning. However, Lash does not view the Ninth Amendment as protecting the individual rights of citizens from State encroachment – that is a big flaw. The 2010 case Troxel v. Granville is an interesting case regarding Justice Antonin Scalia’s misguided originalism view of the Ninth Amendment. 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, but what was interesting was Justice Scalia’s dissent. Scalia holds that “a right of parents to direct the upbringing of their children is among the unalienable rights”. But Scalia uses restraint declining to use the Ninth Amendment to elevate this right. Scalia made the following remarks regarding the Ninth Amendment: “even farther removed from authorizing judges to identify what they may be (rights)” when discussing what fundamental rights to elevate. In other words, according to Scalia, if the right cannot be found in the text of the Constitution, then the right cannot be elevated. Therefore, the Ninth Amendment, the privileges and immunities clause, and substantive due process are not acceptable theories or law doctrines to elevate any fundamental right in Scalia’s view. In sum, there are strong originalism arguments to say the Ninth Amendment has been applied incorrectly by judges and justices because it is misunderstood. The Ninth Amendment should be used to elevate rights and to protect individuals from both State and federal encroachment which may violate individual rights and liberty – it is used for neither reason.

Sunday, June 9, 2019

Ninth Amendment (Part III)

Marshall would rely on his “expressly” argument to circumvent the Tenth Amendment in McCulloch v. Maryland (1819). In this case, Marshall held the federal government could create a national bank to carry out enumerated powers such as to lay and collect taxes. Marshall would use a broad interpretation of the necessary and proper clause in this opinion. Marshall contends that the federal government can use any implied power necessary to carry out enumerated powers. But, obviously, there were many more less intrusive ways to carry out laying and collecting taxes then creating a government monopoly. Where Marshall failed in his decision was to evaluate the “proper” part of the necessary and proper clause. Marshall, never asked the question if the bank was necessary, was it also proper? In other words, was creating the national bank the “correct” way to achieve the least evasive means (federal encroachment) to establish the end result (tax collection)? No, and proof of this is provided throughout this book in terms of how McCulloch is cited to grant the federal government expanded implied powers. This is perfect proof that consequentialism doctrines (do the ends justify the means) do not necessarily work at achieving the greater good. These doctrines are arbitrary and are impossible to measure. Madison was correct to say that once the federal government was provided ANY implied powers, then federal power would reach to every aspect of the lives of Americans. Marshall made a huge mistake. Sure, he was wrong to even consider that the federal government had the right to build a corporation, but more importantly, since his decision provided no limit on implied powers for the federal government, Marshall essentially armed Congress with a blank check to intrude on State and individual rights whenever they felt it appropriate. The concurrent powers doctrine of the Ninth and Tenth Amendment is interesting because it is the antithesis of modern jurisprudence introduced by the FDR Court. The doctrine holds that States maintain sovereignty over powers concurrently held by both the States and federal government via the Ninth and Tenth Amendments. For instance, the Federal government has the enumerated power to prosecute counterfeiters. However, in State v. Antonio, the South Carolina Supreme Court held that South Carolina had the right to prosecute a counterfeiter citing the Ninth and Tenth Amendments. Today, modern federal courts uphold many federal laws and statutes even though they are outside the realm of its enumerated powers. But in State v. Antonio, the South Carolina Supreme Court laid the groundwork to limit federal powers by reading Constitutional provisions narrowly to limit the expansion of enumerated powers. In another case, Houston v. Moore (1820), in his dissent, Justice Joseph Story held Pennsylvania could discipline militia members (through court-martial) even though Article I, Section 8, Clause 15 and 16 provide enumerated power over militias to the federal government. Story cited the Ninth Amendment to uphold the doctrine of concurrent powers. In New York v. Miln (1837), the Court upheld a New York law which said ships must furnish a passenger list to local authorities. In his majority concurrence, Justice Smith Thompson, cited Story’s opinion in Houston v. Moore upholding the law based on the concurrent powers doctrine. At this point, however, Justice Story changed his view about State power and the Ninth Amendment and dissented in the case. In Smith v. Turner (1849, passenger car cases), the Court held that States could not impose a passenger tax on ships travelling in interstate commerce. In his dissent, Justice Peter Daniel, cited the concurrent powers doctrine in Story’s Houston opinion. Even though Justice Story’s dissent in Houston was cited in many Court cases, most modern scholars overlook this Ninth Amendment claim. The reason for this is simple: Story changed his view. In his book “Commentaries on the Constitution” published in 1833, Story changed his opinion about federal power instead invoking those views held by Chief Justice Marshall. Justice Marshall never mentions the Ninth Amendment in any one of his opinions even when that was the main argument in the case. However, Story’s concurrent powers doctrine has never been questioned or overruled by the Court. The 1948 case, Bute v. Illinois, is often overlooked. In this case, Justice Harold Burton held that the concurrent powers doctrine of the Ninth and Tenth Amendments could be used to deny applying the Bill of Rights to the States. Most would agree that the Bute opinion should only hold weight if the State law is stricter (provided more individual rights) than the federal law otherwise the Bill of Rights should apply to the States. Many State and federal cases also used the concurrent powers doctrine. For instance, in Hawke v. Smith, the Ohio Supreme Court upheld the right of States to use referendums to approve proposed amendments to the Constitution instead of State legislatures as outlined by Article V. FDR’s National Industrial Recovery Act (NIRA) was rejected using the concurrent powers doctrine by federal judges in Amazon Petroleum Corporation v. Railroad Commission, Hart Coal Corporation v. Sparks and Acme Inc v. Besson. And the Iowa Supreme Court struck down provisions of FDR’s Agriculture Adjustment Act (AAA) in United States v. Neuendorf. In Henry Broderick v. Riley (1951), the Washington Supreme Court said that the Ninth and Tenth Amendments are being forgotten in legal jurisprudence to protect State rights from federal encroachment. The concurrent powers doctrine, the right to work, freedom of contact, and property rights took a big hit Tennessee Electric Power v. Tennessee Valley Authority (1938, TVA). In this case, the plaintiffs argued that the federal government’s TVA project to generate and sell electricity violated States rights because it would “result in federal regulation of the internal affairs of states, and will deprive the people of the states their guaranteed liberty to earn a livelihood and to acquire and use property subject only to state regulation.” Justice Owen Roberts held that individuals had no standing to file claims under the Ninth and Tenth Amendments – only States could make claims under these two Amendments. That is odd since both amendments claim to protect the rights “retained for the people” and “or to the people”. The TVA case erased the original intent the Founders held for the Ninth and Tenth Amendments. Madison’s amendment placement proposals also debunked several other flawed theories about the meaning or purpose of the Ninth Amendment. First is the collective rights theory which states the Ninth Amendment was adopted for the purpose of creating a Constitutional convention. If that were true, then Madison would have proposed placing the Amendment in Article V with other Constitutional convention and amendment guidelines. Second is the Ninth Amendment was created for the purpose of guaranteeing a republican form of government for the States. If that were true, then Madison would have proposed placing the Amendment in Article IV with the other guaranteed republican form of government statements. Still, other scholars theorized the Ninth Amendment’s purpose was to prevent the repeal of any States’ Bill of Rights that may be stricter than those proposed in the Constitution. If this was its purpose it is not working. The Court continually infringes on stricter State law interpretations of the Bill of Rights, especially during the Warren Court (more on this later).

Sunday, June 2, 2019

Ninth Amendment (Part II)

