The Eleventh Amendment and the Contracts Clause (Part I)

It is important to evaluate the adaption of the Eleventh Amendment and its interpretation to see how individual sovereignty and personal contract rights started to diminish very early in United States history.

Eleventh Amendment legal scholars, Clyde Jacobs and Kurt Lash, give some credence that the original intent of the Article III, Section 2 of the Constitution was to provide States sovereign immunity from citizens of different States. Article III, Section 2 provides “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;-- to Controversies between two or more States;--between a State and Citizens of another State;--between citizens of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” In essence, the Eleventh Amendment repeals the clause “between a State and Citizens of another State” of Article III, Section 2.

Jacobs and Lash argue that immunity may be implied in Article III, Section 2, but that seems unlikely. Jacobs argues that “Controversies between two or more States” means the States have immunity or it could disrupt the peace and tranquility of the nation. For controversies between States to be resolved one State must waive its sovereign immunity for the case to move forward. Both Jacobs and Lash further contend the text fails to define whether or not a State could be a plaintiff or defendant. In other words, in their view, a State may bring suit against a citizen as a plaintiff but States cannot be a defendant in suits brought forth by citizens using a very strict reading of the clause. These are not very strong arguments. The strongest argument is that diplomatic immunity arose from the 1789 Judiciary Act interpreting Article III, Section 2. But should diplomats who commit crimes against United States citizens receive immunity from criminal prosecution? It is hard to imagine our Founders, who just finished a War to free itself of crimes committed by English nobility, would provide diplomats immunity from criminal prosecution in the Constitution. The reason diplomats receive immunity is to maintain peace and tranquility among the nations. But any diplomat who gets away with crimes, hiding behind immunity, would also create friction between nations.

The Eleventh Amendment controversy started just four years after the ratification of the Constitution. In Chisholm v. Georgia (1793), the Court correctly ruled (by a 4-1 margin – Only 5 Supreme Court Justices presided over the Court in the early years) that individual citizens could sue State governments because sovereignty rests with the people, not the States per the Ninth Amendment and the Declaration of Independence. However, the ratification of the Eleventh Amendment, in 1795, superseded and repudiated the Chisholm decision. The Eleventh Amendment essentially provided State governments with the power to default on loans with citizens from different States – obviously a violation of any contract.

Prior to Chisholm, there were a few cases that provided precedent to support the Chisholm holding. The Court allowed a foreigner to sue the State of Maryland in Van Staphorst v. Maryland (1791, the case was resolved before trial). Of significance, Maryland did not contest the suit using sovereign immunity. In Oswald v. New York (1792), the Court held that the State of New York owed a widower back pay for her deceased husband’s salary. New York contested the lawsuit using sovereign immunity since they believed they were free from being sued by a person from another State (Pennsylvania).

In English law, Justice John Holt wrote “If the plaintiff has a right, he must of necessity have means of vindication if he is injured in the exercise or enjoyment of it.” Justice James Wilson wrote one of four brief Supreme Court majority opinions for Chisholm citing it is the people of the United States that are the sovereign power, not the States or federal government. Wilson’s opinion was joined by fellow Constitutional Conventionalist John Blair, Chief Justice John Jay (author of five Federalist Papers), and William Cushing. In fact, Wilson, Edmund Randolph and Oliver Ellsworth (future Chief Justice) were on the five-member committee responsible for drafting the Constitution. This committee took proposals from Constitutional Convention members and wrote document drafts which were reviewed, debated, and edited by the entire convention. Without a doubt these founders understood the intent of Article III, Section 2. At the Pennsylvania ratifying convention Wilson proclaimed “[I]mpartiality is the leading feature, there ought to be a tribunal where both parties (State and citizen) stand on a just and equal footing.” Jay suggested since States could sue citizens it only seem fair that citizens could sue States. Attorney General Edmund Randolph, who defended Chisholm, said although States are sovereigns, governments were created for the happiness of the people. Randolph understood protecting the rights of the people is the main objective of governments. James Iredell of North Carolina dissented backing the sovereign immunity argument. However, there is no record of Iredell contesting the meaning of Article III, Section 2 at the Constitutional Convention or the North Carolina ratifying convention.

Iredell’s dissent consisted of a very broad reading of the Article III, Section 2 and his reliance on the law of nations or foreign law. Iredell saw an analogy between civilian suits being denied against a sovereign country (England) and therefore, he reasoned, civilian suits should be denied against sovereign States. Reviewing foreign law is an acceptable action for Supreme Court justices, but it should only be used for guidance. Any opinion must be based on the Constitution and not just foreign laws.

