Restoring the American Dream (Part V)

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

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

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