By Mike Appleton, Guest Blogger
“We pledge ourselves to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation.
-The Southern Manifesto, Cong. Rec., 84th Cong. 2d Session, Vol. 102, part 4 (March 12, 1956)
‘This was an activist court that you saw today. Anytime the Supreme Court renders something constitutional that is clearly unconstitutional, that undermines the credibility of the Supreme Court. I do believe the court’s credibility was undermined severely today.”
-Michele Bachmann (R. Minn.), June 26 2012
Most people are familiar with the opinion in Brown v. Board of Education of Topeka, et al., 349 U.S. 483 (1954), in which a unanimous Supreme Court summarily outlawed public school segregation by tersely declaring, “Separate educational facilities are inherently unequal.” 349 U.S. at 495. But many people do not know that Brown involved a consolidation of cases from four states. The “et al.” in the style refers to decisions on similar facts in Delaware, South Carolina and Virginia. And the response of Virginia to the ruling in Brown provides an interesting comparison with the actions leading to the current government shutdown.
In 1951 the population of Prince Edward County, Virginia was approximately 15,000, more than half of whom were African-American. The county maintained two high schools to accommodate 386 black students and 346 white students. Robert R. Moton High School lacked adequate science facilities and offered a more restricted curriculum than the high school reserved for white students. It had no gym, showers or dressing rooms, no cafeteria and no restrooms for teachers. Students at Moton High were even required to ride in older school buses.
Suit was filed in federal district court challenging the Virginia constitutional and statutory provisions mandating segregated public schools. Although the trial court agreed that the school board had failed to provide a substantially equal education for African-American students, it declined to invalidate the Virginia laws, concluding that segregation was not based “upon prejudice, on caprice, nor upon any other measureless foundation,” but reflected “ways of life in Virginia” which “has for generations been a part of the mores of the people.” Davis v. County School Board of Prince Edward County, 103 F. Supp. 337, 339 (E.D. Va. 1952). Instead, the court ordered the school board to proceed with the completion of existing plans to upgrade the curriculum, physical plant and buses at Moton High School. When the plaintiffs took an appeal from the decision, the Democratic machine that had for many years controlled Virginia politics under the firm hand of Sen. Harry Byrd had little reason to believe that “ways of life” that had prevailed since the end of the Reconstruction era would soon be declared illegal.
When the Brown decision was announced, the reaction in Virginia was shock, disbelief and anger. Reflecting the prevailing attitudes, the Richmond News Leader railed against “the encroachment of the Federal government, through judicial legislation, upon the reserved powers of the States.” The Virginia legislature adopted a resolution of “interposition” asserting its right to “interpose” between unconstitutional federal mandates and local authorities under principles of state sovereignty. And Sen. Byrd organized a campaign of opposition that came to be known as “Massive Resistance.”
In August of 1954 a commission was appointed to formulate a plan to preserve segregated schools. Late in 1955, it presented its recommendations, including eliminating mandatory school attendance, empowering local school boards to assign students to schools and creating special tuition grants to enable white students to attend private schools. Enabling legislation was quickly adopted and “segregation academies” began forming around the state. Subsequent legislation went even further by prohibiting state funding of schools that chose to integrate.
In March of 1956, 19 senators and 77 house members from 11 southern states signed what is popularly known as “The Southern Manifesto,” in which they declared, “Even though we constitute a minority in the present Congress, we have full faith that a majority of the American people believe in the dual system of government which has enabled us to achieve our greatness and will in time demand that the reserved rights of the States and of the people be made secure against judicial usurpation.”
Throughout this period the Prince Edward County schools remained segregated, but when various court rulings invalidated Virginia’s various attempts to avoid integration, the school board took its final stand. It refused to authorize funds to operate any schools in the district, and all public schools in the county were simply closed, and remained closed from 1959 to 1964.
There are striking similarities between Sen. Byrd’s failed plan of Massive Resistance and Republican efforts to prevent implementation of the Affordable Care Act. There was widespread confidence among conservatives that the Supreme Court would declare the Act unconstitutional. When that did not occur, legislators such as Michele Bachmann, quoted above, attempted to deny the legitimacy of the Court’s ruling. Brent Bozell went further, denouncing Chief Justice Roberts as “a traitor to his own philosophy,” hearkening back to the days when southern roadsides were replete with billboards demanding the impeachment of Chief Justice Earl Warren.