Some scholars have said that the Ninth Amendment only applies to a compact between the States and the federal government (like the Tenth Amendment). This is half true. The original meaning of the Ninth Amendment can be explained in part by James Madison, Supreme Court Justice Joseph Story, and Roger Sherman’s original draft of the Bill of Rights. Sherman attempted to combine both the Ninth and Tenth Amendments into one amendment. The committee rejected this, but it is proof both amendments had the purpose of limiting federal power. Madison’s first inclination was to add the first ten amendments into the Constitution under the section where they were most pertinent. Madison wanted to list the first nine amendments under Article I, Section 9 after the clauses guaranteeing other natural or fundamental rights including a writ of habeas corpus and the ban on bills of attainer and ex post facto laws. Madison proposed placing the unique federalism protection clause (the Tenth Amendment) in Article VI. Since Madison did not want to place the Ninth Amendment in the same section as the Tenth Amendment, some incorrectly argue the two amendments cannot have a similar meaning to limit federal power. This explains why when some States were admitted to the union they had provisions similar to the Ninth Amendment in their State constitutions: They believed the Ninth Amendment limited federal power, not State power. Of course, the amendments were added to the end of the Constitution creating some confusion about the intent or the meaning of the Ninth Amendment. In fact, Madison’s original proposal for the Ninth Amendment reads as follows: “The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be construed so as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted for greater security.” The second part of the proposed Ninth Amendment is proof it was intended to be a federalism clause. The purpose of the clause was to limit federal powers similar to the Tenth Amendment. The fact the “enlarge the powers” phrase of the Madison’s Ninth Amendment draft was removed, it incorrectly led many scholars to believe the amendment was not one to deny federal power, but only retain individual rights. However, in letters between Madison and Hardin Burnley, he ensures the meaning of his draft and the final version of the Ninth Amendment have the same meaning. Madison asserted that “retained rights” and “limited power” were one of the same thing. Madison’s correspondence with Burnley started when the Virginia ratifying committee (for the Bill of Rights) rejected the Ninth and Tenth Amendments. Governor Edmund Randolph and others fretted over the changed language of the Ninth Amendment. Although the language of the Tenth Amendment between Madison’s draft and the final version remained unchanged, the Virginia committee wanted two amendments to stop the encroachment of federal power. Madison wrote that “every public usurpation is an encroachment on the private right, not of one, but of all.” Hence, protecting rights is the same as limiting federal power. At the same time Virginia was debating ratifying the Bill of Rights another dispute started in Congress over establishing a national bank. The crux of the debate for Madison centered around the fact that both the Ninth and Tenth Amendments limited federal powers from using the necessary and proper clause to create a national bank. Madison’s reassurance of the meaning of the Ninth and Tenth Amendments in the bank dispute may have helped Virginia to end its gridlock and pass the Bill of Rights. It is important to note that only Virginia questioned the meaning of the Ninth Amendment. All of the other States seemed to understand that the Ninth Amendment was intended to limit federal power. Thus, the Ninth Amendment was drafted to protect citizens from the “backdoor” theory. For instance, freedom of the press in the First Amendment did not allow Congress the power to regulate the press if it did not infringe on a free press. Hamilton feared this exact theory in Federalist Paper 84. He felt by having a Bill of Rights it would allow the federal government to use the amendments as a backdoor to broader powers. In other words, if there is an amendment restricting Congressional powers, then the fear was that the Constitution would be interpreted as implying that power must be an enumerated one. But the statement proposed by Madison in the previous paragraph shows he did not intend for the Bill of Rights to “enlarge the [federal] powers” in the Constitution. A good early example of the backdoor theory is the Alien and Seditions Act signed into law by President John Adams. Many people were imprisoned or deported because of the Act. Most people are aware of the Virginia and Kentucky Resolutions (written by Madison and Jefferson). In the Resolutions, both Madison and Jefferson proposed that the Alien and Seditions Act was unconstitutional because it violated both the First and Tenth Amendments. Most people, on the other hand, are not aware of the “Response to the Virginia Resolutions”. Scholars agree that the author of the document would be future Chief Justice John Marshall. Marshall defends the Alien and Seditions Act as Constitutional using three arguments. First, he asserts that Congress may use the necessary and proper clause in times of crisis (to avoid war with France) to protect the well being of American citizens. Secondly, he brings up the point of how the Tenth Amendment was copied from Article II of the Articles of Confederation which provides “each state retains its sovereignty, freedom, and independence, and every power, jurisdiction and right, which is not by this Confederation expressly delegated to the United State, in congress assembled.” The key word in this provision is “expressly” since it was omitted from the wording of the Tenth Amendment. Hence, Marshall felt this meant that federal power could be “liberally construed”. Finally, Marshall contends that Congress can regulate speech so long as it does not abridge the freedom of speech. The final argument proposed by Marshall was the backdoor theory and is precisely one of the purposes of the Ninth Amendment. The Ninth Amendment does not allow Congress to “enlarge” its powers around clauses, provisions, and amendments in the Constitution. In fact, many politicians such as Thomas Mason, James Callender, and Nathaniel Macon are on record for using the Ninth Amendment to find the Alien and Seditions Act unconstitutional. As for the “expressly” argument, John Page (Virginia politician and governor), wrote that the combination of both the Ninth and Tenth Amendments provides for “conferred expressly delegated powers.” Even in the famous case, Calder v. Bull, Justice Samuel Chase holds “the several State Legislatures retain all the powers of legislation, delegated to them by the State Constitutions; which are not expressly taken away by the Constitution of the United States”

Sunday, May 26, 2019

Ninth Amendment (Part I)

The Ninth Amendment is an excellent example of how originalism theory is dead among justices. The Ninth Amendment is an enigma because it is interpreted incorrectly and it is hardly used. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment and the privileges and immunities clause of the Fourteenth Amendment are very similar and allow for justices to elevate natural law fundamental rights that are nowhere to be found in the Constitution. They are also very similar because they are seldom used. Scholars are at odds whether the Ninth Amendment applies to both federal and State governments. The theory in this text believes the Ninth Amendment should be included as part of the Bill of Rights (most scholars only believe the first eight amendments make up the Bill of Rights). Therefore, the Ninth Amendment should be applied to the States via the Fourteenth Amendment’s due process clause as other Bill of Rights amendments have been (although this has not happened yet). Fundamental rights can be elevated through either the Ninth Amendment or the privileges and immunities clause of the Fourteenth Amendment. Of course, the privileges and immunities clause has been incorrectly redacted from the Constitution in the Slaughter House Cases (more on this later) and the Ninth Amendment is long forgotten, also redacted by the “inkblot” theory. Robert Bork, a Supreme Court Justice nominee (Senate did not confirm him in 1987), said during his confirmation hearings that the Ninth Amendment is an “inkblot” and should be ignored since its true meaning is hard to discern. It is hard to fathom, something as important as the Ninth Amendment, should be redacted from the Constitution. After all, our Founders had a specific reason to put it in the Constitution in the first place. The Ninth Amendment was James Madison’s way to handle a very perplexing issue. Most Constitutional Convention members did not want to create a Bill of Rights for various reasons. The most important reason was echoed by James Iredell from North Carolina. He contented it is impossible to list all the natural rights of all citizens. Thus, by enumerating a few natural rights it may end up disparaging the many natural rights that are not found in the Bill of the Rights. But many States would not ratify the Constitution without the promise of a Bill of Rights to be added to the document. In Federalist Paper 84 Alexander Hamilton argues against a Bill of Rights: A Bill of Rights is not needed for the Constitution since many individual and State rights are built into the Constitution such as not allowing a suspension of a writ of habeas corpus. Besides, Hamilton argues that by adding a Bill of Rights “they would contain various exceptions to powers not granted”. Furthermore, Hamilton added “Why declare that things shall not be done which is no power to do?” Hamilton argues further in Federalist Paper 83 that many individual rights are already included in State constitutions such as trial by jury. Hamilton claims there is no trial by jury provision in the Constitution since each State has varying and unique interpretations on the subject such as some States allow trial by jury for criminal cases but not for civil ones and vice versa. In most cases, State constitutions were more stringent than the federal Bill of Rights. Constitutional convention member, James Wilson, also argued against a Bill of Rights fearing those rights not incorporated in the Bill of Rights would be denied or disparaged by both federal and State governments. Wilson was correct in his assessment and this will be explained later in this book. Madison’s plan to solve this conundrum was the Ninth Amendment. The Ninth Amendment was scarcely used in American jurisprudence to enumerate individual rights. But there is some precedent to back this school of thought. Justice Goldberg used the Ninth Amendment in his reasoning for Griswold v. Connecticut (he was the only Justice out of 7 to do so) and Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter used the Ninth Amendment in Casey v. Planned Parenthood (Roe v. Wade follow up in 1992). The Oregon Supreme Court elevated the right to own property as fundamental in Roman Catholic Archbishop v. Baker (1932) using the Ninth Amendment. A district court upheld the fundamental right to work in United States v. Lieto using the Ninth Amendment. In Lieto, Judge William Hawley Atwell held “The only controversy that is here is between the humble citizen who asserts his right to carry on his little business in a purely local fashion, without being arrested and punished for a mythical, indirect effect up interstate commerce.” Most scholars (both liberal and conservative) have tried to minimize the impact and relevance of the Ninth Amendment and most justices have been reluctant cite it because they are afraid of opening “Pandora’s box”. Put another way, both the Right and Left are afraid of how each side will use the amendment. In particular, they fear the amendment will be exploited for political purposes. This is true, but justices have already exploited many provisions of the Constitution for political purposes. Later, in this text, there is an outline of rules that should be followed by justices to elevate natural law fundamental rights so the Ninth Amendment is not exploited for political purposes. The original intent of the Ninth Amendment provides for a dual purpose. First, it is to prevent the federal and State governments from denying any rights that may not be enumerated in the Constitution or Bill of Rights. Secondly, the amendment is to “deny an expansion of federal power” that may arise from a limited list of rights in the Constitution. In other words, the amendment would prevent the federal government from assuming it has power to regulate any rights that are not enumerated in the Constitution. The Ninth Amendment also has a dual purpose in terms of protecting the rights of individuals and also protecting the collective rights of people within a State. For example, the collective right of the “home rule” provides that States can “determine for itself its own political machinery and its own domestic policies” so long as they do not violate the rights of citizens. The Ninth Amendment also dictates that all enumerated and unenumerated rights be treated exactly the same. Put in other terms, one right, regardless of enumeration, should not be given any priority over another right. This is important because the entire history of the Supreme Court violates this Ninth Amendment rule. Instead, the Court is about conjuring up balancing tests to provide some rights more preferred status over other rights. That being said, however, it is important to note that the Ninth and Tenth Amendments cannot be used by States to shield them from violating the rights of its citizens. For this reason, the Ninth Amendment should apply to the federal government as a federalism clause and both the State and federal governments for protecting the individual rights of its citizens.

Sunday, May 19, 2019

The Eleventh Amendment and the Contracts Clause

In holding with the spirit of the Declaration of Independence, the Northwest Ordinance, and the Constitution there can be only one purposeful enforcement of the Eleventh Amendment. The true purpose of the Eleventh Amendment is to protect States from being sued by citizens for enforcing constitutional State and federal laws or from States being sued by citizens for failing to enforce unconstitutional State or federal laws. This follows Shiras’s equality principle. Let’s evaluate a few examples:

A good example of the Court allowing a State to use sovereign immunity was Griffin v. School Board of Prince Edward County (1964). In this case, the Court held that a State government could not be sued for educational reasons. This case was about citizens suing a State for higher tax rates to improve education. A State is not violating any Constitutional clause or amendment for appropriating taxes for education. Using this logic, it can be argued that States could use sovereign immunity to prevent the federal government from integrating school systems during the 1960s. This is true. Later, this text will discuss in more detail why government mandates forcing the integration of schools during this era were wrong. In short, citizens should be able to choose the school they want for their children’s education. Citizens should not be forced to attend schools they do not want for the sole purpose of obtaining the integration results the government desires. Desegregation is a natural process whereas integration is a forced process.

