Thursday, November 30, 2017
James Madison saw government created monopolies as wicked because they limited the economic freedom for individuals to pursue a profession protected by the government. Madison views of monopoly were adamant during his protest against the creation of a national bank. Madison’s view grew from English Law and the views of Scottish philosopher, Adam Smith. Smith viewed economic freedom “the most sacred and invoidable” rights and monopolies were a “manifest encroachment upon the just rights of both the workman, and those who might be disposed to employ him.” In 1602, the famous English lawyer, Sir Edward Coke, fought a card making monopoly created by King James I in Darcy v. Allen. This court held that a government created monopoly was illegal. Coke would win the rift between King James I when other courts would make similar rulings against government monopolies in Weaver of Newbury’s Case, the Case of the Bricklayers, and Colgate v. Bacheler. It is important to note that the meaning of the word monopoly and corporation was similar in these early English decisions. This early definition of corporation has caused a great deal of the modern animosity that is held toward law abiding companies. For example, a great number of persons still do not agree that Corporations are people and are protected under the Constitution as such. This concept was first introduced by the Court in Santa Clara County v. Southern Pacific Railroad (1886). Corporation own property, can sue and be sued in court, and pay taxes like citizens. Besides, there is no way to protect the rights of investors without treating a corporation as a person. The Supreme Court was challenged with some monopoly cases under the “Contracts Clause” of the Constitution early in our history. In Dartmouth College v. Woodward (1819) Chief Justice Marshall held that the state could not change a contract charter that would make Dartmouth College a public institution instead of a private one. In Charles River Bridge Company v. Warren Bridge Company (1837), the case involved a contract dispute between those who built the toll road over the Charles River and the State of Massachusetts. Forty years after the Charles River bridge was built the State of Massachusetts made a similar contract with the Warren Bridge company: to build a free bridge parallel to the Charles River Bridge. Charles River Bridge Company felt the Warren Bridge contract violated their monopoly contract with the State citing Dartmouth College v. Woodward (States cannot change a contract or charter). However, Chief Justice Taney said the State of Massachusetts can create new contracts with whomever they want so long as the original contract did not specifically state it was contracting a monopoly to one company. In other words, Charles River Bridge set “precedent that corporate charters would not be read as including a prohibition on competition unless the charter explicitly said so.” In fact, the Taney precedent in Charles River Bridge was used to allow states to revoke monopoly contracts in Butcher’s Union Slaughter House and Live-Stock Landing Company v. Crescent City Live-Stock Landing and Slaughter House Company (1884) and Stone v. Mississippi. The Slaughter House Cases of 1873 was probably the most important but disastrous monopoly case. In this case, the Court held a Louisiana law to monopolize New Orleans slaughter houses Constitutional even if it denied workers the right to pursue a lawful profession. This case was very damaging because it basically wrote the newly enacted “Privileges and Immunities” clause out of the Fourteenth Amendment. The “Privileges and Immunities” clause was passed to protect the rights outlined in the 1866 Civil Rights Act which echoed those protected rights outlined by Justice Washington in Corfield v. Coryell a few decades earlier. Among those rights was the right to pursue a lawful profession without government interference. However, the Slaughter House decision regressed American law back to pre-Civil War interpretations over economic rights and citizenship disputes. The Sherman Anti-Trust Act (1890) was originally designed to stop all government monopolies and any public monopolies that used unlawful methods to keep competition out of its economic market. The law was not designed to eliminate or dissolve merely powerful big corporations who were acting legally. But that was exactly what happened. Consider the 1945 anti-trust case against ALCOA (aluminum manufacturer). In this case, Justice Learned Hand said that the Anti-Trust Act was not enacted to control only dishonest behavior, but honest legal behavior as well. Alan Greenspan would call the ALCOA decision as “codemn(ing) [ALCOA] for being too successful, too efficient, and too good a competitor.” After all, ALCOA was not price gouging, in fact, they were providing customers everyday low prices for their products. Since ALCOA was making a profit no one could even accuse them of predatory pricing (to lower prices below profitability margins to push out competitors). The Supreme Court has decided a few predatory pricing cases correctly: Matsushita Electric v. Zenith Radio and Brooke Group v. Brown and Williamson Tobacco. In these cases, the Court held without a viable threat of a monopoly, predatory pricing is legal. Besides, no company could continue predatory pricing for very long without hurting their bottom line. One can ask, is any price cut on a product or service illegal because it causes a customer harm? Of course not, sales are available on a daily basis between competitors. Government regulation of lawful companies simply because they are big is wrong: it stifles innovation, raises prices, and decays job growth for absolutely no reason. ALCOA is a perfect example showing the difference between a lawful public monopoly and unlawful predatory government monopolies. Even when companies were not monopolies, the government found ways to classify them as monopolies to break them up. In 2003, Nestle tried to purchase Dryer’s Ice Cream. Although this would not create a monopoly for ice cream by any stretch of the imagination, the government classified the merger as a monopoly on “super-premium” ice cream to nix the merger. The government did the same to nix the Whole Foods and Wild Oates Supermarket merger by classifying it as a monopoly on “premium natural and organic supermarkets”.
