Erasing History means the History of Civil Rights Violations will Continue

Progressives want to erase history by tearing down and redacting any mention of any confederate or slave owner. Erasing history is not only a violation of the First Amendment, it is a erasing the truth. How is this any different than the behavior of Holocaust deniers? Of course, any current person preaching these things would have been racist too if they were born in the Confederacy. None the less, erasing history is dangerous because history has a way of repeating itself. If you read my book (Defending Freedom of Contract), I do not like the term racism for a few reasons. First, it is referenced way too often as a rallying cry of the left. They label every person who disagrees with their ideas as a racist. Second, what matters is if someone's rights are violated then that wrong needs to be corrected. For instance, it does not matter that George Floyd is black what matters is that his rights were violated and that wrong needs to be corrected. It is a lot simply and less polarizing if we view the law through rights violations and not racism.

Just as George Floyd's civil rights were violated so too were hundreds of persons affected by violent protests including many that were killed, injured or lost their businesses. Furthermore, the civil rights of home and store owners in the occupied territory of CHOP or CHAZ are also having their rights violated. Since when can any persons occupy an area of the United States without a vote. We live in a Republic that has democratic principles and the action of ceasing property is a violation of anyone rights.

My point is this, what difference does it make if we erase history only to violate the rights of persons similarly to how rights were violated during the slavery and segregation eras? It does not and this is what I mean by history has a way of repeating itself. By eliminating history of rights violations we are opening a new era of rights violations. I be willing to bet defunding the Police will lead to thousands of rights violations where persons seeking help to protect their safety and rights will be ignored. As the WHO song goes, "Here's to the new boss, same as the old boss". Political correctness and black lives matter is nothing more than shifting rights violations onto police and other non-believers. Their behavior is no different than that of the slave owners they detest.

Liberal Activism and One-Way Rights (Part III)

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.

Liberal Activism and One-Way Rights (Part II)

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.

Liberal Activism and One-Way Rights (Part I)

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.

The Dangers of Bad Precedent and Changing the Meaning of Words (Part I)

One of the biggest duties of the diligent and loyal liberal is to change the meaning of words if they do not think they are “fair” – and marriage is one of them. The biblical definition of marriage is a union between two people of opposite genders for the purposes of procreation. Of course liberals find this definition biased or bigoted because it does not support the gay movement. The issue they have with the definition is obviously the part that says “opposite genders”. Unfortunately, the Supreme Court agreed with this liberal outrage in their 2015 decision: Obergefell v. Hodges.

I have a great deal of empathy for the gay movement, but that does not mean it has to be hastily forced on all people by setting bad precedent through the bending of the rule of the law. That is exactly what happened. Obergefell v. Hodges is a terrible Supreme Court ruling and commits many of the same mistakes as the Roe v. Wade decision to legalize abortion.

In Obergefell and Roe, the Court used substantive due process in its ruling. However, to use such measures, gay marriage and abortion must be “deep-rooted in American history”. Obviously that is not the case: gay marriage and abortion have been taboo throughout history.

In Obergefell and Roe, the Court overruled statutes in all 50 states, including many liberal ones. In 1985, Ruth Bader Ginsberg called Roe a bad decision because it legislates from the bench and she felt that pro-abortion laws should have occurred naturally over time as voted on by the people of each state. By doing this, she felt, the gradual move towards an abortion state would be much less controversial. So what does Ginsberg do 30 years later, commit the same mistake that was done in Roe that she spoke out against. The right decision by the Court would have been to use the Tenth Amendment and let the people of the individual states determine the outcome of gay marriage and let it evolve over time. Over 80% of the states already support gay marriage, so it is just a matter of time before each state agreed.

In Obergefell and Roe, the Court determined that marriage and abortion are fundamental rights. They came to this conclusion through the “Due Process Clause” and “Equal Protection Clause” of the Fourteenth Amendment. Once again, they used their imagination to conjure up some flaky way to say our founding fathers intended for abortion and marriage to be rights, but just forgot to write it in the Constitution. The Constitution clearly outlines our rights, freedoms, and liberties. If these are truly rights and the will of the people then the Constitution should be amended. In essence, the Court, has given more liberties and rights to women and gays at the expense of the unborn, spouses, and religious folks in its decisions on Obergefell and Roe.

In Obergefell and Roe, the Court cites many cases in their majority decision. However, none had to do specifically with gay marriage or abortion. In Obergefell the court cites Loving v. Virginia which outlaws statutes that prohibit interracial relationships (This is exactly what the Fourteenth Amendment was drafted to prevent – racial bigotry, but it does not change the meaning / definition of marriage.) They also cite Lawrence v. Texas which states gay sexual relations are legal. Once again, this does not change the meaning of marriage.

By the logic used in Obergefell and Roe, what would not constitute a right? Healthcare was also ruled as a right. If marriage is a right, then wouldn’t follow that divorce is also a right? Most pro-abortion women would never have an abortion. It makes absolutely little sense to make things a right that is not ideal, or something that everyone does not want or necessarily need. These are dangers of saying that a college education is a right or owning a home is a right. Over seventy-five percent of college grads are not finding work, but have built up a huge debt. And the government trying to get every American into a home led directly to the housing bubble and subsequent financial collapse in 2008. Rights, liberties, and freedoms are not forced upon the people, they are natural and common to every person.