The Eleventh Amendment would not face another landmark case until Seminole Tribe v. Florida (1996). This is good example of a case where States should not be able to hide behind the Eleventh Amendment to avoid a federal law. Congress passed the Indian Gaming Regulatory Act (IGRA) under the commerce clause. The Act imposed upon the States a duty to negotiate in good faith with Indian Tribes to generate a contract for gamming privileges. Congress certainly has the power granted under the commerce clause to pass this regulatory act since it applies to “Indian Tribes”. When the State of Florida refused to negotiate with the Seminole Tribe, they brought a suit against the State. But the conservative sect of the Court incorrectly asserted precedent set by Hans to deny Citizens the right to sue their State because Florida had Sovereign immunity granted by the Eleventh Amendment. In the majority opinion they thought Hans restricted the application of the commerce clause. Sure, this decision provides States more power over the federal Government, but it also restricts the power and sovereignty of its citizens. Since the IGRA was a federal law, States could only hide behind the Eleventh Amendment if 1. The IGRA was unconstitutional or 2. The IGRA was outside the scope of Congress’s constitutional authority. Since neither of the above conditions were met, the Eleventh Amendment should not apply.

Justice Souter wrote the dissent to Seminole Tribe which was joined by Justice Ginsberg, Stevens and Breyer. Souter rightly remarks “Because the plaintiffs in today’s case are citizens of the State they are suing, the Eleventh Amendment simply does not apply to them.” For this reason, he also believes Hans was also wrongly decided. Souter also points out in Federalist Paper 32 that States have no sovereignty over the regulation of commerce with Indian Tribes. Souter further acknowledges a proposed amendment by Massachusetts Representative Theodore Sedgwick after the Chisholm decision, but it was never ratified. The Sedgwick amendment would have denied “Any Citizen” the right to sue “any State”. Souter asks why this proposal was denied in favor of the one ratified in the Eleventh Amendment? Souter certainly pokes holes in the Hans holding. Finally, Souter admits “The American development of divided sovereign powers was made possible only by a recognition that the ultimate sovereignty rests in the people themselves.” This is certainly consistent with the Chisholm decision and Marshall’s remarks about Chisholm in Fisher. A year later, in Alden v. Maine (1997), the Court made similar arguments and came to a similar decision as in Seminole Tribe. Souter is correct, since the IGRA did not violate the Constitution then a State cannot hide behind sovereign immunity.

Why was the Eleventh Amendment passed? At constitutional ratifying conventions at least five States made serious objections that citizens of other States could sue States (Virginia, Massachusetts, New York, North Carolina, and Rhode Island). Rhode Island did not even attend the Constitutional Convention so their objections should be taken with a grain of salt. There are three main reasons for the passage of the Eleventh Amendment. The first reason was debt. All of these States had large sums of paper currency in circulation that the State was obligated to honor following the Revolutionary War. The second reason was to limit the federal judiciary power over disputes between citizens with other States. The final reason was small compared to the first two but there was some concern putting citizens on equal footing with the States. Therefore, the Eleventh Amendment was passed to protect State rights and immunity from federal judiciary interference, concerns over debt, and to hold State sovereignty at a higher hierarchical status than popular sovereignty.

Several obscure contract cases made their way to the Supreme Court around the time of the Chisholm decision and that was of great concern to States. Grayson v. Virginia (1796) was a land dispute between Virginia and an Indiana fur company. If Virginia lost the suit they would have been forced to pay a sum of between 1 and 2 million dollars (a huge sum in those days). In Vassall v. Massachusetts, Vassell was a Loyalist during the Revolutionary war. He fled to England during the war to avoid prosecution (and persecution). In this case, the State of Massachusetts confiscated his property during the war and Vassall wanted his property refunded after the war. In Cutting v. South Carolina, the Prince of Luxemburg wanted to recover debt on a vessel purchased by the State of South Carolina. And Huger v. Georgia involved a land dispute between a South Carolina company and Georgia. The South Carolina company held that Georgia breached on its contract conditions by later claiming it would only accept coined money instead of paper notes to pay for the land. James Jackson (future Georgia governor) wrote that Georgia had no authority to sell state lands. Jackson argued that such decisions are “retained by the people” of Georgia to act in a collective manner. Georgia was already outraged by the Chisholm ruling: its lower House passed a bill calling it a felony, subject to death, for anyone helping to enforce the Chisholm ruling. States began to fear that suits brought forward against States would include much more than contract disputes such as civil liabilities like in Vassell. States feared everyone would be going to the High Court demanding some form of restitution. The above cases were either settled or the suit was dropped following the adoption of the Eleventh Amendment.

Clyde Jacobs, disagrees with the premise States passed the Eleventh Amendment to seek shelter from debts since the federal treasury (under Alexander Hamilton) introduced a policy of “assumption”. Assumption allowed the federal government to take over “most” State debt incurred by the war effort (about 85%). Thus, in Jacobs view, State debt was minimal and most of it was being honored. Most cases where debts were not being honored were generally disputes over the confiscation of Loyalist property. Jacobs may be right, but without recourse, it is hard to imagine that the rights of some citizens were not violated by the passage of the Eleventh Amendment. In fact, in Cohens v. Virginia, Chief Justice Marshall explains the reason for the adoption of the Eleventh Amendment was for the sole purpose of denying out of State citizens any recourse from recovering their debts.

The Eleventh Amendment set a bad precedent by allowing States to default on contract obligations. Only six years following the passage of the Constitution the sovereignty of “We the People”, the rights “retained by the people” in the Ninth Amendment, and the rights “to the people” in the Tenth Amendments would be diminished forever. Did our Founders want the federal and State governments to have immunity powers similar to the King of England? Of course not, that is why Americans fought the Revolutionary War: To break away from this tyranny style of English rule. If taxation without representation caused friction between the King and colonies, it is hard to imagine that the colonies would be happy if England hid behind sovereign immunity to breach on contract obligations similar to how States were breaking their contract obligations. The objective of the Declaration of Independence and the Constitution was to provide ultimate sovereignty with the people with State and federal sovereignty to follow (in that order).

What is sometimes lost in the debate over the Eleventh Amendment is that, although it passed Congress overwhelmingly, the Senate asked for a textual change to the Amendment that the House rejected. That change read “where such State shall have previously made provision in their own courts, whereby such suit may be prosecuted to effect”. The rejection of this statement eliminated any chance that suits by citizen and foreign subjects against other States would ever be resolved in State courts. Hence, there was no recourse for citizens whose property rights or contractual rights had been violated at any level in the court system.

In sum, individual or popular sovereignty over State and federal government sovereignty is an important issue that will change for the worse over the course of United States history. When individual sovereignty is diminished at the expense of State and federal government power, it is without question, one of many things, that has led to the mitigation of contract rights and all rights in general. The Eleventh Amendment was the first step in the process of diminishing individual contract rights at the expense of the federal and State governments. The correct application of the Eleventh Amendment was described by Justice George Shiras in Prout. By applying his principles, the Eleventh Amendment would protect both individual citizens from State and federal encroachment (unconstitutional acts or laws) and collective citizens (States) from federal encroachment (unconstitutional acts or laws). Finally, it is important to note that Justice Bradley and Miller in their Slaughter House dissents correctly point out that the right of citizens to use the contracts clause or to sue a State were both fundamental rights.

Sunday, May 12, 2019

The Eleventh Amendment and the Contracts Clause (Part III)

The Court shifted gears in New Hampshire v. Louisiana (1883). The Court held the States of New York and New Hampshire could not circumvent the Eleventh Amendment by filing suit against Louisiana on behalf of its citizens. In this case, New York and New Hampshire tried to recoup defaulted loan payments from Louisiana for their citizens. Elliot v. Jumel (1883) was another Louisiana loan default case where the Court again shielded Louisiana from the suit using the Eleventh Amendment. In Cunningham v. Macon Railroad (1895), the Court provided Georgia sovereign immunity. In this case, when the railroad sold its ownership to the State, the State only honored corporate bonds held by one group of investors while neglecting another. Both Justices Stephen Field and John Harlan dissented. Field and Harlan wanted to protect citizens from breach of contract using the contracts clause. But the New Hampshire, Elliot, and Cunningham line of cases essentially provided the Eleventh Amendment priority over the contracts clause. This is something the Founders did not intend to happen. Again, no clause or Amendment in the Constitution has priority over any other. And just because the Eleventh Amendment was “newer” than the original text of the Constitution this does not mean it can supersede all other provisions, clauses, and amendments. In fact, the Ninth Amendment provides that all rights, enumerated or not, should face exactly the same levels of scrutiny or priority. By 1890, it was official, the Eleventh Amendment was shielding States who defaulted on contracts with citizens. What’s worse, in Ex parte Ayers (1887), the Court held that State officers could not be held liable for carrying out unconstitutional State laws. Most can agree with that outcome (the State should be liable), but where is the recourse for citizens who have been wronged? The Ayers precedent meant citizens cannot sue either the State or its officers who can both hide under the guise of the Eleventh Amendment allowing them to impair or default on contracts or worse yet, violate other fundamental rights.

In Reagan v. Farmers Loan and Trust (1894), the Court shifted gears again. Justice David Brewer initiated a new doctrine. The Brewer doctrine distinguished between governmental and pecuniary cases when identifying which State cases the Court may apply sovereignty immunity via the Eleventh Amendment. Reagan dealt with State railroad rates set by the Texas railway commission. The Court held the rates were too high in violation of the Fourteenth Amendment. The Court viewed the action taken by the State of Texas as being a pecuniary one and not a governmental one. The Brewer pecuniary doctrine was an unnecessary balancing test. After all, aren’t most of the contract clause / Eleventh Amendment disputed cases discussed in this section pecuniary in nature? Interestingly, the Court conjured up the Brewer doctrine so it did not appear as if the Court was justifying using the Fourteenth Amendment to supersede the Eleventh Amendment. In fact, Clyde Jacobs believes this would be acceptable and may explain why the Eleventh Amendment has more clout than the contracts clause. Once again, there is nothing in the structure of the Constitution which provides any provision, clause, or amendment priority over another.

