Tuesday, September 3, 2019
How dangerous is public opinion and majority rule in American history. Consider this scary example: Nazi Germany modeled America in many ways as follows: • Germany justified World War II as an expansion of territory similar to how America moved West and conquered Native-Americans. • The Nazi’s modeled American anti-miscegenation laws. While American laws generally targeted African-Americans most Nazi laws targeted Jews. • The Germans modeled American laws to treat minorities as second-class citizens. For example, segregation laws against African-Americans made it more difficult for them to travel, vote, or partake in the political process. The Insular Cases decided by the Court in 1901 basically provided that persons living in recently acquired territories from the Spanish American War did not possess full citizenship privileges. People living in Guam, Puerto Rico, and the Philippines took a backseat to naturalized citizens. While some justices correctly felt citizenship followed the American Flag, others felt it was okay to deny territory inhabitants certain rights. Similarly, German naturalization laws provided that only pure-blooded Germans can be citizens similar to how the United States dealt with territories. • American laws regarding eugenics where followed very closely by Nazi’s to maintain a pure race free from “foreign pollution”. • Both Americans and Nazi’s used abortion as a key element to eliminate racial impurities. • Germans closely followed American laws regarding immigration. The Exclusion Act of 1882 denied Chinese immigrants entrance into the United States. The Emergency Quota Act of 1921, Asiatic Barred Zone Act of 1917, and the Immigration Act of 1924 denied certain persons from immigrating into the United States. In particular, persons from Asia, Southern Europe, and Eastern Europe were denied access to the United States. Germany followed the same types of laws to deny or discourage Jews from entering their country. For instance, the Cable Act of 1922 stripped German women of citizen rights when they married non-citizens Asians. It was not just how Americans treated African-Americans and Asians that caught the attention of Nazis. They also admired American policy toward Native-Americans by placing them on reservations isolated from the main population. American hate organizations such as the Ku Klux Klan (KKK) where equivalent to Nazi fascists. But it was not just the American South that discriminated, all of America was guilty of some sort of discrimination towards minorities and certain immigrants in the name of public opinion.
Sunday, August 11, 2019
If the government could not force affirmative action on otherwise innocent companies, it used coercive measures to make companies comply. One method was to force any government contractor to meet affirmative action policies. Another method allowed the government to set-aside funding (up to 10%) that was used to contract with minority dominated companies. SCOTUS found the latter method constitutional in Fullilove v. Klutznick. Of course, nothing in the Fullilove decision worried about how the program would affect the cost and quality of the work since there was less competition and the fact these types of government programs were generally open to more lobbying, corruption, waste, and fraud to win contracts. To complicate matters, SCOTUS held in Johnson v. Santa Clara County, that reverse-discrimination affirmative action policies were acceptable to make up for past injustices. Santa Clara County was guilty of discrimination and therefore were allowed to promote less qualified females over more qualified males to make up for past indiscretions. The bottom line is that individuals, companies, organization, and federal agencies should be able to contract with anyone they feel will help them best achieve their goals so long as they do violate the contract and work rights of more qualified persons. Discrimination laws have extended beyond Title VII. For instance, Congress passed the Age Discrimination Employment Act (ADEA) which protects workers between the ages of 40 to 70. But doesn’t ADEA discriminate against younger persons who may be more qualified to do the job? This may explain why the unemployment rate among younger persons is almost always higher than older persons. Age discrimination is treated by the courts and the government very similarly as race and gender discrimination. For instance, ADEA has a BFOQ exception which generally deals with safety concerns. For example, in many airline cases the Court has upheld a mandatory retirement age of 60 years old for pilots due to safety concerns. To be sure, many people may rather put their lives in the hand of an experienced 62-year-old pilot than one making their maiden voyage. But age discrimination is also very different from race and gender discrimination. No white person can become a black person and generally speaking very few males become females and vice versa. But every young person becomes an older person. Hence corporate age laws are developed by people that all face the same consequences. For this reason, age discrimination makes little sense. The bottom line, debating work contracts which consider color-blindness, gender-blindness, and age-blindness makes more sense than debating controversial and inflammatory age, race, and gender discrimination cases.