The House of Representatives has taken over 40 votes to repeal the ACA, quixotic efforts pursued for reasons known only to John Boehner and his colleagues. And in accordance with the Virginia legislative model, the House has attempted to starve the ACA by eliminating it from funding bills. Following the failure of these efforts, Republicans have elected to pursue the path ultimately taken by the school board of Prince Edward County and have shut down the government.
Even the strategy followed by Republicans is largely a southern effort. Approximately 60% of the Tea Party Caucus is from the South. Nineteen of the 32 Republican members of the House who have been instrumental in orchestrating the shutdown are from southern states. It is hardly surprising therefore, that the current impasse is characterized by the time-honored southern belief in nullification theory as a proper antidote to disfavored decisions by a congressional majority.
In reflecting upon the experience of Virginia many years later, former Gov. Linwood Holton noted, “Massive resistance … served mostly to exacerbate emotions arrayed in a lost cause.” Republicans would do well to ponder the wisdom in that observation.
Gene H:
We have partial understanding? BS.
Your understanding is compartementalized, you cannot understand something in isolation from the whole. This is something you do with gusto.
Just because you pick some of this and some of that and a little bit of something else doesnt mean that others do that. There has to be a fundamental basis on which the rest is built. Otherwise nothing is connected and nothing makes sense.
DavidM:
Peter Leeson’s “Two Cheers for Capitalism
http://www.peterleeson.com/Two_Cheers_for_Capitalism.pdf
“So he is influential but the founders never specifically included Locke’s language.”
Not his property language, no.
However, you betray your superficial understanding of Locke. He himself valued the pursuit of happiness above property as he considered the pursuit of happiness the underpinning of individual and political liberty but that there was no universal formula for happiness as happiness is subjectively defined. Locke didn’t simply equate (as you so simplistically assert) happiness with property. Locke’s understanding of happiness was far more nuanced than that. If you’d actually read and understood An Essay Concerning Human Understanding, you’d know this.
You and David both present ongoing examples of the dangers of partial understanding.
Gene H wrote: “You and David both present ongoing examples of the dangers of partial understanding.”
Actually, I was thinking the same thing about you. I think I have probably 80% to 90% comprehension of many of the issues we discuss, but when I read what you write, it is like you are working with 30% to 40% comprehension. I realize, however, that both our blind spots (we all have them) are based upon different life experiences and different educational backgrounds. So what looks to me now like 30% to 40% would look much higher if my mind attached itself to all the premises which you hold dear. The goal then is to discover the false premises we hold, or the premises without proof that we hold, and be more open to looking at issues from a different perspective.
But, but, but Tony!
You’re not a binary thinker! It’s either all or nothin’, baby!
Bron,
“If Klien is only considering “capitalism” in the last 35 years, then no, that is not a fair comparison because what we have had for the last 100 years is a chimera of capitalism and socialism in different ratios depending on the political climate.”
Klein isn’t “comparing” capitalism of different eras. She produced a thesis that speaks directly to the neoliberal policies of free-trade and globalization and some of the manipulations and effects of said.
Read the book before you jump in with your critique.
Bron: He has been denying that point for years and so has Tony C.
Speaking for myself, I do not deny Locke’s influence, I don’t care about Locke’s influence, I find his logic naive and insufficiently nuanced, so it cannot be successfully applied to extremes of either the human condition or economic conditions. I feel the same about Rousseau, as we have discussed before.
The philosophy of the Enlightenment authors was an improvement over prior philosophy, but prone to unjustifiable absolutism and extremism; applying principles that are plausible in typical circumstances but falter when circumstances enter the realms at either end of the bell curve (metaphorically speaking).
I am better able than they, due to education and experience and ideas and inventions unavailable to them, to see what their simplistic systems need in terms of controls and caveats to extend their range to the extremes. (Just as future people will be better able than me, for the same reason.)
It is the same reason an engineer today can build a bridge or skyscraper or aircraft that no engineer in 1700 could have ever built. Even with the right idea, the math and ideas and logic were unavailable for them to realize such a dream.