Other cases such as Smyth v Ames (1898) and Prout v. Starr (1903) had similar outcomes as Reagan over railway rates. Fitts v. McGhee (1899) was the anomaly ruling during the era holding States could be provided Eleventh Amendment protection over setting predatory railroad rates. However, Ex parte Young (1908) established, without a doubt, the Reagan, Smyth, and Prout line of cases were the clear precedent. The Court would correctly hold that States violating property or other rights of individuals would not be tolerated for any reason. States could not seek shelter from these violations via the Eleventh Amendment. For example, in Ex parte Young, the Court held that State laws forcing railroad companies to set outrageous rates or face high fines, long jail sentences, and the forfeiture of property was way too extreme and a violation of both individual and corporate due process rights.

But why would the Supreme Court protect citizen rights via the Fourteenth Amendment but not through the contracts clause? One reason, discussed earlier, it is incorrectly believed that the Fourteenth Amendment is newer and trumps the Eleventh Amendment whereas the newer Eleventh Amendment trumps the contracts clause. Justice George Shiras dispels that myth in his opinion in Prout v. Starr: “The Constitution of the United States, with the several amendments thereof, must be regarded as one instrument, all of whose provisions are to be deemed of equal validity. It would, indeed, be most unfortunate if the immunity of the individual states from suits by citizens of other states, provided for in the 11th Amendment, were to be interpreted as nullifying those other provisions which confer power on Congress to regulate commerce among the several states, which forbid the states from entering into any treaty, alliance, or confederation, from passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or, without the consent of Congress, from laying any duty of tonnage, entering into any agreement or compact with other states, or from engaging in war, all of which provisions existed before the adoption of the 11th Amendment, which still exist, and which would be nullified and made of no effect if the judicial power of the United States could not be invoked to protect citizens affected by the passage of state laws disregarding these constitutional limitations. Much less can the 11th Amendment be successfully pleaded as an invincible barrier to judicial inquiry whether the salutary provisions of the 14th Amendment have been disregarded by state enactments.” Notice Justice Shiras writes the Eleventh Amendment is not meant to protect States from a “law impairing the obligation of contracts”. Despite Shiras opinion States have been allowed to impair or default on contracts by hiding behind the Eleventh Amendment. Clyde Jacobs correctly asserts the “contracts clause had no limitation on state power” but what’s worse, it continues to have no limitation on State power.

Hence, if any provision, clause, or amendment is violated then the law is unconstitutional using the Shiras equality theory. The only way a law is constitutional is when ALL provisions, clauses, and amendments within the Constitution are not violated (or true). Therefore, if the contacts clause is violated, it does not matter if the Eleventh Amendment is not violated, they both must be Constitutional for States to receive sovereign immunity. But by holding that sovereign immunity is true in a scenario where the contracts clause is violated, this is incorrectly providing more power to the Eleventh Amendment. The Eleventh Amendment should only apply and protect States if they are not violating the rights of citizens with unconstitutional laws. This follows the logic and precedent set forth in the Reagan, Smyth, Prout, and Young line of cases which withheld sovereign immunity from States for violating the Fourteenth Amendment. Although the line of cases from Reagan to Young were correctly decided the Brewer doctrine was wrong. The Brewer pecuniary doctrine is not needed to justify the holding in these cases: The Fourteenth Amendment is not trumping the Eleventh Amendment (they are both given the same weight).

Sunday, May 5, 2019

The Eleventh Amendment and the Contracts Clause (Part II)

John Marshall also believed that Article III, Section 2 should have been construed broadly at the time of the Virginia ratifying convention. But, as we shall see, Marshall changed his tune as Chief Justice because he was not expecting States to hide behind immunity to commit crimes against citizens. Besides, how do you protect the rights of citizens without yielding some degree of sovereignty to the people? This is what makes the Constitution, the Northwest Ordinance, and the Declaration of Independence so unique: these documents followed Lockean social compact theory by placing priority for individual sovereignty over government sovereignty.

In Chisholm, property was sold by a South Carolina citizen to the State of Georgia. The Court was correct to hold Georgia or any State should not default or impair their contractual agreements with citizens. Was the purpose of the Eleventh Amendment to protect States who default or impair contracts or violate the rights of citizens? Was the purpose of the Constitution to protect the government over citizens? Some believe the drafters of the Eleventh Amendment wanted to protect States from frivolous claims while at the same time maintaining peace and tranquility within the Union (eliminating disputes between States). If this is true, this is a weak argument. After all, it can create just as much friction between States if a neighboring State is taking advantage of its residents. Hence, the peace and tranquility argument can go both ways.

This text believes the best reason for the Eleventh Amendment is to protect States and citizens from federal government encroachment (judicial and legislative). Other than that, it suits no purpose. However, the amendment is hardly used for that reason.

In Hans v. Louisiana (1890), the Court’s Justice Joseph Bradley overruled the principals of sovereignty held in Chisholm by siding with the views held by a single justice in that decision: Iredell. This was not an easy decision since the Eleventh Amendment says “Citizens of another State” but Hans was from Louisiana, the State he was suing. Yet, the Court decided that the drafters of the Eleventh Amendment also meant to include “Citizens of the same State”. Interestingly, Justice John Harlan concurs with the decision in Hans but writes “The comments made about the decision in Chisholm v. Georgia do not meet my approval.” He would continue by writing “Besides, I am of opinion that the decision in that case was based upon a sound interpretation of the Constitution as that instrument then was.” Hans also went against Justice Marshall’s precedent set in Cohens v. United States (1821). In Cohens Justice Marshall held citizens can sue a State in which they reside. Of course, it seems odd that a State can be sued by its own citizens but a citizen of another State with a similar grievance has no recourse. That seems to be the compromise made by the drafters of the amendment. But the text is clear, if the Eleventh Amendment meant to provide States sovereign immunity from ALL suits introduced by citizens those words cannot be found in the amendment. In his Hans opinion, Justice Bradley also conveniently ignored Justice John Marshall’s opinion in Fletcher v. Peck (1810). Marshall said individuals suing State governments may no longer be in the Constitution, but Chisholm was the proper interpretation of the intent of the Constitution. In other words, the Eleventh Amendment does not change the meaning of the Constitution, it merely prohibits citizens (from different States) from suing States. Marshall’s exact words in Fletcher were: “The Constitution as passed, gave the courts of the United States jurisdiction in suits brought against individual States. A State, then, which violated its own contract was suable in the Courts of the United States for that violation. Would it have been a defense in such a suit that the State had passed a law absolving itself from the contract? It is scarcely to be conceived that such a defense could be set up. And yet, if a State is neither restrained by the general principles of our political institutions nor by the words of the Constitution from impairing the obligation of its own contracts, such a defense would be a valid one. This feature is no longer found in the Constitution, but it aids in the construction of those clauses with which it was originally associated.” Therefore, Marshall does not necessarily think Chisholm was completely repudiated by the Eleventh Amendment. In Marshall’s view, Chisholm was a sound decision whose principles still represent legitimate constitutional jurisprudence: Citizens are still sovereign within the structure of the Constitution. Put another way, the Eleventh Amendment was not an open invitation for States to violate the rights of its citizens.

In fact, over Marshall’s long tenure as Chief Justice he restricted the Eleventh Amendment by narrowly interpreting the text. In the line of cases United States v. Peters (1809) and Osborn v. Bank of the United States (1824), Marshall held that the Eleventh Amendment applied only to States and not State officers. In other words, State’s had to be the party of record in the case to obtain sovereign immunity. However, in Governor of Georgia v. Madrazo (1828) the Marshall Court backtracked a bit and established a new doctrine. The Court held the Eleventh Amendment can be applied to cases where the suit is brought against a State office but not to those cases where the individual character of the person holding that office is the purpose of the suit. And of course, in Cohens, Marshall held that the Eleventh Amendment did not apply to States being sued by citizens of the same State. Even the unfriendly Hans Court held in Lincoln County v. Luning (1890), that any subdivision of a State (in this case a county) is exempt from sovereign immunity.

After the Civil War, the Court moved in a positive manner to protect citizens from having States default on contract obligations. In Davis v. Grey (1873), the Court used Osborn precedent (State officers can be sued) and the substantive due process concept of “freedom of contract” in holding Texas violated a land contract with a local railroad. In other words, the State could not pass legislation that would allow a State to default on a property contract. Of course, many scholars like Clyde Jacobs criticized the opinion because it meant State officers could be held liable for State debts. Jacobs also did not like the substantive holding by the Court, but that was not much different than using the contract clause to strike down the law. However, Jacobs admits State officers have never been held liable for debt amassed by a State since the State would repay the debt before an officer was held accountable. And what is wrong with that: A State honoring its contract obligations with American citizens and foreigners. In Board of Liquidation v. McComb (1875), the Court held that the State of Louisiana repaying a bond debt at 60 cents on the dollar was an impairment of a contract. Again, the Court did not let States hide behind the Eleventh Amendment to default or impair their contract obligations with citizens. In the United States v. Lee (1882), the Court even held the United States could not be shielded from immunity in property rights cases because this is a fundamental right of all citizens.

Sunday, April 28, 2019

The Eleventh Amendment and the Contracts Clause (Part I)

It is important to evaluate the adaption of the Eleventh Amendment and its interpretation to see how individual sovereignty and personal contract rights started to diminish very early in United States history.

