Copyright 2011 by John T. Reed

I heard Sandefur speak about his book, The Right to Earn A Living at the San Francisco Commonwealth Club. I bought a copy of his book at his speech. Several weeks later, I mentioned I was reading the book, and my son Dan said he had just started reading it, too. He bought it after hearing Sandefur on a talk radio interview.

The information in the book is important. Unfortunately, it is a somewhat difficult read. I am not sure I ever understood the chapter on “substantitve due process.” Sandefur acknowledges in his first paragaph of that chapter that “…this theory is difficult to understand on its own terms…”

Some may say that’s obviously a personal probelm. You are not as smart as Sandefur or just a dope in general.

Perhaps, but when I look at our formal education, I find that he has a bachelor’s degree from Hillsdale College and a law degree from the Chapman University Law School. I have a bachelors from West Point and an MBA from Harvard. I ought to be able to keep py with him academically.

I think he needs a rewrite and an editor and maybe to teach a seminar on that subject to laymen, not law students, before he redoes the chapter. He probably had editors. He needs new ones. Or maybe he needs a Grant’s captain. Civil War General Ulysses S. Grant. had a really stupid captain on his top staff. No one could figure out why. Turns out he was used to test the simplicity of battle plans. Grant would give the battle plan to the captain, then listen while the captain explained it to another person. Grant kept simpifying it until the captain explained it right. Sandefur needs a Grant’s captain.

The book’s point is basically that the right to earn a living was once sancrosanct—the most central of our rights or liberties—because when you cannot make a living, you starve.

The right to pursue happiness in the Declaration of Independence is mainly the right to earn a living however you want. The right was well-established in the Magna Carta and English common law, both of which have always been controlling generally in America.

But then liberal judges, starting in the late 1800’s “Progressive Era,” simply decided to rewrite the Constitution so as to match the trendy government-knows-best mindset of the Progressives. I knew there had been some activist judges, but seeing the whole history laid out one after another made me realize this is a far bigger problem than most people understand.

The fundamental principle of the Progressives seems to be elimination of minority rights because majority rules is all we need. That is obviously wrong. Minority rights are crucial to democracy, otherwise any 51% group could do anything they wanted to the 49% or less groups including tax away all their money, murder them, require them to be slaves, discirminate against them, and so on.

The minority getting screwed here are people who want to make a profit as opposed to a salary. Progressives can see the value of protecting minority rights in some areas like civil rights of “disadvantaged” minorities. But they simply scoff a the notion that profit-seekers need any government protection.

Judges often say they defer to legislative power to enact laws. That is valid except with regard to minority rights, but the courts have declared that profit-seeking businesspersons, while mathematically a minority, are so economically powerful that judges can ignore their minority rights. This contradicts facts like that many profit seekers just want to drive their own cab or deliver a letter or sell lemonade. It is also based on a Dickensian view that the poor are all innocent and virtuous and the rich are all evil and powerful. The writings of Charles Dickens, e.g., a Christmas Carol starring Ebeneezer Scrooge and Bob Cratchit, are fiction, for Chrissakes! You cannot base court decisions literally on fictional depictions of the world, especially on 1848 depictions of the world in 2011.

The 14th Amendment was passed after the Civil War in 1868. It was enacted to help freed slaves in the South but has implications for the right to work, especially the last part of section 1:

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

legal principle that robs right to earn a living authority for that principle
licensing pofessions and businesses  
“rational basis” test, which requires courts to assume that almost all laws passed by elected officials are constitutional; if you got a probem with the law, says this doctrine, write your Congressman; don’t come running to us judges; another way to put is that if Congress is not restrained by the Constitution as they should have been, the courts must restrain them; if Congress ignores the Constitution and the courts let them, both are in a conspiracy to violate their oaths of office United States v. Carolene Products Co., 304 U.S. 144, 152-153 (1938) and Nebbia, 291 U.S. 537; U.S. v. Carolene Products Co., 304 U.S. 144 (1938)
“police power” which is the basis for wage, rent, and price controls ; also government’s authority to “protect the safety, the morals and the welfare of the public”  
vague “public nuisance” law theories  
vague prohibitions against “tortious interference” with contracts  
vague rights to “fairness”  
“substantive” due process  
Constitution’s contract clause can be ignored, especially in case of “emergency” (the Constitution has no “emergency” or “wa”r powers except for the right to suspend habeas corpus in the event of invasion or rebellions, people often point to Lincoln‘s suspension of habeas corpus to prove even the best presidents ignore the Constituttion at times. He did not ignore it. He had a rebellion which explicily entitled him to suspend habeas corpus. Even then, the emergency habeas corpuspower does not permit altering contracts.) West River Bridge Company v. Dix, 47 U.S. 507 (1848)
disparaging all pro-economic liberty arguments as “Social Darwinism”  
“dormant commerce clause”  
unequal bargaining power requires tilting toward the little guy  
“commercial” speech is entitled to fewer rights than other speech  
use of laws and regulations to reduce or eliminate competition like license requirements that are expensive or otherwise onerous or that deny licenses or permits altogether; tariffs; zoning; agricultural price controls and restrictions on cultivating certain crops; franchise acts (e.g., restriting the number of car dealers in a geographic area); restrictions on the creation of new required schools like law or medical schools; taxi permits are classic example with NYC taxi permits currently costing more than $600,000 per cab; these laws create that which the antitrust laws below are intended to prevent, go figure; economists call these barriers to entry—they reduce prosperity  
“living” Constitution; concept that the Supreme Court can revise interpretations of the Constituiton as they see fit over time Blaisdell, 290 US 442-43; Keystone Bituminous Coal Association v. DeBenedictis, 480 US 470, 472 (1987)
the right of non-shareholder “stakeholders” to have some say over private businesses ways of doing business  
anti-trust laws that punish too much success, compounded by extreme vagueness; governments, e.g., US Postal Service, and unions are exempt from anti-trust laws 1890 Sherman Antitrust Act; 1914 Clayton Antitrust Act; U.S. v. Aluminum Co. of America, 148 F 2d 416 (2d Cir. 1945)
fair trade laws (set floors on prices to prevent price competition); commodity price boards that set minimum prices for commodities like milk Federal Agricultural Marketing Act of 1929

Sandefur said his book is based on two propositions:

a) the freedom to make one’s own economic decisions is not primarily rooted in economics but in political philosophy

b) a free society is not a matter of efficiency but of justice.

I do not really understand (a). Philosophy is optional. I thought this was a law book.

With regard to (b), it’s both. We should have the right to earn a living both because it is just and because it produces the greatest good for the most people. Adam Smith’s “Invisible Hand.” I am not saying we should have economic liberty because it is the best for the mass of people. But it is and that is a sort of bonus for leaving people alone.

Sadefur is a bit too literal at times. That may be an occupational hazard of being a lawyer. For example, he proves the phrase “social Darwinism” is invalid because it is directed toward mere Protestant work ethic and Lockean belief in the sanctity of private property not evolotuion theory.

Uh, Tim, the guy who popularized the phrase “social darwinism,” Richard Hofstadter, was just a demagogue who was searching for a term that would make his political opponents sound horrible. Neither he nor his followers give a damn whether John Locke based his private property principles on Darwin.

Sandefur did not say this but reading his book caused me to think of it. Sometimes minority rights are trod upon because the minority is deemed unworthy by the political majority—like blacks in the South before the Civil Rights Act of 1964. Other times, they are trod upon because the political majority deems the minority to be super human and evil and terefore in need of being restrained by the government. This was the basic idea behind many Nazi laws against Jews: “they have too much power and control because they are good with money and evil,” yadda, yadda.

Profit-seeking business persons, regardless of whether they control large enterprises or are successful, have been treated as evil and overly powerful since around the tur of the 20th century. This has led to gross treading upon their minority rights.