Saturday, November 25, 2017
“The pursuit of happiness” in the Declaration of Independence has many meanings including the right for every person to pursue a lawful profession (this is part of economic freedom). I do not think that anyone would argue that our happiness is heavily dependent on how happy we are with our profession. That is why people will change jobs routinely: they are in pursuit of happiness. The United States has been at “At Will Employment” nation since its inception. This means employers and employees are allowed to terminate their work contracts without any reason (except for reasons of discrimination). This concept was outlined in the important Supreme Court decision in Adair v. United States (1908). All this being said, the United States has been moving towards a “job security” nation similar to Canada, Sweden and Norway. Some examples of this can be seen through unionized professions which protect incompetent employees from any type of lawful termination including being lazy and disruptive. It is a huge misconception that job security and the ever-increasing termination laws protecting employees are actually good for employees. Simply put, workers do not benefit from laws and regulation that in the long run make it harder and more expensive for employers to hire. And what’s worse, the inefficiencies and waste from job security programs are passed on to the consumer in the way of higher prices, less innovation, and lower quality products. The rise in the “temp” workforce is a direct response to tougher termination laws and government regulation. Temporary workers provide cheaper options for employers and come with less regulatory employment rules and therefore can be terminated easily without facing lawsuits. Temporary workers do not receive any corporate benefits, but the California Supreme Court changed that in Vizcino v. Microsoft. Hence, courts are onto the corporate “temporary worker” concept and ready to shut down these “at will employment” opportunities. Tort cases seeking punitive damages from companies costs them about 1 trillion dollars annually or about 5% of the economy. For example, “public nuisances” laws have been used to target tobacco, gun, car makers, drug manufactures, and paint manufacturers. In fact, many of the plaintiffs in these cases have faced no harm or damages from any of these companies. Hence, to many, suing corporations is for a personal benefit, not for the benefit of the public. Frivolous lawsuits are common and most companies would rather settle than face enormous fees by going to trial. California’s Unfair Competition Law has triggered thousands of frivolous lawsuits such as planes not having enough leg room or disputing the service fee for hotel room service. Although many lawsuits are dismissed and Supreme Court cases such as BMW v. Gore limit damages to realistic sums of money, the cost on companies is extreme and most of that cost is going directly to the customers in the form of higher prices and less services. The American Disabilities Act (ADA) is part of the Civil Rights Act. It costs business millions each year to upgrade its buildings to meet this law. I do not have anything against making buildings wheel chair accessible but the government should subsidize what it mandates instead of forcing costs onto businesses and consumers. The ADA has made it impossible to fire anyone because things like laziness, lack of concentration, alcohol and drug addiction, and disruptive behavior are all now considered to be disabilities for which the company must seek treatment options to help employees afflicted with such disorders. But these laws go one-way. For instance, an employee who fails to be responsible by taking his medications or has alcohol or drug relapses still cannot be fired. Discrimination lawsuits are up over 5000% over the last 50 years. Person’s in wheelchairs have filed suit against movie theatres because their seating locations are not favorable. And then there are the discrimination lawsuits against bars that offer benefits for women such as ladies night. Every employee has a disability excuse (there is now a medical term for any type of behavior) and therefore employees resort to discrimination lawsuits against their employer when they are let go. While employers are held to incredibly difficult standards, workers are free to be irresponsible and unaccountable for their behavior in the workforce. When one in twenty dollars of economic activity is due to lawsuits, then we have really entered the age of needing tort reform. We need to reestablish equal employer / employee rights and not one-sided laws protecting unproductive employees at the expense of businesses and consumers. People probably enter into a hundred contracts every day: anything we purchase, work, our home, our utilities, cable, phones, marriage, schools, parking, and so forth and so on. There are three reasons a court may void a contract: Public policy reasons, unconscionability, and bargaining power inequity. But the courts have used these reasons to void perfectly good contracts where there has been no coercion or exploitation of any of the parties partaking in the contract. Take, for example, bargaining power inequity: Parties in exact equality have no reason to enter into a contract. Hence, there must be some inequity for party A to enter into a contract to obtain more of what party B has. For this reason, many bargaining power inequity rulings are bogus. Public policy reasons lead judges to input personal bias and opinions into decisions. For example, in a Massachusetts surrogacy case (R.R. v. M.H) the Court sided with the surrogate mother who breached her contract and kept the baby. The judge ruled it is not normal public policy to sell babies. I find that odd since it is now normal public policy to abort a baby. This is a judge’s opinion, he is not following any law. 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. In other words, the furniture store was out the remaining amount due in the contract. In this decision, the court had empathy toward the plaintiff because she was poor. But the court’s decision would affect hundreds of poor people living in the same neighborhood negatively. In response to the decision, the furniture store reduced credit levels and raised prices to cover lawsuits where they could not repossess items for breach of contract. California courts have barred companies like Circuit City from using arbitration as a means to solve employee disputes. Instead, courts want companies to face lengthy and more expensive class action suits instead of settling disputes in arbitration. Once again, these actions force companies to cut employment, reduce wages, or pass any increased legal costs onto the consumer.