Eleventh Amendment legal scholars, Clyde Jacobs and Kurt Lash, give some credence that the original intent of the Article III, Section 2 of the Constitution was to provide States sovereign immunity from citizens of different States. Article III, Section 2 provides “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;-- to Controversies between two or more States;--between a State and Citizens of another State;--between citizens of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” In essence, the Eleventh Amendment repeals the clause “between a State and Citizens of another State” of Article III, Section 2.

Jacobs and Lash argue that immunity may be implied in Article III, Section 2, but that seems unlikely. Jacobs argues that “Controversies between two or more States” means the States have immunity or it could disrupt the peace and tranquility of the nation. For controversies between States to be resolved one State must waive its sovereign immunity for the case to move forward. Both Jacobs and Lash further contend the text fails to define whether or not a State could be a plaintiff or defendant. In other words, in their view, a State may bring suit against a citizen as a plaintiff but States cannot be a defendant in suits brought forth by citizens using a very strict reading of the clause. These are not very strong arguments. The strongest argument is that diplomatic immunity arose from the 1789 Judiciary Act interpreting Article III, Section 2. But should diplomats who commit crimes against United States citizens receive immunity from criminal prosecution? It is hard to imagine our Founders, who just finished a War to free itself of crimes committed by English nobility, would provide diplomats immunity from criminal prosecution in the Constitution. The reason diplomats receive immunity is to maintain peace and tranquility among the nations. But any diplomat who gets away with crimes, hiding behind immunity, would also create friction between nations.

The Eleventh Amendment controversy started just four years after the ratification of the Constitution. In Chisholm v. Georgia (1793), the Court correctly ruled (by a 4-1 margin – Only 5 Supreme Court Justices presided over the Court in the early years) that individual citizens could sue State governments because sovereignty rests with the people, not the States per the Ninth Amendment and the Declaration of Independence. However, the ratification of the Eleventh Amendment, in 1795, superseded and repudiated the Chisholm decision. The Eleventh Amendment essentially provided State governments with the power to default on loans with citizens from different States – obviously a violation of any contract.

Prior to Chisholm, there were a few cases that provided precedent to support the Chisholm holding. The Court allowed a foreigner to sue the State of Maryland in Van Staphorst v. Maryland (1791, the case was resolved before trial). Of significance, Maryland did not contest the suit using sovereign immunity. In Oswald v. New York (1792), the Court held that the State of New York owed a widower back pay for her deceased husband’s salary. New York contested the lawsuit using sovereign immunity since they believed they were free from being sued by a person from another State (Pennsylvania).

In English law, Justice John Holt wrote “If the plaintiff has a right, he must of necessity have means of vindication if he is injured in the exercise or enjoyment of it.” Justice James Wilson wrote one of four brief Supreme Court majority opinions for Chisholm citing it is the people of the United States that are the sovereign power, not the States or federal government. Wilson’s opinion was joined by fellow Constitutional Conventionalist John Blair, Chief Justice John Jay (author of five Federalist Papers), and William Cushing. In fact, Wilson, Edmund Randolph and Oliver Ellsworth (future Chief Justice) were on the five-member committee responsible for drafting the Constitution. This committee took proposals from Constitutional Convention members and wrote document drafts which were reviewed, debated, and edited by the entire convention. Without a doubt these founders understood the intent of Article III, Section 2. At the Pennsylvania ratifying convention Wilson proclaimed “[I]mpartiality is the leading feature, there ought to be a tribunal where both parties (State and citizen) stand on a just and equal footing.” Jay suggested since States could sue citizens it only seem fair that citizens could sue States. Attorney General Edmund Randolph, who defended Chisholm, said although States are sovereigns, governments were created for the happiness of the people. Randolph understood protecting the rights of the people is the main objective of governments. James Iredell of North Carolina dissented backing the sovereign immunity argument. However, there is no record of Iredell contesting the meaning of Article III, Section 2 at the Constitutional Convention or the North Carolina ratifying convention.

Iredell’s dissent consisted of a very broad reading of the Article III, Section 2 and his reliance on the law of nations or foreign law. Iredell saw an analogy between civilian suits being denied against a sovereign country (England) and therefore, he reasoned, civilian suits should be denied against sovereign States. Reviewing foreign law is an acceptable action for Supreme Court justices, but it should only be used for guidance. Any opinion must be based on the Constitution and not just foreign laws.

Sunday, April 21, 2019

2019 NFL Mock Draft

1. Arizona Cardinals - Kyler Murray, QB, Oklahoma

2. San Francisco 49ers - Quinnen Williams, DT, Alabama

3. New York Jets - Nick Bosa, EDGE, Ohio St.

4. Oakland Raiders - Josh Allen, EDGE, Kentucky

5. Tampa Bay Buccaneers - Montez Sweat, EDGE, Miss. St.

6. New York Giants - Dwayne Haskins, QB, Ohio St.

7. Jacksonville Jaguars - Jawaan Taylor, OT, Florida

8. Detroit Lions - Devin White, LB, LSU

9. Buffalo Bills - Rashan Gary, DL, Michigan

10. Denver Broncos - Drew Lock, QB, Missouri

11. Cincinnati Bengals - Devin Bush, LB, Michigan

12. Green Bay Packers - T.J. Hockenson, TE, Iowa

13. Miami Dolphins - Daniel Jones, QB, Duke

14. Atlanta Falcons - Ed Oliver, DT, Houston

15. Washington Redskins - Brian Burns, EDGE, Florida St.

16. Carolina Panthers - Clelin Ferrell, EDGE, Clemson

17. New York Giants (via Cleveland) - D.K. Metcalf, WR, Ole Miss

18. Minnesota Vikings - Jonah Williams, OL, Alabama

19. Tennessee Titans - Christian Wilkins, DT, Clemson

20. Pittsburgh Steelers - Byron Murphy, CB, Washington

21. Seattle Seahawks - Nasir Adderley, S, Delaware

22. Baltimore Ravens - A.J. Brown, WR, Ole Miss

23. Houston Texans - Andre Dillard, OT, Washington St.

24. Oakland Raiders (via Chicago) - Josh Jacobs, RB, Alabama

25. Philadelphia Eagles - Cody Ford, OL, Oklahoma

26. Indianapolis Colts - Marquise Brown, WR, Oklahoma

27. Oakland Raiders (via Dallas) - Greedy Williams, CB, LSU

28. Los Angeles Chargers - Dexter Lawrence, DT, Clemson

29. Kansas City Chiefs - Deandre Baker, CB, Georgia

30. Green Bay Packers (via New Orleans) - Parris Campbell, WR, Ohio St.

31. Los Angeles Rams - Jeffery Simmons, DL, Miss. St.

32. New England Patriots - Irv Smith Jr., TE, Alabama

Tuesday, April 16, 2019

Human Nature is to Waste Energy by Living in the Past

If we could harness all the energy people use living in the past, we would solve our national energy problems. It is a shame, but we love to live in the past, and this is all wasted energy. We are all guilty of it to some degree. However, it has become the signature personality trait of many people who lack strategic vision and forward thinking processes. I witness this type of behavior in everyday life. Unfortunately, most good thoughts of the past are usually overwhelmed by bad thoughts so we dwell on failures or thoughts of revenge and getting even.

This negative thought process is what leads to rumors. Ninety-nine percent of all rumors are false stories put in motion by angry people with a vendetta who want to get even with an adversary. In other words, people have an “ax to grind” and this is just wasted energy on something we cannot change the outcome – it is in the past. This does, however, demonstrate that our problem solving skills are non-existent. In fact, it is much more likely that people would blame and point the finger at others then to offer solutions and move forward. This is common in the workplace, and in everyday life.

This behavior is what leads to bullying and today it is much easier to bully using technology and social media. People can use these communication mediums to post anonymous messages. What’s worse, the bullying messages are not even unique – they have been passed down from one bully to the next.

These types of personalities will typically draw conclusions by hearing only one side of the story. And what’s more disturbing, we are more concerned about our neighbors or coworkers lives then we are with our own or our families. It is a sad existence and I feel sorry for these folks. They have nothing better to do with their own lives then to try to ruin someone else’s. And to help their effort bullies are good at brainwashing others. Their posse of brownnosing minions carryout the bullying attacks.

Of course, these same bullies can become hypocrites when they need something. They can turn on the charm to manipulate the people they have been bullying. After all, people usually only contact another human being when they need something. It is no longer human nature to contact families, relatives, friends, or coworkers to see how they are doing.

What is the result of this type of behavior? Unfortunately, the solution is for people to stick to themselves and avoid others. This means not doing anything more than necessary – like volunteering. And it is volunteering that makes this country great. Volunteers put themselves at risk for unwarranted attacks by selfish self-centered narcissists whose only purpose on this earth is to be carbon emitting oxygen thieves. Yes, climate change just may be manmade in the form of useless drivel and wasted energy from people around the globe.

Imagine how much better this world would be if people minded their own business and used their energy and intellect to solve problems without blaming others. Instead, we are a populous of dopes that cannot even come up with their own bullying quotes. Our offspring are learning trivial behavior from their parents that will spiral out of control over the years. It is a sad state of affairs, and we are all guilty of this to some degree.

It is our responsibility to work hard throughout life to better ourselves. I do not see this. It seems most adults are still stuck in our childhood brains – kids will throw their best friend under a bus to avoid punishment. We are still more concerned about suing our friends and neighbors over trivial grievances than simply saying “hi” or waving hello to them when we see them.

We are training our brains to be wired wrong – by being narcissistic self-centered rumor oriented problem creating followers who want to bring people down instead of leaders who want inspire and lift people up. Sure, many people with flawed characters are in leadership positions and they think they are good leaders. But this is far from the truth because they got into their roles by being deceitful lying backstabbing folks unwilling to be accountable or take responsibility for their actions. Instead they are willing to do what is best for themselves and not what is best for the company or others. Brain storming sessions quickly become blame storming sessions and these manipulative leaders will resort to any strategy to protect their shady images including bullying and other passive aggressive behavior.