2019 NFL Mock Draft

1. Arizona Cardinals - Kyler Murray, QB, Oklahoma

2. San Francisco 49ers - Quinnen Williams, DT, Alabama

3. New York Jets - Nick Bosa, EDGE, Ohio St.

4. Oakland Raiders - Josh Allen, EDGE, Kentucky

5. Tampa Bay Buccaneers - Montez Sweat, EDGE, Miss. St.

6. New York Giants - Dwayne Haskins, QB, Ohio St.

7. Jacksonville Jaguars - Jawaan Taylor, OT, Florida

8. Detroit Lions - Devin White, LB, LSU

9. Buffalo Bills - Rashan Gary, DL, Michigan

10. Denver Broncos - Drew Lock, QB, Missouri

11. Cincinnati Bengals - Devin Bush, LB, Michigan

12. Green Bay Packers - T.J. Hockenson, TE, Iowa

13. Miami Dolphins - Daniel Jones, QB, Duke

14. Atlanta Falcons - Ed Oliver, DT, Houston

15. Washington Redskins - Brian Burns, EDGE, Florida St.

16. Carolina Panthers - Clelin Ferrell, EDGE, Clemson

17. New York Giants (via Cleveland) - D.K. Metcalf, WR, Ole Miss

18. Minnesota Vikings - Jonah Williams, OL, Alabama

19. Tennessee Titans - Christian Wilkins, DT, Clemson

20. Pittsburgh Steelers - Byron Murphy, CB, Washington

21. Seattle Seahawks - Nasir Adderley, S, Delaware

22. Baltimore Ravens - A.J. Brown, WR, Ole Miss

23. Houston Texans - Andre Dillard, OT, Washington St.

24. Oakland Raiders (via Chicago) - Josh Jacobs, RB, Alabama

25. Philadelphia Eagles - Cody Ford, OL, Oklahoma

26. Indianapolis Colts - Marquise Brown, WR, Oklahoma

27. Oakland Raiders (via Dallas) - Greedy Williams, CB, LSU

28. Los Angeles Chargers - Dexter Lawrence, DT, Clemson

29. Kansas City Chiefs - Deandre Baker, CB, Georgia

30. Green Bay Packers (via New Orleans) - Parris Campbell, WR, Ohio St.

31. Los Angeles Rams - Jeffery Simmons, DL, Miss. St.

32. New England Patriots - Irv Smith Jr., TE, Alabama

Human Nature is to Waste Energy by Living in the Past

If we could harness all the energy people use living in the past, we would solve our national energy problems. It is a shame, but we love to live in the past, and this is all wasted energy. We are all guilty of it to some degree. However, it has become the signature personality trait of many people who lack strategic vision and forward thinking processes. I witness this type of behavior in everyday life. Unfortunately, most good thoughts of the past are usually overwhelmed by bad thoughts so we dwell on failures or thoughts of revenge and getting even.

This negative thought process is what leads to rumors. Ninety-nine percent of all rumors are false stories put in motion by angry people with a vendetta who want to get even with an adversary. In other words, people have an “ax to grind” and this is just wasted energy on something we cannot change the outcome – it is in the past. This does, however, demonstrate that our problem solving skills are non-existent. In fact, it is much more likely that people would blame and point the finger at others then to offer solutions and move forward. This is common in the workplace, and in everyday life.

This behavior is what leads to bullying and today it is much easier to bully using technology and social media. People can use these communication mediums to post anonymous messages. What’s worse, the bullying messages are not even unique – they have been passed down from one bully to the next.

These types of personalities will typically draw conclusions by hearing only one side of the story. And what’s more disturbing, we are more concerned about our neighbors or coworkers lives then we are with our own or our families. It is a sad existence and I feel sorry for these folks. They have nothing better to do with their own lives then to try to ruin someone else’s. And to help their effort bullies are good at brainwashing others. Their posse of brownnosing minions carryout the bullying attacks.

Of course, these same bullies can become hypocrites when they need something. They can turn on the charm to manipulate the people they have been bullying. After all, people usually only contact another human being when they need something. It is no longer human nature to contact families, relatives, friends, or coworkers to see how they are doing.

What is the result of this type of behavior? Unfortunately, the solution is for people to stick to themselves and avoid others. This means not doing anything more than necessary – like volunteering. And it is volunteering that makes this country great. Volunteers put themselves at risk for unwarranted attacks by selfish self-centered narcissists whose only purpose on this earth is to be carbon emitting oxygen thieves. Yes, climate change just may be manmade in the form of useless drivel and wasted energy from people around the globe.