Tuesday, November 21, 2017
With all the sexual harassment incidents coming to the forefront in the news, I have been telling people for my entire life that the predator has always existed and will continue to exist. Americans have just looked the other way even when they know it is happening. How do I know this? Because I lived with a predator (stepfather) and even took excessive verbal and physical abuse from my own mother. I will not go into my story to deeply because I have done this before. But I will estimate that there is an abuse of power in one out of every 6 to 8 homes. I see so many women and children that are living in fear. They will not admit it, but it is easy to spot especially if you have experienced the same horrors. Abuse of power is not a political issue because predators do not discriminate against political ideology. It is not a racial issue because predators will abuse anyone who they perceive is weaker regardless of race or gender. After all, most cases of abuse and neglect happen within the family circle where people are the same color and have the same ideals. Predators are both on the Right, Left, and Center. They are black and white and can even be women. But you would not know this anytime you watch the news about these animals. The media always seems to think it is a Right or Left thing. The same goes for violent criminals and mass shooters. In the eyes of the media they are either conservative or liberal. This is why nothing will ever get done about this dire situation. Both sides are hypocrites and will defend their animal at all cost. I am glad to see that maybe Republicans are starting to get it and may push Roy Moore out. But until both sides get on board, people will continue to abuse their position of power to take advantage of women and children and “weaker” persons. I also consider people who abuse their power for corrupt reasons such as embezzlement or racketeering as predators. After all, they take advantage of taxpayers and employers to steal from their pockets. It is all an abuse of power. I do not have any particular advice for victims. I can only talk from my experience. Most people do not believe me, but I would not change a thing that has happened to me. That is saying a lot since many of my physical injuries are becoming more problematic as I get older. What’s worse, it is highly likely that the neurological disorder I have was caused through years of abuse. These injuries and the disorder are hard things to live with because they are not only a constant reminder of the past, but they keep in me constant pain. But, I got through it and learned a lot, especially how to survive and deal with adversity. And this is why I push myself so hard to succeed at life, because if I do not, the predator wins. I would have wished for a better life for my mother and my younger brother since they were much more deeply affected by the events during this reign of abuse. This is not to say that I have not been angry or bitter at times in my life, but for the most part I feel no animosity towards anyone anymore. I have forgiven and moved on. If you let it get to you, then the predator wins. If you do not move on and succeed at life, then the predator wins. Predators are no different than terrorists. A terrorist knows they cannot kill every American, but they want you to be nervous and to change the way you live. They want you to live in fear. A predator also wants you to live in fear. They want to scar you to the point you remember them long after they are out of your life. I truly live with the scars from a predator. One orthopedic surgeon told me that I was either hit by a Mack truck or was abused. He came to that conclusion because he noticed I had fractures in unusual places throughout my body. He then said he was absolutely sure I was abused and felt confident in that conclusion because ALL of the fractures where never treated. I walked (limped) around my high school years with broken bones and bruises and nobody, not even a friend ever said anything. I never had food or money for lunch and nobody ever offered me anything. If this is not suspicious, I do not know what is, but teachers, administrators, coaches, friends, and students chose to look the other way. Nobody believes abuse happens, but it not only happens, it is much more prevalent than anyone could ever imagine. We chose to look the other way and then when it comes to the forefront we chose to say that only happened because that guy is a Republican or he is a Democrat. It happened because people can be sick. This problem is much more prevalent than racism. My stepfather was not a racist, he was angry and would hurt anyone (white or black) especially anyone who was smaller than he was. Until both the Right and Left forget about their political differences and force these animals to suffer severe consequences for their actions, then nothing will be done and it will be status quo as usual. We can continue to live and chose to believe that these types of things do not happen. But they do, and we need to stop protecting them (those that protect them do not realize how they are enabling the predator). If the Left now realizes that Bill Clinton was a predator then they knew decades ago. Nothing has changed. What makes this even more troublesome is that they continued to defend him and Hillary’s defense of him throughout her campaign. This means politics is above violent predatory behavior, and that is sad. Anyone defending a predator should also be held accountable for any crimes committed by the predator since they are complicit in the crime. And anyone who makes false accusations should also be treated as a predator since their behavior is no different. These are a few changes I would like to see in the law.
Saturday, November 18, 2017
Consider how the government has taken control of radio and television broadcast frequencies. The Federal Communication Commission (FCC) controls communication outlets that could have been controlled by the private sector similar to how we deal with private property. FCC regulations are one-way rights and compel owners of communication stations as to what and how to transport information over their airways. There are generally two sides to any communication of information but when the government becomes involved it becomes one way. Just as the FCC has stymied free speech over our airwaves, bullying will further diminish our free speech rights. In another example consider how governments attempts to coerce property owners. Two important cases illustrate this point: Nolan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994). In Nolan, the Coastal Commission expected the Nolan family to provide an easement of property in return for a building permit. The high court saw this as mere extortion since the Coastal Commission offered absolutely no reason for the easement. In Dolan the city of Tigard wanted an easement to stop any water runoff created by a new parking lot before issuing a building permit for Dolan’s plumbing business. In addition, the city of Tigard expected a piece of land to build a bike path because of more complicated traffic patterns before issuing a building permit. Once again, the Court conservative sect laughed at these Tigard city requests because they made no sense. For instance, if Dolan could construct the parking lot to capture water run off then why did the city need an easement? Government intervention over property rights and the use of permits are only a way for cities to recoup more revenues and public lands. What do property owners receive in return from government intervention: lost property and more fees that provide absolutely no reciprocal service to