So it is imperative that humans work hard to be better people by living in the moment to solve future problems. If our personas do not change for the better, our negativity will be the demise of the human race.

Thursday, April 11, 2019

Contracts and Natural Law Fundamental Rights (Part V)

Freedom of Contract

As far back as 1795 in American history, federal courts established contract rights as natural rights necessary to protect property and other individual rights. In Vanhorn’s Lessee v. Dorrance, judge William Patterson (a founding father) declared a Pennsylvania statute to be null and void for violating the contract clause of the Constitution. Patterson did admit that citizens must sacrifice property rights for public welfare (with just compensation), but only under “grave emergencies”.

The right or freedom of contract established by the Court in Lochner v. New York (1905) was powerful (actually freedom of contract was elevated eight years earlier in Allgeyer v. Louisiana, but this case does not receive anywhere near the same attention of Lochner). In Allgeyer, the Court’s justice Rufus Peckham held in a unanimous decision: “The 'liberty' mentioned in [the Fourteenth] amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.”

What made Lochner (and Allgeyer) unusual was the fact the Supreme Court elevated the freedom of contract as a right even though it did not exist in the Constitution. While Lochner v. New York only protected economic contracts, it is apparent that freedom of contract could be used to protect rights that exist in the Bill of Rights such as property rights (buying and selling property is protected by contracts) and religious rights (contract with pastor, priest, deacon, and even the bible or God). That is why conversations between a spouse, doctor, or religious leader are considered privileged, because they are protected by a contract. Freedom of contract could also protect other rights not included in the Constitution such as worker rights (implied contract between employer and employee) and civil rights (implied contract of decency, tolerance, and respect to avoid violating the rights of others – the golden rule). Therefore, the right or freedom of contract is a powerful tool to protect both individual rights within or outside the Constitution. However, the Supreme Court (also referred to as “the Court” throughout this book) rescinded this right under FDR’s progressive New Deal Court in cases like Nebbia v. New York (1934), Parrish v. West Coast Hotel (1937), and Wickard v. Filburn (1941). While the right to contract was killed by the Court, the Court continued to elevate other rights not found in the Constitution including privacy, marriage, sex, abortion, and self-defense to name a few.

There is a zero-percent chance the Court will restore the right of contract. Why? Both the Right and Left abhor the Lochner v. New York decision. It is estimated that fewer than 5% of legal scholars believe that Lochner was a good a decision and the remaining 95% are ecstatic it was overturned. Consider the fact that 90% of legal scholars believe that the Slaughter House cases (1873) were decided improperly. Yet, the Court has refused to overturn that case after 140 years. If the Court is that reluctant to overturn a case that most agree was wrongfully decided, then there is no chance the Court will reinstate Lochner and the freedom of contract. There is, however, a strange relationship between Lochner and the Slaughter House cases. The dissent argument in the Slaughter House cases was not much different than the majority opinion in Lochner. Thus, it begs to reason why one opinion is revered while the other is demonized? Nevertheless, this conflict may be precisely the reason the Slaughter House cases have never been overruled.

So why write a book about the freedom of contract if it has no chance of being restored? To illustrate how the Court has veered from the true textual meaning of the Constitution diminishing its power to protect the rights of all Americans. Had the Court remained committed to the textual meaning of the Constitution and the right of contract, it would have proved to be a useful tool to solve both conservative and liberal problems without the Court doing whatever it takes to obtain a desired result including using discrimination, controversy, and legislative activism.

Saturday, April 6, 2019

Contracts and Natural Law Fundamental Rights (Part IV)

United States citizens tried to inject social compact theories into welfare debates. The land reformers of the Nineteenth Century tried to argue that land belonged to everyone equally. Their theory suggests there should be no private property, that land should not be bought, sold, gifted, or willed. Moreover, they argued that the living, not the dead should control the land. Land reformers would argue that the sea, light, and air are all publicly owned. All that being said, none of the great theorists of social compact theory agree that all land should be publicly owned and redistributed to only living citizens. In their defense, Land reformers like to point to Locke’s statement: “Labor makes for the greatest part of the value of things.” However, this is not condoning welfare or land redistribution. It is condoning capitalism and those that work will have the best opportunities to reap the benefits of their labor and to purchase land. In fact, one of the biggest arguments made by land reformers is that it will reduce the size and power of government. Of course, we have learned that none of this true in modern America. Redistribution of wealth and welfare has grown the government in astronomical proportions over the past 60-years. Land reformers best argument from social compact theory comes from the Pufendorf point of view where citizens natural law rights are not absolute and therefore property rights can be abridged for any reason the government sees fit. However, this is the antithesis of the social contract theory America was founded on. Even if rights are abridged there must be a compelling reason and the government must use the least evasive method to achieve its objective. The Homestead Act of 1862 proved that land equality did not work. People who received free land got greedy and willed it to their children. This ended the land reformers bid for perpetual land equality. This is precisely why socialism does not work: everyone is partial to their own needs and greed. Besides, land reformers arguments that “land cannot be bought or sold” conflicts with modern liberalism principles that that rights such as healthcare can be bought and sold.

Modern progressives and liberals have moved away from the Declaration of Independence refuting natural law fundamental rights and social contract theory. However, using social contract theory arguments in favor of illegal immigration, lenient immigration laws, and gay rights would make more sense than the hollow arguments put forward merely to win political points (and votes). There are several reasons for liberals abandoning social contract theory. In particular, many progressive or liberal policies do not fit into social contract theory and the principles outlined in the Declaration of Independence. For instance, capitalism or economic freedom and private property rights are all supported by social contract theory. Also, it is important to understand that original progressives were racists. They believed in racial purity and therefore were proponents of anti-immigration, segregation, and legislation against women’s rights. But it was not just progressive and liberals dissing the Declaration of Independence. Far right conservatives did the same thing in the 1970s in response to the civil rights movement started in the 1960s. The bottom line is that the Declaration of Independence is long forgotten in modern society, taking a back seat to the incorporation of the Bill of Rights to the States (discussed later in this text).

The turning point in the movement against social contract theory started after the Civil War. After a brutal war, the people feared Lockean and Declaration of Independence principles of revolution and secession. The move from popular sovereignty to government sovereignty took many forms: majority rule, emergencies, social justice, presumption and other methods discussed later in this text. America began to look more like Alexander Hamilton’s view of big government over Thomas Jefferson’s political principles. A change in focus from political to social issues was also fundamental in mitigating social contract theory. There was a progressive ignorance indicating “creative political intelligence” was needed to “tame” social contract theory. However, progressives fail to see how social contract theory protects social rights such as friendships and community relationships. Progressives also incorrectly hypothesize “society makes individuals, individuals do not make society.” Obviously both statements are true, not just one.

Freedom of contract to protect natural rights was also hypothesized as a method to replace social contract theory: “There was no lack of postbellum lawyers and judges who deemed freedom of contract under the law a far safer bet than a social contract above the law.” But this text believes there is no reason that freedom of contract and social contract theory cannot coexist since both protect natural rights and popular sovereignty. And freedom of contract may not support overthrowing the government but it supports the formation of political assemblies and protests (social contracts) to keep government in check.

Is social contract theory dead in modern America? Yes, and the reasons are outlined below:

• A “state of nature” died a long time ago. A state of nature implies little governance so citizens can live free with nature. But as populations and society grew with technological advances much of the United States is no longer in a state of nature but is now a land of laws, institutions, and traditions.

• Supreme Court justice, Oliver Wendell Holmes, did his best to destroy the “higher law principles” of social contract theory. Holmes said “The jurists who believe in natural law seem to me to be in that na├»ve state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere.” Holmes and other progressives such as Walter Lippmann moved society away from higher law principles to one of majority rule. Lippmann said “Politics is not concerned with prescribing the ultimate quality of life.” Moreover, Lippmann suggested “that the public philosophy shall be believed to be right.” However, all that being said, following natural law principles does not violate the right of others, but majority rule in United States history has been used consistently to violate the rights of our neighbors (more on this later in the text).

• The question of who consents to the social contract is open for debate. And is consent absolutely necessary for social compact theory? There is no question that the founders and their generation consented to the Declaration of Independence and the Constitution. They signed the documents and even held state ratifying conventions for the Constitution. But, no one has officially signed on to these documents in over 240 years. .

Do United States citizens and aliens consent to government? The answer is both yes and no. There must be both political authority and political obligation for consent. Political authority is when “the leaders get the right to govern only those who agree to give them this right in a social contract”. Political obligation is when the “people are obliged to obey the state’s orders only if they agreed to do so in a social contract”. Those who do not consent have more rights than those who do consent. So, who consents to social contracts? Those who take an oath to uphold the Constitution; immigrants (illegal or legal) who move to the United States; those of us who inherit property; people who violate the rights of others (criminals); those of us who take more out of system (welfare and public benefits) than put into it (taxes); even those individuals or companies who benefited from temporary welfare benefits or bailouts have consented unless they paid back their grants with interest; individuals who fail to pay their taxes on time or cheat on their taxes; certain individuals and companies who work for government contracts; and military personnel as well as many public jobs. From this it is easy to surmise that a majority of Americans do consent to government and the social contract theory. Non-consenting individuals’ natural law fundamental rights should be honored as outlined in those critical documents at the founding: The Declaration of Independence, the Northwest Ordinance, and the Constitution. Consenting individuals’ rights might be abridged. For instance, military personnel lose rights when they tried in military tribunals; Criminals are confined and even when they are free they face parole guidelines such as being forced to wear a tracking device; Welfare recipients, if the government wanted, can be drug or alcohol tested and compelled to work jobs they do not want for their benefits; Public officials can be held to higher criminal standards such as treason; Layers, who take an oath to uphold the Constitution, can be disbarred for life from practicing law if they violate their duties whereas, most individuals who are fired from a job for violating ethical standards can simply get a similar job at another company. One thing is certain, consenting or not, all citizens should be held to the principles outlined in the Declaration of Independence and Constitution. Put another way, citizens and aliens consent only to Constitutional laws but no one consents to unconstitutional laws.