Back in England, there was a bias in favor of the right to earn a living because idleness was considered bad especially among young men. Now, we have very hig unemployment rates among the young, due in large part to the minimum wage laws, and altough the idleness is condemned, the cure of repealing minimum wage laws is considered unthinkable. There was also, after Adam Smith, writing in 1776 by coincidence, a belief that maximum competition among businesspeople was ni the interests of society.

If a politician today sugests going back to no minimum wage and unrestrained competition, he will be accused of trying to turn back the clock and abandon the gains modern society has made over the unjust ancient times. In fact, they had it right on the subject of young male idleness and competition two centuries ago and we have it wrong now and we have gone up a dead end which we should back out of.

Neither I nor Sandefur advocate a sort of Amish lifestyle where everything that is 200 years old is considered best. But the plain fact is the body politic got it wrong with regard to the minimum wage and anti-competitive laws and regulations like licensing. They must be undone.

Here is a quote from page 91 of the book

The point is that when a citizen’s right to life, liberty, or property are made revocable at the whim of the ruler [Congress, courts, president], the individual is no longer free but is unfree—is, in some sense, a slave.

Loss of intent requirement in criminal laws

There was an important, related story on the front page of the Wall Street Journal on 9/27/11. It basically said that without much notice by the public, the Congress has been passing more and more criminal laws where the prosecution does not have to prove intent.

It used to be that criminal law had to be based on a statute, as opposed to civil common law which is based solely on centuries of court decisions. And criminal convictions required proof of intent. The Latin phrase is mens rea (guilty mind).

This change means you can go to jail for not reading and memorizing every such law. And the article gives a number of examples of people who did go to jail for violating laws they did not know existed or for assuming an emergency situation took precedence.

Why is this happening? The article says lawmakers and prosecutors are often frustrated by the difficulty of proving intent.

Legal experts would say, “Tough. Depriving a person of his liberty is supposed to be difficult. Americans are guaranteed life, liberty, and the pursuit of happiness…as well as due process.”

Also, some say the lawmakers often just forget. They have no checklist for making sure a law is written correctly.

What about the courts? Why don’t they impute a mens rea requirement? I don’t know.

I have repeatedly said that Americans are losing their freedoms the way the boiling frog is losing his life—so gradually that they do not realive what is happening. I have further said the phrase losing your freedom is not some subjective impression. It can be very precisely measured with two metrics

• the percentage of GDP that is spent by the government

• the number of laws and regulations that are in effect

If either or both of those go up, and they have, your freedom is going down. In 1790, the first U.S. federal criminal law was passed. It made less than 20 behaviors illegal and punishable by jail time. Now, there are 4,500 federal criminal laws. And there are many federal regulations that have criminal penalties. You used to have the freedom to engage in those 4,500 - 20 = 4,480 behaviors. Now you don’t.

You used to be free to spend a higher percentage of the money you earned. Not any more. Now, you are required to earn it and turn 25% o 50% of it over to various levels of government, who will use it to buy the votes to take an even higher percentage of your money away from you in the future.

There is a tipping point where you are no longer free. And it is not 100%. It is probably less than 50%. Move to Europe and see how free you feel there where they already take a higher percentage of income.

The Journal also noted that an increasing number of ciminal laws are vague. The American people, for all their talk about freedom and liberty, do not understand that vague laws are one of the main tools of tyrants.

Like I said, boiling frog syndrome.

Basic divide

The basic divide in America today and since the late 1800s is between those who think each individual should be free to pursue happiness, including economic activities, on the one hand, and those who believe the role of government is to redistribute wealth so that roughly equal results are achieved across the whole population.

It is between those who want equal opportunity and those who want equal results. Neither side oppose the basic idea of the other, but each claims their trumps the oter when there is a conflict and there is a conflict in most cases.

Stated more crudely, the left wants to use goverment coercive power for force Americans to live their lives the way the Left wants them to live them. The Right does not want to tell anyone how to live their life, except with regard to sex subjects like gay marriage and abortion.