Imagine how much better this world would be if people minded their own business and used their energy and intellect to solve problems without blaming others. Instead, we are a populous of dopes that cannot even come up with their own bullying quotes. Our offspring are learning trivial behavior from their parents that will spiral out of control over the years. It is a sad state of affairs, and we are all guilty of this to some degree.

It is our responsibility to work hard throughout life to better ourselves. I do not see this. It seems most adults are still stuck in our childhood brains – kids will throw their best friend under a bus to avoid punishment. We are still more concerned about suing our friends and neighbors over trivial grievances than simply saying “hi” or waving hello to them when we see them.

We are training our brains to be wired wrong – by being narcissistic self-centered rumor oriented problem creating followers who want to bring people down instead of leaders who want inspire and lift people up. Sure, many people with flawed characters are in leadership positions and they think they are good leaders. But this is far from the truth because they got into their roles by being deceitful lying backstabbing folks unwilling to be accountable or take responsibility for their actions. Instead they are willing to do what is best for themselves and not what is best for the company or others. Brain storming sessions quickly become blame storming sessions and these manipulative leaders will resort to any strategy to protect their shady images including bullying and other passive aggressive behavior.

So it is imperative that humans work hard to be better people by living in the moment to solve future problems. If our personas do not change for the better, our negativity will be the demise of the human race.

Contracts and Natural Law Fundamental Rights (Part V)

Freedom of Contract

As far back as 1795 in American history, federal courts established contract rights as natural rights necessary to protect property and other individual rights. In Vanhorn’s Lessee v. Dorrance, judge William Patterson (a founding father) declared a Pennsylvania statute to be null and void for violating the contract clause of the Constitution. Patterson did admit that citizens must sacrifice property rights for public welfare (with just compensation), but only under “grave emergencies”.

The right or freedom of contract established by the Court in Lochner v. New York (1905) was powerful (actually freedom of contract was elevated eight years earlier in Allgeyer v. Louisiana, but this case does not receive anywhere near the same attention of Lochner). In Allgeyer, the Court’s justice Rufus Peckham held in a unanimous decision: “The 'liberty' mentioned in [the Fourteenth] amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.”

What made Lochner (and Allgeyer) unusual was the fact the Supreme Court elevated the freedom of contract as a right even though it did not exist in the Constitution. While Lochner v. New York only protected economic contracts, it is apparent that freedom of contract could be used to protect rights that exist in the Bill of Rights such as property rights (buying and selling property is protected by contracts) and religious rights (contract with pastor, priest, deacon, and even the bible or God). That is why conversations between a spouse, doctor, or religious leader are considered privileged, because they are protected by a contract. Freedom of contract could also protect other rights not included in the Constitution such as worker rights (implied contract between employer and employee) and civil rights (implied contract of decency, tolerance, and respect to avoid violating the rights of others – the golden rule). Therefore, the right or freedom of contract is a powerful tool to protect both individual rights within or outside the Constitution. However, the Supreme Court (also referred to as “the Court” throughout this book) rescinded this right under FDR’s progressive New Deal Court in cases like Nebbia v. New York (1934), Parrish v. West Coast Hotel (1937), and Wickard v. Filburn (1941). While the right to contract was killed by the Court, the Court continued to elevate other rights not found in the Constitution including privacy, marriage, sex, abortion, and self-defense to name a few.

There is a zero-percent chance the Court will restore the right of contract. Why? Both the Right and Left abhor the Lochner v. New York decision. It is estimated that fewer than 5% of legal scholars believe that Lochner was a good a decision and the remaining 95% are ecstatic it was overturned. Consider the fact that 90% of legal scholars believe that the Slaughter House cases (1873) were decided improperly. Yet, the Court has refused to overturn that case after 140 years. If the Court is that reluctant to overturn a case that most agree was wrongfully decided, then there is no chance the Court will reinstate Lochner and the freedom of contract. There is, however, a strange relationship between Lochner and the Slaughter House cases. The dissent argument in the Slaughter House cases was not much different than the majority opinion in Lochner. Thus, it begs to reason why one opinion is revered while the other is demonized? Nevertheless, this conflict may be precisely the reason the Slaughter House cases have never been overruled.

So why write a book about the freedom of contract if it has no chance of being restored? To illustrate how the Court has veered from the true textual meaning of the Constitution diminishing its power to protect the rights of all Americans. Had the Court remained committed to the textual meaning of the Constitution and the right of contract, it would have proved to be a useful tool to solve both conservative and liberal problems without the Court doing whatever it takes to obtain a desired result including using discrimination, controversy, and legislative activism.

