Defending Freedom of Contract: Constitutional Solutions to Resolve our Political Divide

The synopsis of my latest book which is out and will be available in most major outlets over the next month:

Over the course of United States history there has been a coup d’état changing the meaning of the Constitution from a republic to a democracy. The latest trend is to change the United States from a democracy to a socialist nation. During the democracy revolution the mantra of conservatives and liberals was to divide and conquer different demographics of the populace by pitting citizens against each other. What would happen if Americans discovered the Founders true meaning behind important historical documents including the Constitution, the Northwest Ordinance, the Bill of Rights, and the Declaration of Independence as well as important Supreme Court cases including Calder v. Bull, Corfield v. Coryell, Lochner v. New York, and Meyer v. Nebraska? Instead of pitting Americans against each other we would instead be discussing equal rights for everyone. Instead of majority groups with the most power instilling their will on minorities or the weak we can protect the rights of each American citizen equally. Unfortunately, there have been dozens of horrid Supreme Court decisions, over the course of United States history, protecting some class of citizens at the expense of another class of citizens: Dred Scott v. Sanford, the Slaughter-House Cases, United States v. Cruikshank, Bradwell v. Illinois, Plessy v. Ferguson, the Insular Cases, Muller v. Oregon, Schenck v. United States, Nebbia v. New York, Buck v. Bell, West Coast Hotel v. Parrish, Wickard v. Filburn, United States v. Darby Lumber, Korematsu v. United States, Williamson v. Lee Optical and Grutter v. Bollinger to name a few. Many times, the Supreme Court would decide cases correctly, but would do harm to people’s rights by deciding the cases using the wrong rationale. Cases such as Brown v. Board of Education, Obergefell v. Hodges, and Lawrence v. Texas are a few landmark cases that used social justice instead of deciding the cases based on Constitutional law. While liberals like to violate the rights of some using social justice, political correctness, and discrimination claims, conservatives like to use moral justice to control individual private behavior that does not violate the rights of anyone.

Many may not believe in natural law fundamental rights because they do not believe in God. That said, very few would dispute the following natural law fundamental rights: Life, Obtaining Knowledge, Speech, to Vote, Religious Freedom, to Play, to Travel, Freedom of Contract, to Work, Freedom to own and sell Property, to Marry, to raise a Family, to pursue Health, Enjoy Nature, pursue Friendships (associations), to Obtain Justice, Safety, Self-Defense, and Equality for All. These are the rights that every person is born with and they may not be taken away without some compelling reason to protect the welfare and safety of other citizens. Many of these rights are enumerated in the Constitution and Bill of Rights, but even more are unenumerated. However, there is an originalist meaning in the Constitutional to elevate unenumerated rights to Constitutional status using the Ninth Amendment or the Fourteenth Amendment privileges and immunities and due process clauses. It is not the job of governments to create, prohibit, regulate, or legislate our fundamental rights, but to protect them. Talking in terms of natural law fundamental rights instead of women’s rights, gay rights, or diversity makes more sense since natural law fundamental rights are generic, they are not controversial, and are agreed to by a vast number of citizens. Even if there are no gay rights, that does not mean gay marriage or gay sex would not be Constitutionally protected using the many natural law fundamental rights listed above. For instance, everyone has a right to marry and everyone has a right to contract with whomever they want for marriage or friendships. Encompassing the rights listed above, the book explains why gun rights would be a right, healthcare would not be a right, education would be a right, and abortion would not be a right. However, when we talk about these divisive issues in terms of rights instead of in terms of gender, ethnicity, sexual preference, social economic status and so forth, it is not as polarizing. Notice how the Constitutionality of issues does not depend on political ideology. The Constitution and henceforth, the law is generic: there is no place in the law for discrimination, bias, opinions, and balancing tests.

Where to Order:

http://www.lulu.com/spotlight/Patrick_Bohan

It is available in eBook, hardcover, and paperback. It will be available at Amazon, Barnes and Noble, and other sites in the next few weeks.

