Lies the government told you (6 page)

The buck did not stop at
Blaisdell
. Today, in the wake of the Chrysler bailout, we see the current establishment’s utter carelessness when it comes to the contract rights of Chrysler’s bondholders. The bondholders are secured creditors, which means by law they hold a higher ranking than shareholders or unsecured creditors in a reorganization or bankruptcy. Outrageously, though, the government— which has inserted itself into this private bankruptcy by virtue of its massive loans to Chrysler—is completely ignoring this rule and is instead awarding majority ownership to the United Auto Workers, and only a small part of ownership to bondholders.

When the bondholders tried to get a larger stake in Chrysler, President Obama publicly referred to them as “vultures,” and they eventually backed down.
²⁵
Since when are you a “vulture” just because you ask that the contract you agreed to be enforced? And since when does the President interject himself into the fray when a lender wants a loan repaid? When contracts don’t mean what they say; that’s when.

While it may be reasonable for the court to step in when a person was deceived or actually forced into a contract, it is quite another circumstance when the Court enters into a perfectly fair agreement between the parties. This often paternalistic nature of the Court does more than take away our personal liberties; it also destroys the value of the contract itself. If the Court can actually dismiss the terms of a contract, allowing a party to breach, what is the point of making an agreement in the first place? If the use of contracts is put into question, a cloak of doubt is cast on our whole way of doing business in America.

Aren’t You Entitled to the Fruits of Your Labor?

You would think that if you grew something in your own backyard, for your own personal use, the government would not meddle. Guess again! In 1940, the federal government fined Roscoe Filburn, an Ohio farmer, for producing an excess amount of wheat on his farm. The government’s act of limiting the amount of wheat Filburn grew and then actually punishing him for it, seems like a gross restriction on individual liberty in itself. But the situation gets downright ridiculous when you consider that Filburn was not selling this wheat, not bartering with it, not leaving the State with it; poor Filburn was just growing the wheat for himself and his family to use. Now imagine how outraged you would be if the government regulated the parsley you grew in your backyard garden, or the summer tomatoes you planted. You get the picture. This ruling is simply a violation of the natural right to the fruits of one’s lawful labors.

The Supreme Court used and abused the power of the Commerce Clause against Filburn in this case. The Commerce Clause gives the federal government the right to regulate commerce with foreign nations, among the states, and with the Native American tribes. While the Court’s interpretation of “among the states” has varied over the years, one of the main reasons for the clause was to prevent excessive competition between the states. The original meaning of the word
regulate
was “to keep
regular
.” Its sole purpose was to prevent states from creating state tariffs to be used to the detriment of other states.

So, basically, the Commerce Clause was intended to empower Congress to keep interstate commerce regular, that is, devoid of tariffs imposed on the movement of goods over interstate borders by the states. Such tariffs had severely hampered commerce under the Articles of Confederation and were a major impetus for drafting the U.S. Constitution. Some of the broader interpretations of the Clause have included intrastate commerce that could have an effect on interstate commerce. Yet, who would have guessed that the government could regulate something that goes from your backyard to your kitchen table and is never actually bought or sold or moved more than a few feet?

The government’s argument was that through the cumulative effect of Filburn’s use of his own wheat, and others’ potentially similar use of theirs, there
might
or
could
be an effect on interstate commerce, and that these activities were therefore subject to federal regulation. This means that
if
lots of people started to overproduce wheat in their backyards and consume it, it could affect the amount of bread or cereal that is being bought (or not bought) in stores. But, that is a big
if
. Also, the act of growing crops to provide for your own family has been going on much longer than the government itself. This harebrained reasoning employed by the government and accepted by the Supreme Court, paired with the destruction of the personal property rights conferred through Natural Law, make
Wickard v. Filburn
one of the more truly absurd and highly dangerous federal power trips.

Commerce Clause: No Rationality Required

Not only has the government regulated the remedies for defaulting on loans, not only has it regulated the amount of wheat grown in our backyards, it has also regulated the number of hours per day bakers can spend turning that wheat into bread. An 1897 New York State law pertaining to this, stated: “No employee shall be required or permitted to work in a biscuit, cake, or bread bakery or confectionary establishment” for more than ten hours per day. New York tried to rationalize the law by stating that the measure was meant to protect the health, safety, welfare, or morality of bakers in New York.
²⁶
Huh? Since when can the government tell people that they cannot voluntarily work more than ten hours per day? And why would bakers need to be protected from these long hours; is it particularly dangerous work?

When the Supreme Court heard this case, it looked at whether there was a legitimate need for the State of New York to regulate workers’ hours because of the nature of baking. The Court said that given the nature of certain types of work, like mining or working with coal, it may be appropriate for the state to regulate, yet there was no genuine health issue present in baking. Consequently, the Supreme Court decided in
Lochner v. New York
, that New York had no right to make such a law. The opinion states:

It is a question of which of two powers or rights shall prevail—the power of the State to legislate or the right of the individual to liberty of person and freedom to contract . . . The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.

This poorly reasoned opinion did the right thing (uphold freedom of contract) for the wrong reason (the state’s claim of right to interfere was not strong enough). The state is without
any
right to interfere in freely negotiated for contracts. But sadly,
Lochner
is no longer the law. Since the days of
Lochner
, the defense of natural rights has fallen into disrepute with courts. If individuals know that the government can step in and nullify the contracts they enter into, what purpose do they serve? The post-
Lochner
era challenges both the sanctity and meaning of contracts themselves, taking another one of our fundamental rights with it.