Contracts and Natural Law Fundamental Rights (Part IV)

United States citizens tried to inject social compact theories into welfare debates. The land reformers of the Nineteenth Century tried to argue that land belonged to everyone equally. Their theory suggests there should be no private property, that land should not be bought, sold, gifted, or willed. Moreover, they argued that the living, not the dead should control the land. Land reformers would argue that the sea, light, and air are all publicly owned. All that being said, none of the great theorists of social compact theory agree that all land should be publicly owned and redistributed to only living citizens. In their defense, Land reformers like to point to Locke’s statement: “Labor makes for the greatest part of the value of things.” However, this is not condoning welfare or land redistribution. It is condoning capitalism and those that work will have the best opportunities to reap the benefits of their labor and to purchase land. In fact, one of the biggest arguments made by land reformers is that it will reduce the size and power of government. Of course, we have learned that none of this true in modern America. Redistribution of wealth and welfare has grown the government in astronomical proportions over the past 60-years. Land reformers best argument from social compact theory comes from the Pufendorf point of view where citizens natural law rights are not absolute and therefore property rights can be abridged for any reason the government sees fit. However, this is the antithesis of the social contract theory America was founded on. Even if rights are abridged there must be a compelling reason and the government must use the least evasive method to achieve its objective. The Homestead Act of 1862 proved that land equality did not work. People who received free land got greedy and willed it to their children. This ended the land reformers bid for perpetual land equality. This is precisely why socialism does not work: everyone is partial to their own needs and greed. Besides, land reformers arguments that “land cannot be bought or sold” conflicts with modern liberalism principles that that rights such as healthcare can be bought and sold.

Modern progressives and liberals have moved away from the Declaration of Independence refuting natural law fundamental rights and social contract theory. However, using social contract theory arguments in favor of illegal immigration, lenient immigration laws, and gay rights would make more sense than the hollow arguments put forward merely to win political points (and votes). There are several reasons for liberals abandoning social contract theory. In particular, many progressive or liberal policies do not fit into social contract theory and the principles outlined in the Declaration of Independence. For instance, capitalism or economic freedom and private property rights are all supported by social contract theory. Also, it is important to understand that original progressives were racists. They believed in racial purity and therefore were proponents of anti-immigration, segregation, and legislation against women’s rights. But it was not just progressive and liberals dissing the Declaration of Independence. Far right conservatives did the same thing in the 1970s in response to the civil rights movement started in the 1960s. The bottom line is that the Declaration of Independence is long forgotten in modern society, taking a back seat to the incorporation of the Bill of Rights to the States (discussed later in this text).

The turning point in the movement against social contract theory started after the Civil War. After a brutal war, the people feared Lockean and Declaration of Independence principles of revolution and secession. The move from popular sovereignty to government sovereignty took many forms: majority rule, emergencies, social justice, presumption and other methods discussed later in this text. America began to look more like Alexander Hamilton’s view of big government over Thomas Jefferson’s political principles. A change in focus from political to social issues was also fundamental in mitigating social contract theory. There was a progressive ignorance indicating “creative political intelligence” was needed to “tame” social contract theory. However, progressives fail to see how social contract theory protects social rights such as friendships and community relationships. Progressives also incorrectly hypothesize “society makes individuals, individuals do not make society.” Obviously both statements are true, not just one.

Freedom of contract to protect natural rights was also hypothesized as a method to replace social contract theory: “There was no lack of postbellum lawyers and judges who deemed freedom of contract under the law a far safer bet than a social contract above the law.” But this text believes there is no reason that freedom of contract and social contract theory cannot coexist since both protect natural rights and popular sovereignty. And freedom of contract may not support overthrowing the government but it supports the formation of political assemblies and protests (social contracts) to keep government in check.

Is social contract theory dead in modern America? Yes, and the reasons are outlined below:

• A “state of nature” died a long time ago. A state of nature implies little governance so citizens can live free with nature. But as populations and society grew with technological advances much of the United States is no longer in a state of nature but is now a land of laws, institutions, and traditions.

• Supreme Court justice, Oliver Wendell Holmes, did his best to destroy the “higher law principles” of social contract theory. Holmes said “The jurists who believe in natural law seem to me to be in that naïve state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere.” Holmes and other progressives such as Walter Lippmann moved society away from higher law principles to one of majority rule. Lippmann said “Politics is not concerned with prescribing the ultimate quality of life.” Moreover, Lippmann suggested “that the public philosophy shall be believed to be right.” However, all that being said, following natural law principles does not violate the right of others, but majority rule in United States history has been used consistently to violate the rights of our neighbors (more on this later in the text).