I do not regard Locke (or Rousseau or any founding father or Enlightenment philosopher) as a frikkin’ infallible ORACLE; I regard them more like Newton or Einstein, people with ideas (from “okay” or “insightful” to “brilliant”) that can be very wrong in the extremes. I don’t believe in point masses, quantum physics prohibits them. Newton missed Relativity. Einstein’s proof of General Relativity had a fatal logical flaw that had to be corrected by somebody else (and even after that, Einstein continued to make the same mistake in his thinking multiple times.)
I don’t reject the idea that they had influence, I reject (when I detect them) the unjustified or unjustifiable assumptions, inferences and metaphorical leaps they make. Reverence and unquestioning belief in the superiority of somebody else’s thinking is just stupid. Ad hominem defense (e.g. “Locke said it! Locke!!“) is just as much a fallacy as ad hominem attack. Ideas stand or fall on their own.
I can take their good ideas and good logic, and leave behind the dumb ideas and false logic. I don’t care what Locke said if Locke is wrong, I don’t care what Adams said if Adams is wrong. Since Jefferson kept slaves I presume he found some way to personally justify his ownership of other people, and however he did that is just wrong in my view, I see no logic that justifies the slavery he engaged in while alive. Just because I agree with much of Jefferson’s logic does not obligate me to agree with all of his logic, he is clearly not infallible, and reverence for Jefferson or anybody else (belief and trust in the person instead of critically assessing their reasoning) is misplaced.
Gene H:
So he is influential but the founders never specifically included Locke’s language.
“Life, Liberty and the Pursuit of Happiness”, the philosophical underpinning of our Constitution was directly from Locke.
DavidM:
Andrei Shleifer’s paper “The Age of Milton Friedman,”
http://scholar.harvard.edu/files/shleifer/files/jel_2009_final.pdf
Bron,
If you’re going to act like a petulant child simply because the Constitution and the DOI don’t include Locke’s “property” language, you should really do so other than outright lying about what I’ve said in the past. I’ve never said Locke wasn’t influential. I said he was neither Founder nor Framer and those men were smart enough to have specifically included Locke’s language if that is what they had intended. But they didn’t. Those are simply the facts.
Then again, your reality seems to be malleable as driven by your level of greed and selfishness at any given moment so expecting veracity is perhaps expecting too much.
gbk:
If Klien is only considering “capitalism” in the last 35 years, then no, that is not a fair comparison because what we have had for the last 100 years is a chimera of capitalism and socialism in different ratios depending on the political climate.
David: Your figures about who gets what from taxes (if true) are misleading to people (maybe even you) that are not trained to see the larger picture of business and economic interaction.
Yes, the rich pay more than they get, but that is because you have conflated two things: Their personal income is typically based upon the economic activity of a large enterprise (or more than one) that relies heavily on enormous public resources, but their personal benefits from taxation are based solely upon their own little family.
For example, Walmart has over two million employees and eleven thousand stores. In a year, their income before taxes averages about $11,600 per employee; that is the average differential between what they pay the worker and the net value each worker produces (in a year).
But Walmart would not exist without the infrastructure paid for by taxes, past and future. Free roads and nearly-free courts (at less than cost) are used proportionately far more heavily by Walmart than by their employees, (their road use includes heavy use for getting products to stores, roads also supply both a wider employment pool and wider customer base). The police are used proportionately far more heavily by Walmart than by their employees. Walmart also benefits from public utilities and public transportation that run at near-cost (as do employees).
In addition, social security recipients and other aid recipients shop at Walmart. All of that tax-supported infrastructure provides an economic benefit to Walmart that is not provided to most employees of Walmart; your neighbor receiving social security does not directly benefit you but does directly benefit Walmart. A Walmart cashier or greeter will seldom sue anybody, or be sued. Most will never call the police, a single Walmart may call multiple times in a day.
Further in addition, Walmart benefits (as do citizens) from various inspection agencies for food and products and safety, so they do not have to spend as much protecting themselves against suit for selling toxic ingestibles or unsafe products. To the extent those agencies do their job and manufacturers know they can be sued for product liability, the products (food and otherwise) sold are much safer, so this economic benefit is hidden by the large number of lawsuits that just never happen. The same is true for the publicly funded law enforcement system, the existence of which deters most crime. Thus the economic benefit is hidden, in the form of many crimes that did not happen (but would have without the existence of law enforcement).
