Restoring the American Dream (Part V)

The Court has ruled that local, state, and federal monopolies are off limits from Sherman Anti-Trust suits (Parker v. Brown, 1943). Even when the government uses licenses and zoning laws to deny persons a lawful occupation, the Court has protected the government. Why would anyone need a funeral director license to learn how to embalm a corpse to sell coffins online? Someone should be able to sell a box without government interference. Why would anyone need a license and hundreds of hours of training to drive a cab or to be a florist? There is no rationale for this because these laws do not protect the health or safety of Americans. Governments continually protect local and national monopolies. Yet, the Court has broken up private companies such as ALCOA (1945) using the Sherman Anti-Trust Act. ALCOA’s crime was it sold aluminum products at a low cost for its customers. ALCOA did not do anything unlawful to eliminate competition such as price gauging and this was even admitted in the Court’s majority opinion by Justice Learned Hand. The Court held that the objective of the Sherman Anti-Trust Act was to not only punish unlawful behavior but lawful behavior. Alan Greenspan would call the ALCOA decision a travesty because they were punished for being too efficient. The end result allowed other aluminum producers into national markets who sold products at higher costs to customers. What a surprise, the Court screws American citizens again. Hence, when it comes to monopolies the Court rewards bad behavior, and punishes good behavior. The Court and our local, state, and federal governments are continually on the wrong side of justice especially when it comes to protecting individuals pursuing the American dream and the pursuit of happiness.

When it comes to restoring the American dream, and upholding the pursuit of happiness the Court should follow a few basic rules. First, restore the freedom or right to contract. Yes, this will override the New Deal progressive agenda that allowed the government to regulate anything economic, but that is the point. Families should be allowed to grow as much wheat on their property as they want; children should be allowed to work before the age of 16 to save money or help support their family; companies should be allowed deemphasize the power of unions; and workers and employers should be able to work as many hours as is advantageous to both parties. Second, laws and regulations as well as legal contracts must benefit person A the same as person B. This will clear up reverse discrimination, misguided morals, and misguided Contract Clause interpretations by the Court. Third, the Court should reverse Whitman and hold Congress accountable for creating and monitoring all laws. Fourth, the Court should only allow federal government departments and agencies that support some enumerated Constitutional function. Fifth, the Court should restore the Contracts Clause which would stop this never-ending saga of our Court system of allowing persons who use products incorrectly from wining lawsuits. Sixth, make the loser of a case liable for the court costs to cut down on frivolous lawsuits. Seventh, the Court has to stop defending unlawful government monopolies and prosecuting lawful private monopolies. Finally, it is acceptable to elevate fundamental rights not mentioned in the constitution such as the freedom of contract which has already been accomplished in Meyer.