property owners. Liberals would do anything to limit any building on private property at the expense of the environment. Thus, the relationship between government and private property owners is grotesquely skewed towards the government. This is further evident is other cases such as in United States v. Chandler-Dunbar Water Power Company (1913) and United States v. Willow River Power Company (1945). In these cases, the Court denied just compensation to power companies for building dams that shifted water levels and put the power companies out of business. Federal control over waterways is absolute (Phillips Petrol v. Mississippi, 1988), but public interest is far from absolute over waterways. The federal government can reroute waterways (South Carolina v. Georgia, 1876) and can even block a navigable waterway (United States v. Commodore Park, 1945) and somehow violate the takings clause of the Fifth Amendment by taking private property without just compensation. The Court did hold in Kaiser Aetna v. United States (1979) that taking a private pond after the owner created a passage to navigable waters could not be justified without just compensation. However, this is a rare case, in most cases over navigable waters the government can take without compensation. Anyone can understand the implications if the Court did not allow any just compensation to businesses if the government blocked access to businesses on our roadways? The primary purpose of government is to protect rights, not to prohibit or exclude rights. In the course of United States history: United States citizens have to take a back seat to non-citizens. The unborn take a back seat to pregnant women. Military servicemen have less rights than military combatants. Criminals have more rights than law abiding citizens (especially victims of crimes). The only place where potential victims have more rights is for sexual violence on college campuses where men are guilty until proven innocent. But this college campus example fits the liberal activism narrative to provide one-way rights and preferential treatment to a victimized group of women. But that system breaks down as soon as women lie about the crime. United States citizens even have less rights than the environment: The government routinely refuses people the right from building on their privately-owned property because it may upset nature. The government uses regulation so they can avoid paying people a just compensation to buy the now worthless property from the owners (Takings clause of the Fifth Amendment). After all, who will purchase a piece of property if they cannot use it for anything than what it is? Even welfare recipients are protected from the government, as if the entitlement is not enough! The 1970 case Goldberg v. Kelly held any welfare recipient must be given a hearing before their welfare privileges are removed. This outcome keeps welfare flowing to people who are abusing it at the expense of someone who truly needs the assistance. The 21st century is all about providing preferential treatment to the “victim”. For example, social security is seen as a means to protect the welfare of the elderly for retirement. However, social security takes money from young persons struggling financially and gives it to elder more financially secure persons. This makes sense, right? How is this not a form of discrimination? Prior to the 20th century government action produced benefits equal to or greater than the burdens of that action by protecting both sides of the contracts (employer / employee, manufacturer / customer, doctors / patients, charities / customers and so forth). In the 21st century the philosophy is “from each according to their ability to each according to their needs” because the government only protects one side of the equation. Consider the Masterpiece Cake Shop case the Court is hearing this term. In that case the laws protect the customers over the owners of small businesses. The owner of the cake shop was found guilty of discriminating against a gay couple for refusing to make a wedding cake because it violated his religious rights. So why should a baker have to violate his religious rights and why aren’t these rights protected just as fiercely as those of a customer (After all, religious freedom is outlined in the Second Amendment)? Also consider how taxes were interpreted by Justice Harlan Stone in Carmichael v. Southern Coal and Coke Company (1937). In Stone’s view taxes are the benefit and privilege of those living in an organized society even if the action creates more burdens than benefits on persons affected by the government tax. In other words, violating individual rights is a privilege to be exercised at the discretion of the government.
Wednesday, November 15, 2017
In the 19th century Charities operated without any fear from liability from the people who used the charities for several reasons. First, persons used their own free will to choose to use a charity and secondly and more importantly, the reward to use a charity grossly outweighed any risk of injury. Many charities today, do not offer medical services because in Tunkl v. University of California (1967) the Court made charities liable to the safety of its users. This may sound logical, but to people who cannot afford healthcare, the risks of treatment outweighs the risks of non-treatment. Because less charities are providing free medical services, Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA, 1986). EMTALA made all hospitals responsible for treating any patient regardless of their ability to pay. Once again, this may sound logical, but the patient bears no responsibility in their free care. Patients must be treated even if they fail to follow medical advice and fail to take medications prescribed at previous free care visits. Patients have to be treated if they are drunk or high or if the ailments are self-inflicted via non-responsible behavior. Patients receiving free care cannot be forced to be a lower priority over a paying customer even if the injury to a paying customer may be worse. Patients cannot even be denied free care if they are disruptive or misbehaving. In fact, many hospitals have reduced the size of their emergency rooms so they do not have to face the liability threat to treat “free” patients. After all, the hospital liability risk for treating a “free” patient is much more than treating a paying patient. The 1994 case the Matter of Baby K outlines the absurdity of the EMTALA Act if anyone wishes to indulge in homework. The bottom line, smaller emergency rooms means less care for anyone in need. Once again, why doesn’t the government subsidize the care it mandates for hospitals? The reason is because liberals view companies (including hospitals) as evil and as the saying goes “the customer is always right”. Which, of course, is not the case. The customer is wrong over 90 percent of the time when it comes to product injury. Drunk drivers wrecking their car into a telephone poll have won more lawsuits than they have lost against car companies. A person who ingested vaginal jelly on toast won an injury settlement when she became pregnant. The bottom line is that modern Constitutional law provides more rights to ignorant and irresponsible persons which in the long run costs responsible and accountable persons higher fees and insurance rates. In the 1907 case, Cotnam v. Wisdom, the court held a patient who received emergency care by a surgeon, who treated injuries on the scene of an accident, was subject to pay for these services even though the patient died. In other words, both patients and doctors had equal rights (irresponsible patient received emergency help, but the patient had