All of those service provide an economic benefit to Walmart, and one that is not paid for explicitly by Walmart. It is true that Walmart pays income taxes, around $3600 annually per employee, bringing their income after taxes to about $8000 per employee (annually).
So the services are not exactly “free,” but the price in income taxes does not reflect the actual economic benefit received by Walmart. (For example, Walmart does not receive social security, but does benefit from the program; it lowers their cost of labor and increases sales to social security recipients.)
What is that benefit? It is probably far in excess of what Walmart pays. That $3600 in income taxes paid by Walmart, per employee, translates into about $10 per day per employee. Now, if employees had to use toll roads to get back and forth from work (and Walmart had to use toll roads to move products to stores), if employees and Walmart had to provide their own police protection, if Walmart had to pay employees more to either cover pensions or meet the demands of employees funding their own retirement, it seems obvious that $10 per day, per employee, is quickly exhausted. And that is just talking about employment costs. They also would have to pay a “whatever the market will bear” profit premium on electricity, water, gas, and sanitation (which I will point out tend to be public services because they are natural monopolies, which in a free market would gouge Walmart, because Walmart cannot survive without them).
Their operation would shrink because customers and employees and products could not get there easily, as the price of transportation increases due to tolls the demand for transportation decreases; it stops being worth it to travel to Walmart if the trip costs you more in tolls than you can save.
The same is true for many other businesses. Exxon would be much smaller if it weren’t for publicly funded roads and highways (if they would exist at all). They provide an economic benefit that is crucial to Exxon sales.
Which brings us to individual wealthy people. Their income and wealth are usually derived from large companies that are benefiting disproportionately from public infrastructure, and that explains why they (as individuals) have to pay more in taxes to cover those hidden benefits that contribute to their out-sized incomes; and also explains why the dis-enfranchised gain more than they pay in direct benefits of taxes (i.e. their benefits are the hidden costs).
For example, a wealthy individual owner will collect ONE social security benefit, but that owner has benefited from thousands (or in the case of Walmart millions) of social security benefits being paid to their employees and lowering their employment costs.
Also, to the extent those benefits are social security and Medicare (which is a large portion of the disparity, when non-working retirees are collecting benefits), that is not a giveaway. The recipients earned those benefits by taking less pay during their working years, because retirement income and low-cost elderly medical insurance was assured and risk-free; and their employers benefited economically at the time by paying those employees much less than the employees would (if rational) have demanded. (And if the employees were not rational, but short-sighted, then the employers would be exploiting them and their short-sightedness by condemning them to elderly poverty).
The income taxes of the wealthy reflect that disparity; they have to pay more than they receive in tax benefits on paper because the bulk of their income is a result of hidden benefits, it lies in what their companies did NOT have to pay in higher salaries, benefits and pension contributions, private police protection, tolls on private roads (vs public highways), bridge and tunnel building, increased liability insurance and a multiplication of defending liability lawsuits, court costs and law and contract enforcement and “whatever the market will bear” profit premiums of many other infrastructure items that society provides either free or near cost (like Utilities and public transportation).
Most of these large companies would simply not exist if it weren’t for the public infrastructure, and they could never have afforded to build it. The proof of that is the dismal economic performance in countries that lack all such infrastructure (both in our own past and in the present in undeveloped countries), as compared to the generally superior economic performance of countries like Norway and Germany with MORE such infrastructure.
To the extent that individual owners benefit from it, paying their fair share of the cost of their hidden economic benefits that constitute most of their income is a more than equitable arrangement; they end up with far more than they would otherwise. The public infrastructure is their silent partner enabling their business.
The same is true for the common non-owner citizen, but to a much lesser extent than the wealthy owners of large businesses, due to the massive multiplying effect the public infrastructure delivers for them in ways it does not deliver at all for individual non-owner employees.
DavidM:
“You can try to pretend that the philosopher John Locke was not influential in the forming of this country, but educated and informed people know better.”
He has been denying that point for years and so has Tony C. I think they both know full well but dont want to admit it. Locke’s influence is a fly in their oatmeal of belief about our country.