States Rights, Slavery, Segregation, Nullification, and Racism

One misconception about federalism and State rights that needs to be addressed is racism. Most liberals are of the belief anyone who defends federalism or State rights must be a racist. State rights got a bad name during the slavery and segregation eras. Southerners tried to defend slavery and segregation by claiming they were State rights issues and the federal government should not interfere. This is wrong for the reasons that follow: • The text of the Constitution bars segregation as this book explains later on. Hence, the federal government rightly interfered over the issue of segregation because it was not a State rights issue. • Almost all of the Southerners supporting segregation were Democrats or liberals, not the Republicans they accuse of being racists. • As pointed out earlier, Democrats and liberals pursue States rights when it suits them. For example, many social issues such as marijuana and sanctuary cities (illegal immigration) are supported by liberals. In fact, liberals are okay having State laws supersede federal criminal laws over marijuana and sanctuary cities. Liberal States have vowed not to implement the Bush REAL ID. This defiant State act is called nullification. • The issue of nullification is also incorrectly seen as a Southern States’ rights issue. Nullification is a doctrine which would allow States the right to nullify federal laws they may find unconstitutional. Nullification is not the law, but States have threatened to use it throughout United States history. Nullification was a common threat used by Southerners in the face of federal desegregation or anti-slavery laws. However, nullification had its roots at the Constitutional Convention. It came up again in the Kentucky and Virginia Resolutions (1798) in response to John Adam’s Alien and Seditions Act. Originally, nullification was a Northern principle threatened by New England States in response to trade embargos and the War of 1812 during the Jefferson and Madison administrations. In 1832, South Carolina would use the nullification threat in response to a protective federal tariff that forced Southern States to buy agriculture farming products at a much higher prices. South Carolina Senator John Calhoun’s argument for nullification was at least compelling. Calhoun in his publication, “Exposition and Protest”, suggests the Constitution is a contract between States and the federal government. In the compact agreement, States yield some sovereignty but when the federal government goes beyond its enumerated powers to encroach on State sovereignty, States should be able to nullify unconstitutional laws. While some will dispute that the supremacy clause prevents States from using nullification, but the supremacy clause should only apply to Constitutional laws. In other words, the supremacy clause is not an open invitation to violate the rights of States and citizens without some compelling reason. Nullification has deep-roots in American history, not just Southern history. And nullification has deep-roots supporting many issues, not just slavery and segregation. As just mentioned, modern liberals are threatening Nullification over the Real ID law. • Most liberals incorrectly claim States rights protected slavery the first 70 years of United States history. It is a sensible argument since history books and the Smithsonian support these misguided theories. But it is wrong. On the contrary, abolitionists were supported by State rights and slavery was protected by the federal government. The Fugitive Slave Acts of 1793 and 1850 prove the federal government was pro-slavery, whereas free-States used State rights to protect runaway slaves. The Supreme Court was sympathetic to slave owners in Prigg v. Pennsylvania, Strader v. Kentucky, and Dred Scott v. Sanford. The Court rubber stamped the Fugitive Slave Acts and, of course, voided the Missouri Compromise which prohibited slavery above the 36’ 30” parallel. It was originally the North that wanted to secede from the Union over slavery. The only reason the South seceded was not because the government trampled on their States rights. It was because with Lincoln elected to the Presidency and more Republicans winning seats in Congress, the writing was on the wall that the South would no longer receive preferential treatment from the federal government over slavery. • Using racism to argue against State rights is a “strawman” or ad hominem fallacy argument. This is where people attack the character of those they are debating to avoid addressing the issue at hand. Whenever someone uses the race card, rest assured that that argument is more than likely a strawman or an ad hominem fallacy. Being called a racist is so common now, it is not just used against State rights arguments, but against anyone who votes for a Republican candidate.

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.

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).

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”