We Are Free to Work as Much
(or as Little) as We Want

Flash forward. What do cases like
Wickard v. Filburn, Home Building & Loan Association v. Blaisdell
, or
Lochner v. New York
mean today? While there may not be too many cases involving backyard wheat production in recent memory, the right to keep the fruit of our own labor is still in peril. Between the current economic downturn and the Big Government crowd still in power, it would not seem unlikely for the government to put constraints on our freedom to work. A
New York Times
article suggests that the federal government should force workers to take extended vacations, days off, or restrict their weekly hours, in order to reduce the number of layoffs.
²⁷
The suggestion is to adopt a policy similar to European countries like France, where the law dictates the number of hours workers are allowed to clock in per week, thereby reducing the amount of overtime individuals are able to receive and, essentially, the amount of money they are able to make. In
Blaisdell
, the Supreme Court opened the door to exactly this type of government assault on our right to enter into and enforce binding private contracts.

While longer vacations never fail to sound appealing, mandates like this from the government are patently un-American. We have always been a self-made, individualistic people who pick ourselves up by the bootstraps and work as hard, and for as many hours as needed to reach our intended goals. And the bottom line is, this is a democracy whose government is by law restrained by a Constitution that guarantees enforcement of the Natural Law, and it should be our choice to work as much or as little as we please.

One of the reasons why people come to America is that there are fewer speed bumps to the top of the ladder in comparison with other countries. People from a variety of backgrounds can toil and sweat their way up the ladder here. If sanctions were put on the number of hours we were allowed to work, there would be fewer avenues open to reach the top, and only certain people would be able to make it (likely those with the best educations, most social and family connections, the most money, and in favor with the government). This is not what America is about, and this is certainly not freedom in a broad sense.

All of the natural rights discussed in this chapter deal with subject matter that is exceedingly personal. The private decisions we make about where we want to raise our families, the agreements we make with other parties, and the amount of work we decide to do, are all choices that have an effect on our personal health, wealth, and happiness. As individuals, we make decisions that are varied. What is good for one may simply not be good for another. It is time for the government finally to recognize the American people as individuals and hand us back our natural rights.

Lie #3
“Judges Are Like Umpires”
¹

President Barack Obama, in an interview conducted less than two months into his presidency, was asked about the toughest decisions he had to make as president. He responded by stating that “[b]y the time an issue reaches my desk, it’s a hard issue. If it was an easy issue, somebody else would have solved it and it wouldn’t have reached me.”
²
The same goes for Supreme Court justices, and to a lesser extent, appellate judges. The Supreme Court is mainly faced with the hard cases in which the law is unclear, or lower federal courts or state supreme courts have ruled differently or inconsistently on federal issues. In deciding these cases, the Supreme Court justices must essentially state what they believe the law to be. By doing so, the majority of the Court, in clarifying the meaning of the law, makes policy.
³

One of the main concerns that politicians in the legislative and executive branches of government have with the federal judiciary is that judges will engage in “judicial activism.” According to
Black’s Law Dictionary
, a source universally accepted in the American and British legal communities,
judicial activism
is “[a] philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”
⁴
Judges espousing this philosophy tend to “find constitutional violations and are willing to ignore precedent.”
⁵
This definition implies that judicial activists are biased judges who intentionally disregard the true meaning of the law to further their own policy agendas, and essentially legislate from the bench. Given these characteristics, judicial activists have no place on any court, let alone the United States Supreme Court.

Recent Supreme
Court confirmation processes have revolved around the concept of judicial activism. President George W. Bush made it perfectly clear that he would nominate judges who would “exercise not the will of men, but the judgment of law.”
⁶
When nominating Judge John G. Roberts to be Chief Justice of the United States Supreme Court, President Bush vowed that Roberts would “strictly apply the Constitution and laws, not legislate from the bench.”
⁷
At his Senate confirmation hearing on September 12th 2005, then-Judge Roberts told the Senators, “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”
⁸

President Bush later stated, when nominating my Princeton classmate, Judge Samuel A. Alito, that then-Judge Alito “understands that judges are to interpret the laws, not to impose their preferences or priorities on the people.”
⁹
Senator Jeff Sessions, a Republican from Alabama, who interviewed Roberts prior to voting to confirm him, criticized “[a]ctivist rulings not based on statutes or the Constitution.”
¹⁰
Senator Tom Coburn, a Republican from Oklahoma, echoed Sessions’s complaint, stating that “[d]ecades of judicial activism have created . . . huge rifts in the social fabric of our country.”
¹¹

During the debate over the nomination of Supreme Court Justice Sonia Sotomayor, conservative senators and commentators were troubled with comments Judge Sotomayor repeatedly made in speeches outside of the courtroom. Senator Sessions voted against Sotomayor’s confirmation, fearing that she lacks “the deep-rooted convictions necessary to resist the siren of judicial activism.”
¹²
Senator John McCain, a Republican from Arizona, also opposed Sotomayor’s confirmation, stating that while he had “great respect” for her, she had a “long record of judicial activism.”
¹³

The senators’ reservations about confirming Sotomayor are mainly derived from a lecture she gave at the University of California-Berkeley, in 2001. Her lecture was entitled “A Latina Judge’s Voice.” In the speech, Sotomayor focused on her heritage and her gender, and concluded that her background and personal experiences influence her judging. Toward the end of the speech, Sotomayor stated that she “would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
¹⁴
Sotomayor reiterated this sentiment in later speeches. Furthermore, at a conference at Duke University in 2005, Sotomayor stated that “the court of appeals [the court on which she was sitting at the time] is where policy is made.”
¹⁵
Taking these out-of-court statements at face value, it may appear that Sotomayor feels that her personal experiences and biases will directly influence her decisions, that she seeks to develop policy from the bench, and that she harbors legal views based on nationality or race.