• The question of who consents to the social contract is open for debate. And is consent absolutely necessary for social compact theory? There is no question that the founders and their generation consented to the Declaration of Independence and the Constitution. They signed the documents and even held state ratifying conventions for the Constitution. But, no one has officially signed on to these documents in over 240 years. .

Do United States citizens and aliens consent to government? The answer is both yes and no. There must be both political authority and political obligation for consent. Political authority is when “the leaders get the right to govern only those who agree to give them this right in a social contract”. Political obligation is when the “people are obliged to obey the state’s orders only if they agreed to do so in a social contract”. Those who do not consent have more rights than those who do consent. So, who consents to social contracts? Those who take an oath to uphold the Constitution; immigrants (illegal or legal) who move to the United States; those of us who inherit property; people who violate the rights of others (criminals); those of us who take more out of system (welfare and public benefits) than put into it (taxes); even those individuals or companies who benefited from temporary welfare benefits or bailouts have consented unless they paid back their grants with interest; individuals who fail to pay their taxes on time or cheat on their taxes; certain individuals and companies who work for government contracts; and military personnel as well as many public jobs. From this it is easy to surmise that a majority of Americans do consent to government and the social contract theory. Non-consenting individuals’ natural law fundamental rights should be honored as outlined in those critical documents at the founding: The Declaration of Independence, the Northwest Ordinance, and the Constitution. Consenting individuals’ rights might be abridged. For instance, military personnel lose rights when they tried in military tribunals; Criminals are confined and even when they are free they face parole guidelines such as being forced to wear a tracking device; Welfare recipients, if the government wanted, can be drug or alcohol tested and compelled to work jobs they do not want for their benefits; Public officials can be held to higher criminal standards such as treason; Layers, who take an oath to uphold the Constitution, can be disbarred for life from practicing law if they violate their duties whereas, most individuals who are fired from a job for violating ethical standards can simply get a similar job at another company. One thing is certain, consenting or not, all citizens should be held to the principles outlined in the Declaration of Independence and Constitution. Put another way, citizens and aliens consent only to Constitutional laws but no one consents to unconstitutional laws.

It is the view of this text that most Americans do provide consent and those who have not consented can be held to the principles of the Declaration of Independence and Constitution so long as their rights are not abridged for any reason. So, consent has sort of survived the test of time.

• Human or natural rights are the only aspect of social contract theory that has sort of survived the test of time. However, the “rights revolution” starting in the 1970s has increased the number of rights, but in doing so, it has also diluted our rights. Animals, nature, and abortion rights do more to mitigate our natural fundamental rights because it suggests elective surgery, a tree, and even drinking coffee are on par with true natural law fundamental rights such as obtaining knowledge and the sanctity of life. Instead, animals and nature can be protected through “human” contract rights with nature. In fact, social contract theory and a state of nature can be formulated to protect our environment. Social contract theory and higher law principles can also be used to protect nature as God intended. To make matters worse, many rights given to women, gays, and minorities in the form of diversity and affirmative action provide some groups of people preferential treatment. One should remember President Andrew Jackson’s campaign slogan: “Equal rights to all; special privileges to no one”. President’s Woodrow Wilson and Herbert Hoover would do a huge disservice to rights by suggesting “human rights over property rights”. After all, what good are an individual’s rights if the home they live in is confiscated by the government without just compensation. Finally, Franklin Delano Roosevelt (FDR) campaigned on social contract theory in 1932. However, in reality, his social contract theory was, in essence, social justice or welfare doing another huge disservice to the doctrine. But, in FDR’s defense, he was not the genius the Left made him out to be because he merely copied what France had already accomplished with regards to social rights.

Can social contract theory be resurrected? Probably not, although many have tried. Newt Gingrich’s “Contract with America” was at best a pseudo reenactment of the social contract theory. This text focuses on what reforms are needed to protect our true natural law fundamental rights to stop the dilution of rights (freedom of contract). This text is not trying to accomplish this goal by reinstating social contract theory but it will try to achieve this task through other Constitutional methods. Besides, it is not acceptable to pick and choose which parts of social contract theory are acceptable and which ones are not. Case in point, by doing so, the South found ways to justify slavery. However, the South could not justify slavery if they followed the entirety of Lockean and Jeffersonian social contract theory. For this reason, this text would like to see the full reinstatement of the Jeffersonian Declaration of Independence preamble for United States social contract theory. But that may not be possible based on the damage it has already undertaken.