When providing fundamental rights constitutional protection using the due process clause, the privileges and immunities clause, or the Ninth Amendment the Court should follow a few rules. First, the fundamental right should be “deep rooted in American history and tradition” (Glucksberg v. Washington, 1997). Second, it is imperative to write the fundamental right in narrow terms to avoid ambiguity and arbitrariness. For instance, the right to privacy is broad and ambiguous. Remember, the right to privacy is not absolute because the Court would not allow criminal private behavior such as rape or incest. Most crimes happen in private. Hence, Griswold v. Connecticut could provide married or consenting partners privacy rights regarding lawful sexual activity and family decisions. This is a narrowly tailored right but still broad enough it would have covered later decisions made by the Court: Baird v. Eisenstadt (1972), Lawrence v. Texas (2003), and Troxel v. Granville (2010). Third, it is important to define and elevate fundamental rights that 1. Do not conflict with other fundamental rights, 2. The Right is not controversial – in other words, it is something that we can all agree with 100% of the time, 3. The Right is not purely political, 4. The Right is a natural right we are born with, and 5. The Right is not a government created right or entitlement. For example, abortion violates all of these conditions because it does conflict with other rights such as the right to procreate, and it is political, controversial, and a government created right. And we can also say abortion is not deep rooted in American history and tradition because it was never an acceptable practice. Troxel v. Granville is not a controversial case because the fundamental right for parents to make decisions regarding their children is widely accepted. While Lawrence may be less controversial if the fundamental right elevated was not sodomy sex, but instead includes all sexual behavior between consenting adults. Homosexual sex may not be deep-rooted in American history and tradition, but sex is. And of course, some rights may conflict such as religious freedom and the rights of homosexuals, but these conflicts are marginal and far and few in between. Unfortunately, we make a big deal out of these issues. In Masterpiece Bakeshop v. Colorado Civil Rights Commission (2018), a baker was compelled to make gay marriage cakes even when it violated his right of conscience. This case is a conflict of rights, but every store owner should be allowed to deny business (or contract) if it violates their First Amendment rights of conscience. Sure, this may lead to more discrimination, but businesses who truly discriminate will face public scrutiny and lose market share. The First Amendment protects hate speech so long as it does not incite violence. Hence, it is okay to hate other people for discriminatory reasons. But once word gets out that a business will not serve Jews or African-American simply because of their faith or race then that business will more than likely be forced to close its doors when they lose market share. Government interference over customer discrimination is no longer necessary because modern societal morals will punish business owners. For example, just this past week, a Colorado Coffee business posted a discriminatory remark on a store sign. The coffee shop has since faced constant protests and they have been forced to close down without any government interference. Today, more than ever, Society can punish without government interference mainly because of social media and fast-moving information. Besides, shouldn’t a business owner be allowed to deny service (a contract) to a discriminatory person such as a White Supremacist or a Homophobe or a Islamaphobe. Why should an African-American baker or Jewish baker be compelled to bake a Confederate Flag or Swastika cake?

Restoring the American Dream (Part IV)

There are many other ways the government interferes with the pursuit of happiness. The Court has rewritten the Contracts Clause to treat persons working in the financial sector as second-class citizens (Home Building and Loan Association v. Blaisdell). Allowing one side of a contract to default deprives liberty to the other side. Later Contract Clause cases have voided contracts even when customers use product incorrectly allowing them to win frivolous lawsuits. In Grutter v. Bollinger, the Court held that laws which permit reverse discrimination are acceptable denying many their rightful pursuit of the American dream and happiness. In Raich v. Gonzales, the Court used misguided moral standards to deny persons seeking pain relief using medical marijuana with a doctor’s prescription. Another moral standard which violates individual rights are laws which make selling “sex toys” illegal. These types of laws violate the right of both the business owner to pursue a lawful occupation and the customer who will use these products in the privacy of their home. Just because it is something we would not do, it does not make it wrong: If it makes others happy then it should be legal. Every person should have an equal opportunity for a good education, but the government prevents this from happening. The biggest issue in education is not money, but instead unions which protect bad teachers and prevent impoverished kids from having access to a private education or the public school of their choice.

The government has gone rogue for a number of reasons explained above, but there is another chilling reason why this true. In Whitman v. American Truckers Association, the Court permits the practice of letting federal agencies write and enforce laws without Congressional oversight. This is a direct violation of the Constitution which says all laws must originate from Congress. With over 300 agencies invoking their pet projects on American citizens, it is no wonder regulation is out of control. One may ask how can this happen? Well, the answer is simple. First, the government is trying to do too much so it delegates most of its work to agencies. Secondly, Congress cannot be expected to be experts on all things. Thus, the Court finds it acceptable that Congress can be complacent and delegate their jobs to other agencies. Congress loves this outcome because they can play ignorant with their angry constituents by using John Banner’s (and Obama’s) favorite line of defense: “I know nothing” about that. Unfortunately, they are probably being truthful about their ignorance.

Most federal agencies may be pushing what is a noble agenda, but the outcome is usually what I refer to as “tunnel vision regulation”. The outcome of “tunnel vision regulation” may help achiever or further the agencies cause while at the same time creating dozens of other obstacles for a business or individual to navigate. What’s worse, most government agencies perform functions which are outside the realm of enumerated powers outlined in the Constitution. Correcting this monstrous error is not only going to be difficult, it seems to get progressively worse each year with new agencies being added to the government mission creep statement. Of course, we all know what happens when a mission of any entity becomes too large and convoluted – it becomes inefficient and wasteful. Most companies only make one or a few different kinds of products for good reason: to have focus and to become proficient in making that product. The government is trying to do too much and mission creep is a massive problem.