to pay for services even if the patient died), which is not what happens today. Patients have more rights than doctors and can sue doctors even when patients refuse to adhere to doctor instructions. In the age of Medicare and Medicaid doctors can no longer afford to make house visits or provide any pro bono services. In other words, medical care is becoming worse due to “one-way” federal and state regulations attacking the medical industry. Let’s consider a more modern example of bullying. Bullying has always happened in our society (As a youth I was bullied and I regretfully bullied others) but it is getting more attention these days because of cyberbullying. One would think we would grow out of our bullying ways but that is hardly the case. Adults still like to bully other people. Since I voted for Trump people I did not even know thought it was right to bully me and call me a bigot and racist on Facebook. I simply ignored them after suggesting it makes little sense to use the same behavior that you are accusing Trump of abusing. In any event, I understand the harms associated with bullying. But, should bullying be under the control of government regulation? No, even if it leads to any rare instances of suicide. Suicide is a complicated issue and it is impossible to say with certainty that bullying is the lone reason for the suicide. Bullying may have been the tipping point for someone to commit suicide, but was it the only reason? Probably not, suicidal thoughts generally persist for a long period of time prior to the act of suicide. A person who commits suicide obviously has some serious psychological issues and it is part of the responsibility of the ill person to garner more help (and what about parents who neglect warning signs). Bullying laws would target bullies and require no action by those being bullied to avoid conflicts. Bullying laws provide no constructive avenues for people who are being bullied to seek protection and help. And why aren’t there any laws to prosecute parents who neglect to heed to the warning signs of suicide? Why don’t those being bullied simply remove themselves from bullying avenues such as social media? The other question is what constitutes bullying words? I have read some benign remarks that have been considered bullying. I have, from time to time, gone into social media chat rooms for sports information (just to read). Many subject threads start out informative, but the posts devolve into personal attacks having nothing to do with the subject matter. And these squabbles are between folks who root for the same team! Is this bullying? Can both parties of the dispute be seen as bullies? Maybe this is defamation and not bullying? Defamation of character by false factual statements is already illegal especially if the harm costs a person business or some monetary loss. My point is bullying regulation starts a slippery slope because it restricts free speech. Maybe we can hold bullies liable under already maintained defamation laws? In the era of political correctness what constitutes bullying is hard to distinguish since we are overly sensitive and become offended much to easily. Are media pundits bullies because someone finds their views insensitive? Are uses of the race card a form of bullying or fear mongering? My fear is that bullying laws will become a liberal outlet to further diminish free speech. In fact, liberals become bullies on our college campuses to remove speech that they do not agree with. Bullies in the long run will judged by others in a negative way because they violate social norms. Hence, bullies will be punished by society by losing jobs and friends because of their anti-social behavior. Government intervention is not always the answer.
Saturday, November 11, 2017
I was talking Constitutional law with my brother (a liberal lawyer) and he kept reminding me to remember we “now live in the 21st century”. I knew exactly what he meant by that: The Constitution is to be interpreted differently now than in the past. How is the “modern” Constitution to be interpreted according to liberals? My brother is a typical liberal because he believes the Constitution should provide more rights and preferential treatment to certain groups of people at the expense of others (even though the Constitution makes no mention of gender, ethnicity, or socio-economic status). That is right, the modern liberal interpretation of the Constitution is not much different than the slave owner view of the Constitution prior to the Civil War. Unfortunately, this type of discrimination is exactly what is happening in our society. This is the “Consequentialist” view of the Constitution where economic progress and social welfare are more important than individual freedoms (equal rights for all). In this text I will examine several examples of how liberal activism is used to protect certain groups of people and why it is nothing more than another form of discrimination. This liberal political philosophy of more rights to one victimized group of people, or what I like to call “one-way rights”, fits perfectly into the overall liberal activism agenda or goal: To pit every demographic group against each other (especially against white-men). The “war on women” and race baiting are common themes in liberal politics and it feeds the narrative that women and minorities ought to have more rights than white men, not just equal rights. Take, for example, the employer / employee relationship. In the 19th century state and federal courts protected both employers and employees from contract breach. In Stark v. Parker (1824) the court held an employee breach of contract did not qualify the employee the right to collect money for work already completed. Conversely, the court held if the employer breached the contract then the employee in that case would be entitled to full restitution of the contract value. In a similar case in 1834 (Britton v. Turner), the court held that the employee was entitled to money for work completed minus damages for the employer to find a replacement. In both of these cases, although decided by vastly different opinions, the courts recognized the value of both the employee and employer relationship by their ability to uphold their end of work contracts. In Stark the employee received no monetary benefit while in Britton the employee received some monetary benefit minus damages for breach of contract. Under no circumstances did employers or employees receive full monetary benefits for breach of contract. By the 20th century the Court viewed the employer and employee relationship much different. That is because most government laws are now written to protect only the employee from discrimination or wrongful termination. But what is to stop an employee from terminating his employment status for discriminatory reasons? For instance, an employee may end his employment because his boss is Jewish, a female, or old. In other words, under modern law the employer / employee relationship is a one-way contract to protect the rights of the employee and not those of employers. Why? Under all circumstances Liberals view corporations as evil and workers must be protected from that evil. This is, of course, a flawed oversimplification view of corporate America. After all, it is the employee, not the employer, who commits acts of atrocity (now known as work place violence). Work place violence makes it sounds as if violence is justifiable in the workplace otherwise it would be called for what it is: murder, assault, robbery, etc. If employers can be sued for their deliberate failure to offer jobs to workers then why can’t workers be sued for their unwillingness to accept job offers? This question