“Familiar to you, perhaps. I don’t read it your way at all.”
Correctly? Well that much is evident. Let’s break it down . . .
“A right to property is founded in our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means” – That? Is natural law. But this? – “without violating the similar rights of other sensible beings.” Is the part you completely ignore. Your rights end where the rights of others begin.That was not only Jefferson’s position, it’s how the law interprets rights as well when the pols aren’t busy selling citizen’s out to the highest corporate bidder. You sez, “A man has that right to acquire it, as long as he is not stealing it from another person who also is trying to acquire property.” Or otherwise infringe upon their rights. Any of their other rights.
You sed, “Read in context, the quote you offer for Jefferson seems far more supportive of my view of a democratic republic than the democratic socialism you seem to think has been written into our Constitution.”
Another straw man you’ve got there. The quote I offered was about rights in general as they relate to the right to own property. The Constitution is silent as to economic form other than as property is recognized by English Common Law and minimally protected by the Constitution via the Takings Clause any economic form that doesn’t recognize private property (e.g. Communism) is unconstitutional. Since democratic socialism recognizes property rights (as Tony explained), it’s perfectly Constitutional. You sez, “What? This letter was about intellectual property rights, and your selected quote was craftily edited to mislead.” Nope. It was to the point. That you completely and utterly missed the point is your problem.
You sez, “Jefferson did not believe in feudalism and the concept of inheritance of property to children who were not using the land. He saw inheritance of property laws as a social construct rather than one of nature.” Yet he wasn’t against successions or other kinds of property. Just so, neither is patent law. As screwed up as patent law is, patents (and copyrights) do have finite existence and discrete definition and purpose. Which is what Jefferson was talking about.
You sez, “So here he is connecting thoughts where the ellipsis indicates a removal of words. Then he goes on in the rest of the letter which you did not quote to speak of how nature makes ideas something even less able to be owned than land. He is arguing against intellectual property rights like patents and copyrights as being natural rights.” No, he wasn’t. He was arguing against their durability and over expansive application (which the later there is a problem that has arisen in IP law as it has been distorted by corporate/industrial interests over time).
Jefferson was all for patents himself. He had several of them. He even mentions in that letter that he was a member of the patent board. Later in that same letter to McPherson, Jefferson says, “Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not. As a member of the patent board for several years, while the law authorized a board to grant or refuse patents, I saw with what slow progress a system of general rules could be matured. Some, however, were established by that board. One of these was, that a machine of which we were possessed, might be applied by every man to any use of which it is susceptible, and that this right ought not to be taken from him and given to a monopolist, because the first perhaps had occasion so to apply it. Thus a screw for crushing plaster might be employed for crushing corn-cobs. And a chain-pump for raising water might be used for raising wheat: this being merely a change of application. Another rule was that a change of material should not give title to a patent. As the making a ploughshare of cast rather than of wrought iron; a comb of iron instead of horn or of ivory, or the connecting buckets by a band of leather rather than of hemp or iron. A third was that a mere change of form should give no right to a patent, as a high-quartered shoe instead of a low one; a round hat instead of a three-square; or a square bucket instead of a round one. But for this rule, all the changes of fashion in dress would have been under the tax of patentees.” He understood the utility of patents and their narrow purpose and given that he had no problem with a standing right in real property devolving to heirs, it is far more reasonable to assume that he’d have had no problem with a standing right in any other kind of property – including IP – devolving as well so long as it remained a finite patent.
You sez, “By the way, I have never argued that the right to own property is derived from the Constitution. [. . .] The Constitution simply recognizes them and protects these rights.”
To a far lesser degree than say Freedom of Speech or Free Exercise as the Constitution does not enshrine property rights by specifically language as being anywhere near as absolute as you seem to think they are. And even those rights? Are not absolute as jurisprudence illustrates. The protections of the right to property is minimal in the Constitution, not maximal. Only due process and just compensation are expressly protected. Everything else? Is fair game for regulation.
Property rights are not sacred and all the evidence shows that the Founders and Framers considered them of secondary importance compared to the rights they chose to specifically protect in the Bill of Rights.
So, sorry! Your fantasy version of property rights is simply not how they exist at law and they have never existed in American jurisprudence in the Lockean manner you desire.