The Environmental Protection Agency (EPA) is a prime example of a rogue agency with a highly charged political agenda which makes the American dream and the pursuit of happiness harder simply because they drive up energy costs. It is one thing to have clean air and water, but it another thing to create market chaos with the whole “green” hysteria agenda. The Obama administration’s Internal Revenue Service (IRS) targeted charity groups solely because of their political affiliation violating their right of conscience. Targeting people because their beliefs do not fit our own is wrong and is the antithesis of the guiding principles our country was founded upon in the Declaration of Independence such as the pursuit of happiness. The bottom line is that agencies with no oversight will go rogue. Until the federal government mission and agency power are reigned in, the American dream will continue to slip further away for many. How can this be corrected? First and foremost, the federal government needs to concentrate on enumerated Constitutional powers. For instance, the EPA can be abolished and the job of monitoring pollution issues can reside with the States and the Commerce Department (for pollution that travels and affects interstate commerce and public health and safety). That seems to be a fair compromise because we can still have clean air and water without driving energy costs sky high. Tax reform can downsize and diminish the role of the IRS. Law enforcement agencies such as the FBI, CIA, DEA, ICE, NCIS, ATF, and so on can be consolidated in some manner that may make the dissemination of information more reliable. The FBI can be abolished because it has proven over the past decade that it is rogue organization because it basis it outcomes on political ideology, not the law. Other departments such as education, agriculture, health and human services, and housing and urban development can be abolished in favor of State jurisdiction.

Restoring the American Dream (Part III)

Takings are the most intrusive form of government interference and regulation over the American dream. The Constitution says government can use eminent domain only if the takings are for public use and with just compensation. But what gives government the right to take property from the poor and give it to wealthy land developers (Berman v. Parker, 1954)? In fact, the government can take property from anyone if the outcome is one of public benefit and not one of public use. Hence, the Court decision in Kelo v. New London (2005) allows the government to take property from a person if the outcome is more jobs and or higher tax revenue for the community. Hence, nobody’s property is safe from eminent domain. Isn’t it odd that the Court protects privacy within the home, but it has done nothing to secure the property rights of the home.

If this is not bad enough, the Court can take property from people using regulatory measures without just compensation. This was decided in Penn Central v. New York (1978) and Sierra-Tahoe v. Tahoe Reginal Planning Association (2002) line of cases. In Penn Central the Court held that a New York law placing a historic landmark designation on Penn Central was legal. The Court held New York can not only prevent any building modifications to Penn Central but it required no just compensation. In Sierra-Tahoe the Court held regulations which denied building permits for 20 years was legal without just compensation. In other words, temporary takings without just compensation are legal. But it is not just homes and buildings that are at stake when it comes to government takings. The Court also allows the government to confiscate any type property involved in a crime without just compensation such as a car, boat, or plane. This law may be acceptable if the owners of the property perpetrated the crime. For instance, a boat used to transport large amounts of heroin may be impounded without just compensation. But confiscation of property is allowed even if the owner of the property is merely an innocent victim of the crime (Bennis v. Michigan). Tina Bennis lost her car without any compensation because it was used by her husband and a prostitute for illegal sexual activity. We know Tina Bennis was not complicit in allowing her husband to have sex with prostitutes. Yet, these types of civil forfeiture cases are ever-increasing. Civil forfeiture is sometimes referred to as “guilty property” cases.

The most egregious violation of the takings clause is when the government uses taxes to support welfare programs. In Pollack v. Farmers Loan and Trust Company (1895) the Court held that a federal income tax was unconstitutional. However, this decision was overturned by the Sixteenth Amendment. But nothing in the Sixteenth Amendment says that federal tax revenue can be used for anything other than enumerated constitutional powers. This did not stop the Court from upholding the first welfare program (Social Security) in Helvering v. Davis (1937). In this case, the Court held that social security was legal based on the General Welfare Clause. Social Security is a government Ponzi Scheme where money is confiscated from struggling young people and then given to wealthier older persons.