I’m roughly a Libertarian. We want to be left alone except we believe government should prevent A from harming B. Your freedom to wave your fist stops at my nose sort of thing.

Ending economic liberty often inspired by fiction books

Have you ever noticed that vast extensions of government control over business stem from fiction books or poorly-researched non-fiction?

The biggies are:

• Upton Sinclair’s The Jungle, which was a novel that resulted in the creation of the Food and Drug Administration. (Yes, I think the FDA should be shut down. No interested in discussing it here. Private busines incentive to keep a good reputation and informed consumers will take care of it not perfectly but better than the FDA which delays approval of good drugs, makes phony meat inspections that make no effort to spot infected meat, and so on.)

• Rachel Carson’s Silent Spring is billed as non-fiction but it was poorly researched and is now in disrepute among scientists. It is considered the instigator of the environmental movement. It got DDT banned which has resulted in the deaths of millions from malaria that would have been eradicated or nearly so had DDT not been banned.

• Karl Marx’s Communist Manifesto which has the nutty basis that all wealth stems from labor and profit is immoral.

• Charles Dickens Christmas Carol, which was admittedly fiction and is the basis for taxing “the rich” more than others, punishing big business, small business, even struggling business, as inherently evil

Economic freedom rankings of countries

See to see whe rankings of the most economically free countries. Hong Kong is number one. It has been part of Communist China since 1997. I saw Fox Business’s John Stossel start a business there on TV. It cost $5.

The U.S. is number nine, which the Heritage Foundation says is in the “mostly free” group. We were number 4 in 1995. Only the first six are “free:”

1. Hong Kong

2. Singapore

3. Australia

4. New ZEaland

5. Switzerland

6. Canada

There are rights and there are rights

Sandefur points out that the liberal support for rights is selective. They support rights like speech—although not “commercial” speech—free travel, favoritism toward ethnic groups that have shown a willingness to become “slaves on the liberal plantation” like blacks, Latinos, Native Americans, and so on.

But liberals, and the many liberal judges, have no use for other rights like enforcement of contracts, right to not have your private property taken by the government without just compensation, and the right to earn a living. Thus those rights are subjet to a legal theory that is not applied to rights of speech, blacks, and so on: the “rational basis” test. Rights that liberal favor must pass higher tests like the wording of the Constitution and netting of advantages and disadvantages. The rational basis test, on the other han, says laws against contract enforcement, taking private property, and so on need only have some bit of logic—no need to prove net benefits or need to pass the test of wording of the Constitution. Here is how Sandefur desribed the “rational basis” test.

The standard is so lenient that it effectively allows the legislature power to act as it pleases, on the theory that the rights at issue do not need serious protection by courts.

Indeed, one court said economic regulation is

not subject to courtroom fact-finding and may be baned on rational speculation unsupported by evidence or empircal data (Beach Communications, 508 U.S. 315)

In other words the legislature can treat the people like Guinea pigs and do whatever half-baked experiment they want on them regardless of the Constitution prohibiting it or it failing.

The George Orwell novella Animal Farm famously mocked government’s version of equality with the line

All animals are equal, but some animals are more equal than others.

Our founding documents say we are all created equal and entitled to equal protection under the law. But liberal judges have decided minorities have equal rights in America, but since the late 1800s, some minorities are more equal than others. There is no basis for such an interpretation in the Constitution, indeed the Constitution says the opposite, but they have gone ahead with it anyway. If you’re black or gay or Palestinian, you have lots of rights in front of a liberal judge. But if you are rich, self-employed, trying to become self-employed, white, and so on, you don’t need any protection of your rights say the liberal judges. Therefore you no longer have them.

Sandefur points out that most anti-business rules come from federal regulations, not Congress. The courts repeatedly tell commecial interests whose rights are trampled on to seek redress through the Congress. But that is not very effective when the rule in question was written by administrators, not legislators.

To be continued