Gene H wrote: “But this? – “without violating the similar rights of other sensible beings.” Is the part you completely ignore. Your rights end where the rights of others begin.”
I am not ignoring it, I just think that when you read this, you have contract law in mind. I do not think that you view property the same way that Jefferson did. By making property rights a natural right, he makes it a fundamental right, which means in modern parlance, he saw it as a Constitutional issue deserving strict scrutiny review.
By the way, where do you get this axiom, “your rights end where the rights of others being”? Is this original with you? Or is there an author I could read that would expound upon this further?
I do not see rights as “ending” which is the primary reason I have problems with this proverb or whatever you call it. I see two or more individuals both having the natural right to acquiring property, and another principle at work which does not allow one individual to obfuscate the right of the other. The solution is not recognition that the one individual loses his rights when the other individual has a competing right. Rather, all rights are to be retained. This is what leads to the concept of selling property or compensating someone for something he owns when it is taken away from him.
DavidM wrote: “A man has that right to acquire it, as long as he is not stealing it from another person who also is trying to acquire property.”
Gene H wrote: “Or otherwise infringe upon their rights. Any of the their other rights.”
Agreed with the way this is stated. I disagree that a person’s right ends when coming into conflict with someone else’s right.
Gene H wrote: “The Constitution is silent as to economic form other than as property is recognized by English Common Law and minimally protected by the Constitution via the Takings Clause any economic form that doesn’t recognize private property (e.g. Communism) is unconstitutional. Since democratic socialism recognizes property rights (as Tony explained), it’s perfectly Constitutional.”
I am still considering Tony’s argument carefully, but it is a bit difficult to me because some time ago I presented a spectrum of private ownership on one end of a spectrum and communism on the other end of the spectrum. In between is government regulation. The more government regulation concerning property rights, the less you actually have true ownership. This, from perspective of me, Locke, John Adams, Thomas Jefferson and many others is a violation of a natural right. We would favor something further to the left of center of the spectrum that I mentioned. Bron apparently prefers something all the way to the left. You and Tony C prefer something further toward communism, but not all the way there.
It is curious to me that you say Communism is unconstitutional, but you also claim that the Constitution does not protect property rights. What is your basis for declaring Communism unconstitutional if not based upon the right an individual has to own property?
Gene H wrote: “Yet he wasn’t against successions or other kinds of property.”
Actually, yes he was against such successions for all types of property. He believed that what he called movable property and immovable property (land) did not have succession rights through natural law, but only as a social gift through what government desired to do.
Gene H wrote: “He understood the utility of patents and their narrow purpose and given that he had no problem with a standing right in real property devolving to heirs, it is far more reasonable to assume that he’d have had no problem with a standing right in any other kind of property – including IP – devolving as well so long as it remained a finite patent.”
You completely misunderstand Jefferson about real property. He did NOT believe in a standing right in real property devolving to heirs. There are other quotations that could be provided to illustrate this, but I don’t have the opportunity right now to look them up for you.
Jefferson was using this perspective of his to buttress his point that if this right of inheritance of personal property and real property was not based in natural law but in social law, then on what basis were intellectual property rights something to be considered a natural right? His opinion was that intellectual property rights had nothing to do with natural law but only social law. I hate to give a long quote from the letter, which I am sure you have read by now, but I don’t know how else to convey to you that you are misreading Jefferson in this regard. I referred to it in my last post but you missed it, so here it is, hopefully to bring into focus Jefferson’s argument.
(When reading the quote below, please note a distinction between natural law and social law. These have very different meanings. I think you gloss over these distinctions in your reading. Also, read it with the mindset that Jefferson does not believe in the natural right of people inheriting property from their ancestors. I can provide more support for this from other writings of his if I need to at another time. When he says below that Stable ownership is a gift of social law, he means that the inheritance of land is a gift of laws men create as opposed to something deduced from natural law theory. From this he questions why intellectual property could be considered exclusive and stable when real and personal property is not. After this he argues how nature itself argues against the idea of intellectual property rights being a natural right because of what happens to ideas once they are divulged. Note also that Jefferson never claimed intellectual property rights to the Declaration of Independence. He always considered that something given to mankind and in the public domain, something disassociated from him.)