Tuesday, August 6, 2019
The Supreme Court interpretation of the Title VII of the 1964 Civil Rights Act progressively moved from preventing discrimination to guaranteeing racial outcomes. In fact, the SCOTUS interpretation of Title VII was vastly different than what Senator Hubert Humphrey notes suggest was the true meaning behind the legislation. Title VII was necessary to end state government regulation used to enforce separate but equal policies on companies and minorities. Title VII was initially successful at reducing government regulations which, in turn, helped increase minority wages and participation in the work force. The gains from Title VII were short lived once SCOTUS and Congress began growing the federal government to guarantee racial outcomes by the early 1970s. The progression of SCOTUS interference is illustrated in the line of cases from Griggs v. Duke Power to Guardians Association v. New York City to Connecticut v. Teal to Watson v. Fort Worth Bank to Wards Cove v. Antonio to name a few of the key cases. To keep up with SCOTUS, Congress passed the Equal Opportunity Employment Act (EOEA) which made hiring and promotion guidelines even more stringent than Title VII. Congress and SCOTUS had one goal and that was to make sure no company practiced discrimination. This is a noble goal, but by placing the burden of proof on defendants to prove they were not discriminating and creating outrageous guidelines for hiring tests and interviewing practices a few things were bound happen. First, many companies not practicing discrimination were incorrectly found guilty of the practice. Second, not only would qualified whites be passed over for jobs and promotions, so too would qualified minorities. Third, even though the government and the Court did not specifically sanction quotas, companies were forced to implement them or face discrimination charges based on precedent and legislative rules. Fourth, the same rules for companies did not apply to government agencies and their hiring practices. Fifth, it increased hiring costs and made companies less efficient. Finally, these regulations stagnated not only minority wages and work force participation but it did the same to poor whites. Yes, Title VII racial discrimination laws and SCOTUS enforcement worked to widen the socioeconomic gap between the rich and poor. Similarly, Title VII and the EOEA influenced SCOTUS to push for outcomes in gender equality. It was not enough to insure women and men were not discriminated against for jobs they were qualified to work. Instead, SCOTUS pushed for results in cases. For instance, in Diaz v. Pan American Airways, SCOTUS correctly held that Pan Am could not discriminate against men for airline attendant jobs. However, the decision was about balancing gender participation in the airline attendant profession. But why should Pan Am feel compelled to hire non-qualified males to guarantee balanced outcomes in the flight attendant profession? Pan Am should only hire those male candidates that meet their customer service guidelines that women are generally better at meeting. This same standard should apply to women wanting to be a building contractor or deep-sea fisher, they should not be discriminated against if they meet the job qualifications. The bottom line, companies should not be compelled to lower their hiring standards to guarantee balanced racial or gender outcomes. Title VII does not treat gender the same as race because the law contains the “Bona Fide Occupational Qualification” (BFOQ) exception. Of course, there are many exceptions that may apply to gender and not race such as being a professional football player. In International Union v. Johnson’s Control Inc., SCOTUS held that denying pregnant women the right to work in an area with dangerous levels of lead was unconstitutional. Johnson’s Control merely wanted to protect a fetus from dangerous levels of lead exposure. However, SCOTUS viewed this as Johnson’s Control trying discriminate against pregnant women and held, they should be allowed to work in the dangerous area if they wish to do so. Would SCOTUS hold Johnson’s Control free from liability if babies were being born with deformities? SCOTUS could have easily seen Johnson’s Control as a BFOQ exception to protect both the health and wellbeing of the mother and baby. The bottom line, Johnson’s Control was found guilty for doing what was right. Similarly, in Los Angeles Department of Water and Power v. Manhart, SCOTUS held annuity pension plans could not be calculated based on the life expectancy for women and men separately. These annuity pension plans had to be calculated together using a unisex formula. Since women’s life expectancy is longer than men, the average annual annuity payouts would be slighter lower for women. Manhart would insure the annual payout for women would be higher. Instead of finding a BFOQ exception, SCOTUS held annuity pensions had to be calculated based on unisex formulas. This holding would be cause for companies to stop annuity pensions (which is what happened) or to stop hiring women because it cost them more for benefits while at the same time it decreased the cost for benefits for men. Manhart is a welfare case because it transfers wealth from one person (men) to another person (women) and there is nothing in Title VII to justify any welfare program. In Gedulig v. Aiello, SCOTUS held that pregnancy did count towards unemployment disability compensation. Since disability compensation was already costing companies twice as much for females than males, SCOTUS found it made no sense to add to that unbalanced cost ratio. Should women be denied more disability compensation and should men dispute the already unbalanced cost ratio favoring women? These are dilemmas raised by attempting to guarantee equality: it is impossible to rationally satisfy everyone SCOTUS found “voluntary” affirmative action in Title VII where none existed in Steelworkers v. Weber. However, Title VII does allow for affirmative action but only in cases where companies or unions were found to have discriminated against minorities and or women. But there is nothing that permits wholesale affirmative action policy in Title VII. In fact, Title VII was designed to be a “color-blind and gender-blind” statute. What this means is that company decisions to hire and promote were to be made without considering race and gender. Senators Joseph Clark and Clifford Case, who were instrumental in the passage of Title VII, wrote: There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race.
Tuesday, July 16, 2019
People may find the Press Release to my new book at the following location: https://www.prdistribution.com/news/defending-freedom-of-contract-constitutional-solutions-to-resolve-our-growing-political-divide/4605657 This site contains more information than what has been previously published. The book website is located at: https://www.defendingfreedomofcontract.com/
Friday, June 28, 2019
The synopsis of my latest book which is out and will be available in most major outlets within 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.
Sunday, June 23, 2019
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.
Sunday, June 16, 2019
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.