It is the view of this text that most Americans do provide consent and those who have not consented can be held to the principles of the Declaration of Independence and Constitution so long as their rights are not abridged for any reason. So, consent has sort of survived the test of time.

• Human or natural rights are the only aspect of social contract theory that has sort of survived the test of time. However, the “rights revolution” starting in the 1970s has increased the number of rights, but in doing so, it has also diluted our rights. Animals, nature, and abortion rights do more to mitigate our natural fundamental rights because it suggests elective surgery, a tree, and even drinking coffee are on par with true natural law fundamental rights such as obtaining knowledge and the sanctity of life. Instead, animals and nature can be protected through “human” contract rights with nature. In fact, social contract theory and a state of nature can be formulated to protect our environment. Social contract theory and higher law principles can also be used to protect nature as God intended. To make matters worse, many rights given to women, gays, and minorities in the form of diversity and affirmative action provide some groups of people preferential treatment. One should remember President Andrew Jackson’s campaign slogan: “Equal rights to all; special privileges to no one”. President’s Woodrow Wilson and Herbert Hoover would do a huge disservice to rights by suggesting “human rights over property rights”. After all, what good are an individual’s rights if the home they live in is confiscated by the government without just compensation. Finally, Franklin Delano Roosevelt (FDR) campaigned on social contract theory in 1932. However, in reality, his social contract theory was, in essence, social justice or welfare doing another huge disservice to the doctrine. But, in FDR’s defense, he was not the genius the Left made him out to be because he merely copied what France had already accomplished with regards to social rights.

Can social contract theory be resurrected? Probably not, although many have tried. Newt Gingrich’s “Contract with America” was at best a pseudo reenactment of the social contract theory. This text focuses on what reforms are needed to protect our true natural law fundamental rights to stop the dilution of rights (freedom of contract). This text is not trying to accomplish this goal by reinstating social contract theory but it will try to achieve this task through other Constitutional methods. Besides, it is not acceptable to pick and choose which parts of social contract theory are acceptable and which ones are not. Case in point, by doing so, the South found ways to justify slavery. However, the South could not justify slavery if they followed the entirety of Lockean and Jeffersonian social contract theory. For this reason, this text would like to see the full reinstatement of the Jeffersonian Declaration of Independence preamble for United States social contract theory. But that may not be possible based on the damage it has already undertaken.

Sunday, March 31, 2019

Contracts and Natural Law Fundamental Rights (Part III)

Americans should never forget the preamble of the Declaration of Independence has been critical for providing civil rights to minority classes of citizens in United States history where the Constitution failed: ending slavery, woman’s suffrage, and other civil rights fights. For instance, the Missouri Compromise used the Declaration of Independence social contract theory to prevent slavery in certain territories; the women’s movement started in 1848 with the Declaration of Independence; the labor movement in the 1800s found both political and social freedoms in the Declaration of Independence; Abraham Lincoln moved the nation towards war using the principles found in the Declaration of Independence; communist organizer, Eugene Debs, discovered how the Declaration of Independence could support his labor movement; three time Democratic Presidential Candidate, William Jennings Bryant, used the Declaration of Independence to point out American hypocrisies dealing with persons of newly acquired territories in the Spanish-American War (Imperialism: social contract does not support conquering and governing those who do not consent); and Martin Luther King’s “I have a Dream” speech is based on those social contract theories found in the Declaration of Independence.

All that being said, early in American history and up to the present time, the Declaration of Independence has been attacked by many saying it has no relevance to the Constitution and it does not apply to everyone equally. This surely explains the Southern philosophy to defend slavery and even the Northern philosophy to deny free-Negroes and women equal rights. In their famous debates Senator Stephen Douglas would say Abraham Lincoln was no different than King George III. Douglas would elaborate by suggesting just as King George III passed laws regulating property (taxes) without consent, Lincoln’s emancipation of slaves would be no different. However, most people, like Douglas, would confuse the social contract theory of popular sovereignty with majority rule democracy: they are not the same because majority rule democracy places sovereignty in the government even without consent of the people. Put another way, Douglas believes it is the will of majorities to decide government policy based on political sentiment at the time and not that the natural law fundamental rights of every person are the same. Of course, Southerners had no issue arguing in favor of Lockean social contract theory and the Declaration of Independence when they held they had a right to revolution and to secede from the Union.

Social contract theory has taken many forms in world history and it is important to show its progression in the United States history. In particular, to show how America has veered from the social contract theory found in the Declaration of Independence. Interestingly, early American history saw both the Patriots and Loyalists favor the social contract theory put forth by Samuel Pufendorf a century earlier. Pufendorf theorized that due to the social nature of man, they create societies. This, according to Pufendorf, is the “first contract” to establish a State where people create a government and therefore, consent to be ruled. Pufendorf differs from Locke because his theory consists of a double contract. Pufendorf’s second contract is “submission”. In other words, citizens must conform, even to a rogue government, because natural rights will be sacrificed regardless as to whether or not the government is legitimate. Since citizens provide the government with consent, Pufendorf rules out that governments can be coercive. Pufendorf’s theory of social contract can be summarized in one word: Peaceful. There is no contract to overthrow a government since peace must be maintained at all costs. One could see how this fits the Loyalists view to defend England against the Colonies. It also fit the early movement of American Patriots because their motto was to protest English rule, but to do so peacefully and to follow the law. As Americans pushed for freedom via revolution, American Patriots adapted John Locke’s views. The fight over the Constitution between federalist and anti-federalist also became a battle over Locke and Pufendorf respectively. Federalist and popular sovereignty won with the Ninth Amendment while the anti-federalist won major concessions with the other Bill of Right amendments securing a second contract between citizens and government.

Social contract theory was utilized extensively by both the North and South leading up to the Civil War. Northern abolitionists adhered to John Locke’s theories of popular sovereignty, social contract, and natural rights (all men are created equal). Northerners also adhered to John Locke’s revolutionary principles threatening to secede from the South on many occasions. Legal scholars such as John Marshall, Joseph Story, and Daniel Webster would maintain that it was the “people’s constitution”. Dorr’s Rebellion (1841), in Rhode Island, was a perfect example of people using social contract theory. Citizens rebelled because they wanted to update the State constitution to be more representative of the people.

On the other hand, the situation in the South was complex when it came to social contract theory. The South would use John Locke’s revolutionary principles to argue their right to secede from the Union. When it was convenient, Southerners would use social compact theories and principles put forth by Pufendorf to defend slavery. Since, according to Pufendorf, there must be submission of the people to maintain order even in the face of a rogue government, it is easy to see how individuals or citizens could become slaves of the State. In this sense, Pufendorf would argue that rights became duties to maintain the peace, even if the duty was to support slavery. Pufendorf would rationalize slavery by suggesting that masters owned only the slaves labor, not the entire man. And when it was convenient, the South would use social contract theories put forth by Hugo Grotius to defend States rights and federalism. During the expansion West, Grotius’s social contract and federalism reinforced each other. The South maintained the Union was a mere alliance of States, thus social contract theory only applied to the States. Did “We the People” of the Constitution suggest we the people of the Union (North), or we the people of the States (South)? This text believes that social contract theory applied to both the Union and States. Finally, the South rejected all social contracts when faced with more consistent and logical arguments by Northerners. For this reason, many Southerners embraced Edmund Burke since he did not believe in natural law fundamental rights or social contract theory. Since the Civil War, only one famous American truly embraced Burke, and that was Woodrow Wilson. Wilson would use Burke’s dismissal of natural law to defend his racism similarly to how the South would justify slavery. After all, with no social contract to ensure equality, then it is acceptable to discriminate against certain groups of people. Wilson would eventually drop his support of Burke as he moved to progressivism. However, Wilson’s progressivism was perverted because he would protect natural law fundamental rights of white males while neglecting the rights of everyone else.

Tuesday, March 26, 2019

Contracts and Natural Law Fundamental Rights (Part II)

Free will choices are first order decisions that are made prior to any moral choice. At times free will choices will conflict and leads humans to their second order decision-making process. When this happens, the morality, decision-making process takes priority over deciding tasks based on moral rules such as the “golden rule” (treat others as you expect to be treated) or the Pauline Principle (evil cannot be done even if good may come from the action). The first principle of morality guides citizens to make decisions which strive for the fulfillment of humanity. Free will decisions are not natural (or controlled by nature), but the natural law fundamental rights and moral decisions are controlled by nature or some higher being (God).

Society creates what is known as positive law which is derived from natural law. Positive law consists of community laws and statutes which guide citizens to make correct moral decisions such as laws against crime like murder or theft. It is also the belief of this text that judges can enforce natural law when legislative laws diverge from natural law even though many scholars believe that judges have no Constitutional authority to do so. This is false. Judicial review and the original intent of the Ninth Amendment, the privileges and immunities clause, and due process clause of the Constitution are the reasons why this characterization is false (discussed in detail later).