Thomas Jefferson wrote:
==================
By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.
===============
Let me clarify that while Jefferson sat on a patent board and acknowledged intellectual property rights, he saw it as a product of social law, not natural law, something we inherited from England, which was in itself peculiar in this regard.
Gene H wrote: “the Constitution does not enshrine property rights by specifically language as being anywhere near as absolute as you seem to think they are… Property rights are not sacred and all the evidence shows that the Founders and Framers considered them of secondary importance compared to the rights they chose to specifically protect in the Bill of Rights.”
“All the evidence”? Clearly you overstate your case. When I pointed out a quote from one of our Framers, John Adams, how he called property ownership a “sacred right,” many here jumped upon me as if it were my statement. As is usual here, whenever I mention the idea of someone else, it suddenly is attacked as if it were my idea when all I did was quote who believed that way. You apparently here forget that a Founder and Framer called property rights sacred. Jefferson has been quoted as calling property ownership a natural right, and even required property ownership and two years of residency in order for someone to vote in elections. I don’t have a problem with you disagreeing with either of their views, but please don’t pretend that their views were aligned with yours. They are not. At least be man enough to say that the Founders and Framers were wrong, and that while they had some good ideas to get us started, we are now smarter than they were and have evolved past their archaic notions about property rights.
I am not too stupid to realize that there is some debate about this in common law. I just think you misrepresent the debate. Our court system has been sliding in your direction rather than my direction, but I do not think that is a good thing. The Constitution was written to protect us from the natural forces of government that would cause it to take away these individual liberties. It is just another way in which our Constitutional rights have been eroded. The animus on this website toward property ownership is very appalling, especially considering that this is considered a forum which is sympathetic toward Constitutional liberties. Apparently it is a forum concerned with Constitutional issues as long as they do not involve the Constitutional right of an individual to own property.
Following is a link to an article in the Fordham Urban Law Journal that argues strict scrutiny review is the proper type of review regarding issues involving the Taking Clause of the Constitution. It clearly treats property rights as a Constitutional issue involving a fundamental right of individuals to own property. In other words, property ownership is a Constitutional right similar to free speech. It reviews the court cases that have moved in your direction and those that would side more with my perspective.
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1982&context=ulj
David says “When a large portion of the population receive government benefits, the population becomes more lazy and will vote for more benefits, taking from the actual producers to supply what the non-producers want.”
My wife and I both came from modest backgrounds, neither of our parents could afford to send us to college. So after high school we joined the military, her the Army and myself the Marine Corps. We both spent significant time in Iraq and she was a drill sergeant so she spent much time training future soldiers. After the military we both decided to use our “government benefits” so that we could exit the military and start a family together. Those government benefits afforded both me and my wife the ability to transition from the military as well as build a life for ourselves after all the garbage and nonsense we had to put up with fighting wars which Im sure you supported. We have both since graduated from the UC system and my wife has built a successful career in business, while Im pursuing a career in the medical field. We are now “producers”, although for a while we were “non-producers” just “wanting” a better life for our family than was afforded us.
I know its difficult for you to understand, but we just needed a little bit of help so that we didn’t fall on our face in the process of going to school. But then people like yourself and Mitt Romney call us takers or non-producers because we used government benefits and wanted something more for our children than we had. That is all we really wanted.
john530 wrote: “I know its difficult for you to understand, but we just needed a little bit of help so that we didn’t fall on our face in the process of going to school.”
This is not at all difficult for me to understand. The problem is that people like me and many others never had that benefit. I was offered it when I first attended college. The military offered to pay all my schooling, make me an officer upon graduation, etc. It was very tempting, but I chose not to go that direction because of my desire to be self sufficient and free. As a result, I had to pinch pennies to survive going to school. I had to put off marriage and family, live under very trying circumstances, sometimes having to budget $7 a week to eat (which at that time would basically buy rice, potatoes, and maybe a small pack of less desirable chicken parts like livers & gizzards). My experience taught me that people can make it without government help, if we are willing to sacrifice and do what it takes to make a way.