Helvering opened the door for the legality of any welfare program using the General Welfare Clause. But, once again, the General Welfare Clause is not an unlimited grant of power for the federal government. If the government could use the General Welfare Clause to pass anything outside of its Constitutional enumerated powers, then why did the framers bother enumerating any powers in the Constitution? After all, any enumerated power would simply be a truism with no official purpose. So, the question that begs to be answered is: why can the government take money via taxes (property) from person A and give it to person B? In Calder v. Bull (1798) Chief Justice Samuel Chase wrote that any law compelling such a transfer of property would be unconstitutional. Welfare violates the Takings Clause because property cannot be taken for private reasons as outlined by Samuel Chase in Calder v. Bull. Of course, the ratification of the Sixteenth Amendment allows taking tax revenue (property) without just compensation. But the Sixteenth Amendment does not allow takings for private reasons. Sure, the federal government can take property (tax money) for pubic reasons such as building infrastructure, the military, post offices, and other enumerated reasons. But there is no grant of power in the Sixteenth Amendment to take money for private reasons. In other words, there is no Constitutional basis for welfare. If Person A gives money (property) to Person B through government coercion that contract should be void. Under such a scenario neither Person is “pursuing” happiness under such a contract. Person B may be happy, but receiving happiness via coercion is not the same as pursuing happiness. On the other hand, if Person A gives money (property) to Person B through the kindness of their heart (charity), then the contract is legal. Person A is happy for doing the right thing and Person B pursued happiness via a charity or gift without any government interference and coercion.

Besides, welfare has been proven it does not work. Despite over a trillion dollars a year in local, state, and federal taxes into poverty programs the homeless and poverty rates continue to grow or have remained unchanged since they were implemented in the 1960s. This is a sad reality because first, taking money from struggling middle class Americans makes little sense. It pushes middle class families into a lower socio-economic status. Second, taking money from wealthy Americans also makes little sense since the revenue could be used to grow the economy with more jobs and higher wages. Third, welfare taxes mean that folks have less money to contribute to charities which are far more efficient and have less wasteful spending than government programs. Fourth, welfare eliminates many individual’s pursuit of happiness because it instead makes them dependent on government handouts since welfare recipients do not have to do anything to receive their benefits. Benefits that come without any sacrifice from the recipients makes them more susceptible to government dependency and therefore they are not pursuing happiness, but instead receiving happiness. Finally, and most importantly, eliminating federal welfare programs does not mean there would be no welfare. States could implement welfare programs which again, would be more efficient and less wasteful than federal programs. Remember, in the pursuit of happiness, both parties of a contract must benefit. Obviously only one party involved in coercive welfare programs benefit from the legislation or regulation and that is the person receiving the welfare benefits (and of course, the federal government which uses tax revenue to grow in size and stature – increased power).

Restoring the American Dream (Part II)

The 1938 case Carolene Products v. United States was another blow to working rights. In this case, the Court upheld the “Filled Milk Law” which prohibited Carolene Products from shipping its product via interstate commerce. Without any evidence, the Court decided that filled milk was unhealthy for human consumptions and could therefore be restricted. We, of course, understand today that this is not true. In fact, filled milk is better for you than regular milk. The powerful dairy lobby in both Nebbia and Carolene Products was trying to quash their competition and succeeded in doing so with the help of state legislators and the Court. Since filled milk cost 3 cents less per quart than milk, the milk lobby stopped a reputable company from pursing its right to a lawful occupation. Similarly, in Nebbia, the Court was successful in undercutting mom and pop shops trying to compete against big time dairy producers.