merely highlights the fault of one-way discrimination laws. If employers do wrongfully discriminate against employees than violating companies will be punished via the social norms of society that will force them to lose business and over time go bankrupt if they do not correct their bigoted ways. Besides, discrimination laws achieve one outcome: further discrimination. For instance, protecting employers from wrongfully dismissing workers because of age discrimination merely keeps older white employees on the payrolls at the expense of younger females and diverse candidates. Therefore, age discrimination policies merely discriminate against other persons. Diversity and affirmative action policies discriminate against more qualified candidates. My point is that laws for the purpose of protecting employees may protect some workers while discriminating against others. Hence, it is better for the government to butt out of the business of making discrimination laws and let the employer / employee relationship function as it did in the 19th century (fairly). Let’s examine one modern example. I do not care if NFL owners have colluded to keep Colin Kaepernick out of the NFL. If Kaepernick’s non-work-related antics are costing NFL owners money, then they have every right to blacklist him. This is not discrimination, it is what the Godfather would say “it is not personal, it is just business”. Remember, those who truly discriminate will be punished by society without government intervention, coercion, and discriminatory regulations. Then there is the manufacturer and customer relationship. In the 19th century the courts viewed both sides of the manufacturer and customer relationship equally. In the 1858 case Smith v. Brady the court held a customer could refuse to pay for services if a builder violated the contract specifications. Conversely, however, the court held had the customer breached the contract in any way the builder would have recouped all payments. However, by the 20th century in Hennigsen v. Bloomfield (1960) and Greenman v. Yuba Power (1962) the Court rejected any contractual defenses in personal injury cases. If persons were injured by products for using them incorrectly then the manufacturer was still responsible for damages under most interpretations of the law. These cases, once again, made the manufacturer the unequal of the customer. Why? Well, once again, liberals hate those evil corporations who are always in the wrong. Consider a simple example of rent control laws which provide preferential tenants rents at a fraction of real estate values at the expense of the landlord. Would rent control be democratically approved if the burden fell on everyone in the district to contribute to the rent control system? And why doesn’t the government subsidize the landlord for the regulation it mandates? The answer to these questions are simple, every landlord is seen as rich and therefore they are all evil and must pay for their greed. The Left creates a narrative of stereotypes to punish certain classes of citizens under one size fits all government regulation. Of course, anyone with a lick of commonsense realizes all landlords are not wealthy, but the state will treat them all as multi-millionaires.
Thursday, November 9, 2017
I do not like Trump not just because he is an obnoxious egomaniac, but because most of his policies are straight out of the Democratic playbook. He is not a true conservative. That being said, I would vote for him again for a few reasons. First, Trump delivered on his federal court appointees (including the Supreme Court) and that was the primary reason I voted for him in 2016. The Supreme Court could still be a major reason to vote Trump again in 2020. Secondly, I have another reason for voting for Trump in 2020: Chaos. I believe Trump is a product of Republican and Democratic failure to deliver not just politically but for the overall mess created in Washington including massive pay for play and corruption. Washington is now in Chaos and because of that we may finally start to “drain the swamp” of the many bad characters who are robbing the American public blind. It truly hurts to turn on the news and attempt to watch trustworthy news outlets whom seemingly play politics with every story and situation and even make up news stories (which believe it or not is Constitutional). But one thing is certain, if Trump was never elected president then the political status quo would have continued in Washington. Instead, both irate Republicans and Democrats are demanding answers to Russian Collusion by appointing a special counsel: Robert Mueller (remember not one independent counsel was appointed to investigate anything under Obama). This has led to the arrest of corrupt lobbyists including former Trump campaign manager Paul Manafort (not for collusion, but for corruption). We have also learned that Manafort also has ties to liberal lobbyists such as Clinton campaign chief, John Podesta’s brother Tony. We have also learned that Clinton took over the DNC and worked with top Democratic officials to win the nomination by rigging the Democratic primary over Bernie Sanders. There may not have been any Collusion between Trump and the Russians to overturn the 2016 election and any Russian interference (via social media) did nothing to change the outcome of the election. But if Sanders won the Democratic nomination he probably would have defeated the unpopular Trump in the general election (although Sanders is not free from corruption claims himself – his wife used his celebrity to obtain a huge loan for a college she ran and promptly defaulted on the loan and college went belly-up). Hence, Clinton and DNC collusion changed the outcome of the election, not any type of Russian interference. The Trump election also helped us to learn about the corrupt Uranium One deal between the U.S. and Russia under the Obama administration. Many of the players in the Uranium One scandal include the same cast of characters including Robert Mueller, James Comey, Hillary Clinton, Bill Clinton and Barack Obama. Maybe we can learn the Truth behind the fake Trump Dossier and about how that document was used by the Obama administration to spy on a political opponent. Hopefully, under Trump we will get answers to other Obama scandals including IRS targeting, Media targeting, Benghazi, Fast and Furious, Clinton’s email server and others. If people are never held accountable for their corrupt behavior, that behavior will continue to fester in Washington. The chaos of the Trump administration will hopefully do a few things. First, it will expose those media outlets and personnel that have a political agenda and who generate fake news. Secondly, it will “drain the swamp”: of both Republican and Democratic criminals in Washington. Hopefully, it will hold those guilty of collusion and corruption accountable and sentenced to lengthy jail sentences. If some main stream political Republican or Democrat is elected in 2020, then we may never find answers to many political scandals and it would be back to politics as usual in Washington. Unless Trump is elected and unless people are held accountable for our quid-pro-quo system of politics then nothing will ever change in Washington. Although I am not a fan of chaos, there needs to be some chaos to put pressure on the fraudulent players in Washington. I doubt political discourse will ever improve in this country, but draining the swamp is the first step (including the media). And when I speak of chaos, I only speak of the both political and media hysteria. The country can function under such forms of chaos. For instance, despite the Trump chaos, the markets and economy are rallying.