Natural law is an excellent guide to protect individual rights. However, natural law theory gets very complex and asserts things such as sodomy, pre-marital sex, adultery, fornication, masturbation, contraception, sex toys, pornography, addictive behavior, gambling, and homosexuality are morally wrong. Natural law explains there is a difference between certain types of pleasure. For example, sitting in a rocking chair would be considered an innocent pleasure whereas viewing pornography would be an evil pleasure. But this is a fine line: for example, where do you draw the line between art and pornography? Where do you draw the line between art and obscenity? Which historical novels do we ban for political correctness in the name of protecting youths from obscene language? The problem these questions creates is obvious: It means legislative and judicial opinions and biases will develop balancing tests to define what is pornography and what is not. Where natural law theorists stray away from common sense is when they treat individual action or behavior that does not violate the rights others as violations of natural law principles. Action or behavior that does not affect others (non-consenting persons) should be acceptable since it does not violate the common good. Even if doing drugs or masturbation are considered morally unacceptable actions, but should these actions be considered a crime or as violating natural law if the behavior does not violate the rights of others? Strict natural law theorists would say yes. But this creates conservative legislators and judges whose laws end up violating individual rights. For instance, Supreme Court morality precedent insists growing medical marijuana is not allowed to relieve chronic pain (even with a doctor’s prescription) does not violate anyone’s rights. Nor does anyone see how the right to work is severed by laws that make selling sex toys or pornography illegal. When this happens, judges and legislators are taking morality too far. After all, if it were a crime to limit all types of individual behavior based on natural law morality, a large percentage of the populous would be in prison.

And let’s not forget the hypothesis of this writing: to elevate freedom of contract as one of our natural law fundamental rights. In order to accomplish this task, it is imperative to understand how Supreme Court elevates fundamental rights which are not enumerated in the Constitution. There are three methods: The Ninth Amendment, the privileges and immunities clause of the Fourteenth Amendment, and the Supreme Court doctrine known as substantive due process. Each method will be evaluated in detail.

Social Contract Theory

This text will adhere to the social contract theory written in the preamble of Declaration of Independence (the text is not trying to reinstate the doctrine, but only adhere to it). United States social contract theory is a contract between the government and the people and it has three main parts. First, there is a contract to form a government to protect the higher law natural rights of consenting citizens. Secondly, if the government fails to protect the rights of its citizens then it is the duty of citizens to overthrow the government. Thirdly, it provides less governance is best to maintain a desired state of nature.

The Declaration of Independence says: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” This social contract theory written by Thomas Jefferson closely follows the theories set forth by John Locke. In Locke’s view no government or law was above the sovereignty of people (popular sovereignty). Locke was a master in defining the “principles” of government. Thus, the American Revolution became a movement over principles rather than over the form of government. Many liberal reformers like to downplay the social contract aspect found within the preamble of Declaration of Independence by focusing on the other parts of document or by incorrectly comparing it to the English Declaration of Rights which provided sovereignty to government (Parliament). The Declaration provides a perpetual contract where the people can change government whenever it is not properly protecting the rights of citizens. However, Jefferson writes “government long established should not be changed for light and transient causes”. In other words, there must be a legitimate reason for changing government, it cannot be merely for political and ideological difference. The French Declaration of the Rights of Man and of the Citizen of 1789 basically endorses the Declaration of Independence’s use of Lockean social contract theory giving credence to the document.

Thursday, March 21, 2019

Contracts and Natural Law Fundamental Rights (Part I)


A contract is defined as “a written or spoken agreement, especially one concerning employment, sales, or tenancy, that is intended to be enforceable by law”. Legally, a contract may also be “unspoken” or implied. Contracts are a big part of our everyday life. For instance, most business contracts are conducted with a hand shake. This is a “promissory obligation” contract that is binding and can be enforced by the law. At a minimum, breach of a promissory obligation would yield a lack of trust in that person or party by the public. This is why Congress has such low approval numbers (they do not keep promises). Individuals enter into dozens of contracts every day. Every money transaction that takes place is a contract. Thus, most people have contracts to cover phone, energy, home, water, TV, internet, food and other expenses such as insurance, car, services, and healthcare to name a few. The Constitution contains a contracts clause which protects lenders from borrowers defaulting on their loans. A person has two options when it comes to contracts. First, they can refuse to enter into a contract agreement or secondly, they can accept a contract agreement.

There are three legal reasons a court may void a contract agreement (outside coercion and exploitation): Public policy reasons, unconscionability, and bargaining power inequity. But courts have used these reasons to void perfectly good contracts, where there has been no coercion or exploitation, by the parties partaking in the contract. Take, for example, bargaining power inequity: Parties in exact equality have no reason to enter into a contract. For instance, there must be some inequity for Party A to enter into a contract with Party B. In other words, Party A wants more of what Party B has available for sale. For this reason, many bargaining power inequity rulings are bogus. Public policy reasons lead judges to input personal biases and opinions into decisions. For example, in a Massachusetts surrogacy case (R.R. v. M.H, 1998) the court sided with the surrogate mother who breached her contract by keeping the baby. The judge ruled it is not normal public policy to sell babies. This is obviously the judge’s opinion; if it is normal public policy to abort a baby, then why can’t people sell a baby, especially to prevent an abortion? 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. Put another way, the furniture store was out the remaining amount due in the contract in addition to the furniture. In this decision, the court had empathy toward the plaintiff because she was poor. But the court’s decision would negatively affect hundreds of poor people living in the same neighborhood. In response to the decision, the furniture store reduced credit levels and raised prices to cover lawsuits since they could no longer repossess items for breach of contract. In another example, California courts have barred companies like Circuit City from using arbitration as a way to solve employee disputes. Instead, courts want companies to face lengthy and more expensive class action suits instead of settling disputes via arbitration. These actions force companies to cut employees, reduce wages, and or pass any increased legal costs onto the consumer.

But contracts are much more than the lender and borrower relationships. Implied or written contracts protect other types of relationships such as employer and employee, student and educator, and marriage between two persons. Implied contracts also protect our friendships. After all, true friends should be responsible to look out for the welfare of their comrades. Family is the core of society, but friendships (relationships: friends, workmates, and political acquaintances) are the glue that holds communities since relationship contracts work for the common good (general welfare) of the society.

It can be argued that contracts include the unspoken or implied relationships between one’s self and every other person in the world. After all, we cannot violate the rights of another person even if they are a stranger. Hence, a contract is implied that all humans will treat other humans with dignity, decency, tolerance, and respect to avoid violating the rights of others. A contract with humanity is not much different than the Golden Rule where individuals should treat others how they expect to be treated. Furthermore, John Quincy Adams felt society as whole is a contract “a partnership not only between who are living, but between those who are living, those who are dead, and those who are not born.” In other words, the living must respect the dead and at the same time pave the way for future generations. For example, Americans should never forget the millions that have died fighting for their freedom. For all these reasons, contracts are powerful and control just about every action an individual may partake.

Most definitions of contract say it is an agreement between two or more parties, but individuals make personal contracts in the form of schedules, goals, and missions that they want to achieve. It is a natural law principle that humans have the right to pursue and develop a life plan. These personal contracts are important for several reasons. First, they define our personality because these types of agreements are the easiest to break (like a New Year resolution). Those that achieve in life will more than likely attain most of their individual contract goals. On the other hand, those that fail in life will ultimately quit on most of their individual contract goals. For this reason, it can be argued that biggest disability facing Americans is that of quitting on our goals or personal contracts. Secondly, it is important to remember that all individuals have the “right to pursue happiness” but nobody is “guaranteed happiness”. The only way to achieve happiness is to set difficult goals and to attain them. Even this may not guarantee happiness but failing to meet goals will almost certainly lead to a miserable or handicapped existence. Consider how many Americans (environmentalists) believe that man has an implied contract with nature or the planet Earth. These individuals want humans to leave this planet a better place than when we entered into it. This would fit the social contract put forth by John Quincy Adams in the previous paragraph. This may also be an example of natural law and God’s contract with humans and vice versa. If this is true, then persons following this “implied” contract must set lofty goals in personal contracts to achieve the outlook they want for the planet. After all, anything worth achieving in life will never come easy.

Natural Law Fundamental Rights

It is also important to understand natural law fundamental rights. Natural law fundamental rights are higher level rights sometimes referred to as simply natural law. Natural law rights “must be recognized as self-evident to all.” A natural law right is one that would be right, good, and responsible (as opposed to wrong, bad, and irresponsible) for personal fulfillment and the general good of humanity (common good). Fundamental rights and natural law rights are usually identified as individual human rights, but in actuality they are collective rights because everyone has the same rights. Natural law rights are rights that all people are born with and they cannot be taken away by others or by any government. A few of these fundamental rights are outlined in the Bill of Rights of the Constitution. Fundamental natural law rights are contracts between a person and a higher being (it can be God or whomever you believe gave you the natural freedoms you enjoy). Government can protect these rights, but they cannot generate a fundamental right because fundamental rights existed before the creation of government and laws. But what happens when our fundamental rights are being violated by others or the government? It is then the job of the courts and our judicial system to protect our fundamental rights, even those that are not enumerated in the Constitution. But the Constitution does not protect individuals, whose rights are being violated, from wrongly decided Supreme Court cases. For this reason, this book will extensively evaluate the role of the Supreme Court in defining and defending enumerated and unenumerated natural law fundamental rights to protect God’s natural law contracts with each person in society.

Briefly, to better explain natural law, first there are several fundamental rights which guide our free will choices. Those natural law fundamental rights include the right to work, play, friendships, marriage, health, life, property, contracts, knowledge, enjoyment of nature and arts, self-preservation, religion, family, free speech, the right to vote, travel, and justice to name a few. Our free will decisions ideally strive for personal fulfillment for the common good. Free will decisions or choices should be made without the interference of emotions and feelings but instead be based on sound reason. According to natural right scholar John Finnis “Natural Law assumes that men had certain duties toward one another, as social beings, and had certain rights that men must respect.” Moreover, natural law principles conclude there should be “no arbitrary preferences among persons” to eliminate hypocrisy, biases, opinions, and selfishness. Furthermore, “There is no human right that will be overridden if feelings (whether generous or unselfish, or mean and self-centered) are allowed to govern choice ….”