Carolene Products is more famous for Justice Stone’s footnote four than its misguided decision. In footnote four Justice Stone listed a few instances where a state law may come under stricter scrutiny in determining its constitutionality. For instance, if any rights in the Bill of Rights are abridged then stricter scrutiny is needed to evaluate the State law. Also, if a minority is disenfranchised then the law would face stricter scrutiny. But, both Nebbia and Carolene Products showed that economic minorities did not matter since the Court held that a mom and pop shop and a single company competing against the national dairy lobby held no minority status. What’s worse, footnote four protects only those rights found in the Bill of Rights, not those rights outlined in Justice McReynolds opinion in Meyer or Society Sisters. For instance, McReynolds says there is a fundamental right to work a lawful occupation but Justice Stone’s opinion holds the right to a lawful occupation can be abridged because it is not in the Bill of Rights. Hence, the right to a lawful occupation can be denied for any rational reason even if is dumb and makes no sense because it fails to promote any government interest such as protecting the general welfare and safety of its citizens. Both Meyer and Carolene Products are good law today, but despite being separated by just 15 years, they conflict. For example, in Williamson v. Lee Optical (1954) the Court upheld an Oklahoma law prohibiting Lee Optical from doing what Lens Crafters does today without any sensible reason. In Anastaplo (1961) the Court held that an Illinois law prohibiting lawyers from joining the bar because they do not recite an oath of office is constitutional. George Anastaplo was denied becoming a lawyer because he would not recite an oath claiming he was not a communist. Anastaplo was not a communist, but he thought a person’s right to conscience had nothing to do with becoming a lawyer or any type of profession for that matter. He was right. The Carolene products precedent clearly diminished the rights outlined in Meyer.

Pursuing happiness would be much easier if the Court would reinstate the validity of Lochner and the freedom of contract. Or the Court could simply use Meyer precedent to protect the right of contract. Freedom of contract would have advantages when deciding cases other than economic freedom such as making decisions simpler and easier to understand. Take, for instance, Loving v. Virginia (1967) and Obergefell v. Hodges (2015) – the interracial and gay marriage cases respectively. In Loving the Court used the Equal Protection Clause of the Fourteenth Amendment to strike down a Virginia law which prohibited the marriage between white and black persons. The defense argued the statute did not violate the Equal Protection Clause because both persons in the marriage (black and white) faced equal punishment. But, since the law did not ban marriages between white persons and other minorities the Court held the law did, in fact, violate the Equal Protection Clause. Thus, this essentially means if Virginia rewrote its statute to ban any type of interracial marriage then the law would be held constitutional. Although this did not happen, this scenario illustrates the Court’s decision was highly flawed. If, instead, the Court used Meyer and the right of marriage or Meyer and Lochner and the right of contract, the dilemma of finding a loophole in the decision could have been avoided. Remember, marriage is a contract between two persons and their church. If the right of contract is law then any marriage regardless of race would be seen as legal.

Obergefell is even more convoluted. All of the plaintiffs in Obergefell had partners that were deceased. Thus, Obergefell became a case about government entitlements tied to marriage. Since the government provides married couples lower tax rates and estate taxes (once a person dies) those seeking gay marriage merely wanted the same financial benefits as married couples. Hence, the Court upheld Obergefell using the Equal Protection Clause because the government discriminates against single persons. This means if the government stops its discriminatory ways by no longer attaching entitlements with marriage, then gay marriage is no longer Constitutionally protected. This is more evidence that the government should not be in the business of establishing entitlements or rights. However, this disaster could have been averted, once again, if the Court used Meyer and or Lochner freedom of contract precedent. Under this situation the Court could protect every person’s right to contract which includes marriage regardless of race or gender.

Essentially, the Court in Loving and Obergefell elevated both marriage and gay-marriage as fundamental rights, but their arguments to do so are highly suspect. The freedom of contract is so strong it can be used to protect many individual rights. If both person A and person B equally benefit in their pursuit of happiness from a contract, then the government has no right to infringe upon the contract and violate individual rights. Similarly, in Griswold and Lawrence, the Court could have upheld these decisions using the freedom of contract. In Griswold, the government should have no business to interfere with the freedom of contract between a married couple’s decision over contraception. Freedom of contract could also be have been used to uphold contracts between consenting individuals who are not married such as in Lawrence. Remember, individuals enter into hundreds of contracts each day: every time we purchase or sell goods and services (property) as well as relationships (friends, spouse, companies, bosses, and children) in our pursuit of happiness. Roe, on the other hand, unconscionably breaks or voids the contract between a mother and child. There is no question that neither Party A or Party B obtains any benefit in an abortion. Party A may be relieved to get rid of an “unwanted” baby, but that situation is hardly a happy or beneficial moment if it haunts Party A for the rest of her life. Party B is exterminated so there is no benefit for them in the contract!