Saturday, November 4, 2017
In Davis v. Federal Election Commission (2008) and Arizona Free Enterprise PAC v. Bennett (2011) the Court held that the governmental compelling interest to “level electoral opportunities for candidates of different personal wealth” was not a reason to limit free speech. All candidates have different “strengths”. Will the government regulate other strengths such as name recognition of a celebrity running against a no-name commoner? In Citizens United v. Federal Election Commission (2010), the Court overruled McConnell where it abridged corporate free speech and Austin v. Michigan Chamber of Commerce (1990) in its entirety. In Austin, the Court held that corporate free speech restrictions were constitutional because “corporate wealth can unfairly influence elections.” However, media corporations have the same power but they are exempt from Austin ruling. In Citizens United the Court held that laws which burden political speech are “subject to strict scrutiny.” The First Amendment was created to protect “political speech” so citizens and groups could speak freely without the threat of being restrained. The Court in Citizens United applies the standards held in Buckley and Bellotti. In First National Bank of Boston v. Bellotti (1978) the Court held that corporations have the First Amendment right to make contributions to ballot initiatives. Bellotti said political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” Justice Kennedy asserts if Austin was correctly decided then “the Government could prohibit a corporation from expressing political views in media beyond those presented here, such as by printing books.” Kennedy also says that Austin is flawed because the “majority undertook to distinguish wealthy individuals from corporations” since both can have “unfair input” on elections. Also “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech.” Austin also brings forth another government “compelling interest”: the anti-distortion rationale. Kennedy says that the “anti-distortion rationale” is a “dangerous and unacceptable consequence because Congress could ban political speech of media corporations.” A corporation that owns a media company would have preferential treatment over other companies that the First Amendment does not distinguish between. Austin is also discriminatory because it “prevents the distorting effects of immense aggregations of wealth” and it is “not aimed at amassed wealth.” Another compelling government interest brought up in the Citizens United case was to “protect dissenting shareholders from being compelled to fund corporate political speech.” Corporations, like the U.S. political system are democratic in nature, and a minority of dissenters lose out to the majority all the time. Besides, shareholders can sell if they do not like the corporate message or feel they wasting profits. In Bennett, the dissent says that “public funded” elections are acceptable even though 100% of the public will not like the candidates (this obviously conflicts with their “protecting dissenting shareholders” compelling interest). Another compelling interest brought forth by the government is the fear that “foreign individuals” working for U.S. corporations could “influence our Nation’s political process.” This argument also does not hold muster since a vast number of American citizens have multiple citizenships and or even live overseas but their right of free speech is not regulated even though they may have opinions of foreign influence. Also, a large majority of Americans are first generation immigrants who still have loyalty to their mother nation, but they are not restricted in their freedom of speech. The dissenters in Citizens United try an “originalist” argument claiming that the Founders never intended the First Amendment to cover corporations. They contend that the Founders disliked corporations. This is true, Thomas Jefferson, like many Republican founders favored agriculture, but would they dislike the many agriculture companies that exist today? This did not stop the government from creating a National Bank and other companies over the centuries that would aid in carrying out its enumerated powers for the People of the United States: Amtrak, Conrail, Tennessee Valley Authority, and a number of financial, insurance, and retirement companies to name a few. Why is acceptable for the government to own corporations free from speech regulation while private sector companies are held to a higher standard of regulation and free speech rules? It was shown earlier that the Court has found on numerous occasions that corporations have constitutional rights. And let’s not forget what the First Amendment says: “Congress shall make no law abridging the freedom of speech.” The Amendment makes no distinction between individual, groups, organizations, unions, or corporations. They only way the dissenters have an argument is if the First Amendment text does not say what it means or mean what it says. The dissenters even go as far to hint that “newspapers” and the media did not have First Amendment rights in the founding era. The dissenters in Citizens United argue that Federal Commission regulations do not account for a ban on corporation free speech because they can form PAC’s. However, PAC’s are highly regulated and are not ideal for midsize or smaller companies. I will not place the full BCRA rules for corporations in this writing (they can’t reach more than 50,000 people, campaign finance money cannot come from the company treasury, they can’t broadcast messages, and there is more) but if you read the entire list of restrictions it is essentially a ban on corporate speech. Corporations are people and money is free speech and this is defended by over 200 years of precedent. People and corporations use money every day for free speech: advertisements, marketing, gifts, travel, pamphlets, books, blogs and so forth and so on. Where would people be without corporations? Corporations may have been a bit foreign to our founders, but by the 19th century corporations have been deep rooted in American history and tradition. Corporations coupled with people have been successful in fighting evil around the world. Without corporations, we could be speaking German. Thus, corporations are just as important to our freedom as are people. This should not be forgotten.