Restoring the American Dream (Part I)

What is the American dream? It is precisely defined in the Declaration of Independence as “the pursuit of happiness”. No one is guaranteed happiness, but we should have a right to pursue it. What are some things people may lawfully pursue to be happy? They include the right to own and sell property as well as those rights brilliantly outlined in Meyer v. Nebraska (1923) by Justice McReynolds: “Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Moreover, Reynolds opined “The established doctrine is that this liberty may not be interfered with, under the guise of protecting public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.” Two years later McReynolds also delivered the majority opinion in a similar case: Society Sisters v. Pierce. Both Meyer and Society Sisters are considered good law today, but unfortunately government laws and the Court only use this precedent when protecting privacy rights. McReynolds understood the American dream, which modern progressive and conservative courts have failed to recognize. Meyer and Society Sisters are often cited in cases together. This precedent was used to find a right of privacy in Griswold v. Connecticut (1965), the right to choose abortion in Roe v. Wade (1973), and the right to consenting sex in Lawrence v. Texas (2003). For this reason, Meyer is sometimes called the first privacy case. But, this is not true. Meyer and Society Sisters were not privacy cases. Both Meyer and Society Sisters addressed the right to acquire useful knowledge. In Meyer the Court struck down a Nebraska law forbidding a child under 10 years of age from learning a foreign language. In Society Sisters the Court struck down a law prohibiting students from attending private school. Education is not a privacy issue. While Griswold (Contraception) and Lawrence (Sex) are privacy issues, Roe (abortion) is not necessarily a private matter since clinics, nurses, hospitals, doctors, and others may be privy of an abortion. Also, in abortion cases, medical records are kept. Yes, just as in the case of a student in education, these types of records are private but certain people will always have access to them.

No one will argue or dispute the fact that a person’s happiness is directly proportional to one’s education, work, family, church, and home as outlined in Meyer. While privacy within the home has gotten some protection from the Court, the same cannot be said of a person’s right to education, property, and work. In fact, those fundamental rights are continually being diminished by government laws which are upheld by the Court. If privacy is protected within the home, but if a person’s right to education, property, and work are not protected then the American Dream and the pursuit of happiness is essentially gone. Also, it is important to remember that even privacy rights are not absolute as lawful citizens can be monitored by the National Security Agency (NSA) without warrants. What’s worse, police can even monitor our phone GPS data to obtain information without warrants (Carpenter v. United States, 2018). Big Brother is watching us, with or without privacy rights. Carpenter is an interesting case. Although it appears that the Court is going to limit authorities from accessing GPS data from phones without a warrant, their rationale is going to be flawed. Carpenter illustrates the Court’s historically misguided view to protect privacy rights and neglect property rights. Carpenter should be a property case because authorities are trespassing on personal property (phones) without a warrant. However, it looks as though Carpenter will be decided using privacy concerns. Carpenter shows the willingness of the Court to protect privacy rights (an elevated right) but neglect property rights (enumerated right) which is important as we look at why the American dream is dying.

The 1905 case Lochner v. New York was a decision that has lived in infamy. In this case, the Court struck down a New York law regulating how many hours bakers can work in a week. However, the Court upheld all of the other provisions of the New York law to promote public health and safety. Lochner upheld the same freedom of contract alluded to in Meyer 18 years later. The Court held that the freedom of contract between an employer and employee was paramount and legislatures cannot deny that right or freedom under the guise of public health and safety. Lochner was a huge win for working rights, but those rights would be short lived. Lochner was officially overruled in West Coast Hotel v. Parrish in 1937. But government economic regulation started in Nebbia v. New York (1934). The Court held that a New York law prohibiting selling a quart of milk under 9 cents was lawful. Hence, the conviction of a grocer who sold two quarts of milk and a loaf of bread for 18 cents was upheld. Why can’t a businessman set a price that is satisfactory to him and his customers? The whole purpose of a contract is for both Party A and Party B to be happy with the result. In Nebbia, both A and B were happy so why is it necessary to regulate this contract? How can people pursue a lawful occupation without government interference if the government regulates their work hours, overtime, wages, child labor laws, and the prices at which they can sell products? The government’s purpose is to protect rights and not to regulate, prohibit, deny, manage, or disparage rights without any compelling government reason.