Thursday, November 2, 2017
Is money free speech? The answer to this is yes for numerous reasons I will outline in this text. Freedom of speech covers much more than speech, it covers certain conduct that may be seen as an expression. For instance, the Court has held that flag burning (Texas v. Johnson, 1989) and burning a cross in the yard of a minority family (R.A.V v. St. Paul, 1968) are constitutionally protected by free speech. Speech, regardless of how bigoted or hateful it may be, is tolerated under the Constitution. This is not to say a crime had not been committed in these cases, but a conviction cannot entail limiting free speech. The court has found that speech may be limited if the federal or state government has a “compelling interest” to do so. In United States v. O’Brien (1968) the Court upheld a federal statute that made it a crime to burn a draft registration card. In this case, the Court found that “Congress power to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping” and the “many functions performed by Selective Service cards” established beyond a doubt that “Congress has a legitimate and substantial interest in preventing destruction to draft cards.” Free speech may be restricted if the expression “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Brandenburg v. Ohio, 1969). Free speech can also be restricted if there are “fighting words” or words that are “likely to provoke the average person to retaliation, and thereby cause a breach of the peace” (Chaplinsky v. New Hampshire, 1942). We know people use money all the time in their conduct to express themselves through things they buy, especially gift for others. Is this enough to make money free speech? Sure, especially since money is very rarely seen as “fighting words” or “inciting lawless action”. If there is no compelling government reason then a “tie goes to speaker, not the censor” (Wisconsin Right to Life v. Federal Election Commission, 2006). Money as free speech comes before Supreme Court usually in the form of congressional campaign finance laws. Buckley v. Valeo (1976) was the first Supreme Court challenge to Congressional campaign finance laws. The Court found that the $1,000 limit to campaigns by persons was legal because of the compelling interest the government was trying to prevent in form of corruption or a quid pro quo appearance of abuse: “to limit the actuality and appearance of corruption resulting from large individual financial contributions.” While the court held provisions that capped “contributions” constitutional, they found limits on “expenditures” unconstitutional: “the concept that government may restrict speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure the widest possible dissemination of information from diverse and antagonistic sources and to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” In McConnell v. Federal Election Commission (2003) the Court heard challenges to the McCain-Feingold “Bipartisan Campaign Reform Act of 2002 (BCRA)”. The Court upheld most of the “free speech” limitations placed by Congress in the Act by contending that money is not free speech, pooling money is not free speech, and speech by corporations can be abridged. In his dissent, Scalia takes up all these points and wins the argument. Scalia points to four cases where “an attack on the funding of speech is an attack upon speech itself.” “In Schaumburg v. Citizens for a Better Environment (1980), we struck down an ordinance limiting the amount charities could pay their solicitors. In Simon & Schuster v. Members of NY State Crime Board (1991), we held unconstitutional a state statute that appropriated the proceeds of criminals’ biographies for payment to victims. And in Rosenberger v. Rector and Visitors of University of Virginia (1995), we held unconstitutional a university’s discrimination in the disbursement of funds to speakers on the basis of viewpoint. Most notable, perhaps, is our famous opinion in New York Times v. Sullivan (1964), holding that paid advertisements in a newspaper were entitled to full Amendment protection.” In other words, the Court had a history of protecting money as free speech. As for the pooling of money not being speech Scalia points to the Declaration of Independence: “And for the support of this Declaration, we mutually pledge to each other our Lives, our Fortunes, and our Sacred Honor.” If pooling money is not constitutional then “Congress would be empowered to enact legislation requiring newspapers to be sole proprietorships, banning their use of partnerships or corporate form.” As for abridging corporation’s money as free speech, the Court has long recognized corporations as people. Although corporations cannot vote or run for office, they are taxed and own land. Here is a list of several cases where the Court has held the constitution applies to corporations: Bank of United States v. Deveaux (1809), Louisville, Cincinnati, and Charleston Railroad v. Letson (1844), Marshall v. Baltimore and Ohio Railroad (1853), Santa Clara v. Southern Pacific Railroad (1886), Smyth v. Ames (1898), Hale v. Henkel (1906), Russian Volunteer Fleet v. United States (1931), United States v. Martin Linen and Supply Company (1977), Citizens United v. FEC (2010), and Burwell v. Hobby Lobby (2014). The Left would love to create an Amendment to the Constitution to end corporate personhood, but then they cannot be taxed or the government cannot seize property for eminent domain reasons. Is that truly what the Left wants? As Justice Thomas correctly points out in his McConnell dissent “why the bribery laws are not sufficient” to overcome the concern of corruption and quid pro quo actions in our election process does not make sense? Thomas also points out “Media corporations are also influential” over elections. Newspapers routinely endorse local and federal candidates to “influence people”. If the press is “too influential” what is to stop Congress to regulate our press from writing “biased” or “slanted” news stories. Besides, McConnell was truly about protecting incumbents as well as stopping “attack ads” on TV. Sure, we are tired of “attack ads”, but like it or not that is free speech protected by the First Amendment. Corporations considered as people and money concerns over free speech only seems to an issue in campaign finance, the Court does not seem to question these principles in any other type of case.