So our life experiences are different in that I found a way without government assistance, and you found a way with it so you are beholden to government for that experience and want to give back. Our different life experiences play into how we interpret current government programs and the level at which we think they ought to operate. I support programs that offer a help up, but not programs that make people dependent upon government. This is why I have always advocated for a government program of aid that was cyclical, something that kicked in heavy every 3 years, and then backed off. A system that has debt forgiveness every 7 years.
In any case, you are not the kind of family I am thinking about when I speak about cutting down on government assistance. If government assistance gave you a leg up and enabled you to become a producer, I think that is great. I work with poor people all the time trying to help them overcome their problems and get ahead in life. There are many who appreciate the help up. A non-profit group I established had the motto, “Helping the homeless help themselves.” This came from sitting down with homeless people in library meetings and involving them in the organization, creating a “Homeless Network.” Everybody loves a help up, but everybody needs to be moved toward self sufficiency just like the path you took. Unfortunately, there also are many who are not looking for a help up, but they are looking for substitute parents, for providers or a nanny of some kind. I am helping someone right now who constantly is looking to sue people who she thinks has wronged her. She was in rehabilitation after back surgery and the nurse raised her bed too high and injured her. She is constantly writing lawyers to find someone to sue for her. She works the system adeptly, getting food stamps, social security for disability, makes the rounds at all the nonprofits and churches for food, clothing, etc., and applying for HUD subsidized housing. She is basically just setting herself up so she will never have to work again. Because a big impersonal government is involved with deep pockets, she will accomplish these goals easily. If she was beholden to private individuals for all of this, she would be shamed by the prospect that others had to take care of her for the rest of her life. When government does it, it is because this is something owed to her by society.
Much more that I could say, but this post is too long already. 🙂
DavidM,
I know what your points are, David.
I just don’t believe you; o ye of voluminous and sleight of tongue verbiage, mover of goalposts, clarifier of facts after the facts when needed, and general practitioner of obfuscation.
gbk wrote: “I just don’t believe you…”
[sigh] Then you simply demonstrate to me and perhaps some others here that your level of thinking is not based in logic but in emotional bigotry and prejudice.
There is no logic in thinking that I intended to deceive anyone by creating a link to a source that would discredit what I had said. If I had intended to deceive, I could easily came up with some sophistry like others participating here have done when caught in a mistake of logic. I’m thinking in particular about a CNN poll that led Gene H and Tony C to make the claim that 78% of Americans are pro choice abortionists. I could have argued that the question is still meaningful if anyone had at any time been impacted by government assistance. Instead, I honestly admitted that in looking for a link to give some actual data to my point, I mistakenly picked a study that asked a different question than other studies that I had read previously. So rather than cover that mistake up, I admitted to it and attempted to provide data based upon a survey question that might be more meaningful to someone with your particular objection. You find that dishonest. That is your choice. I disagree and would further say that your analysis is not based in logic.
DavidM,
“So no, I did not purposely misrepresent the data that I sourced. I misrepresented it by mistakenly choosing the wrong tense in my sentence structure.”
Is there an echo here?
gbk wrote: “Is there an echo here?”
The point was that my mistake was not done on purpose.
DavidM,
“I might take a look at it, [Naomi Klein’s ‘Shock Doctrine’] despite the fact that the reviews on Amazon are not that encouraging.”
So we should only read what Amazon reviewers consider “5”?
“Is it true that she only considers capitalism as it has existed within the last 35 years?”
Maybe you should read the book, eh?
“That does not sound like a fair comparison of free market principles.” (Said, without reading the book.)
Maybe not, but it does present a view to possibly consider when accounting for the last four decades of capital movements.
Also, did I mention that the DOI isn’t controlling law?
You’ve got that going for you.
Which is nice.
Oooo.
Gibberish.
How very entertaining.
“Hmmm. So you memorized the Constitution too, just like Ted Cruz has?”
But unlike Cruz, I understand it.
“Are you also going to try to pretend that the Constitution does not protect liberty? What about life? The truth is that the Constitution protects life, liberty and property.”
Ummm. No. It doesn’t. So why don’t you play lawyer some more and cite me specifically where the Constitution protects property rights.
I already showed you it doesn’t.
Good luck.
“You know this has nothing to do with feudalism. Your comments are pettifoggery.”
Actually my statements have everything to do with feudalism. Before the English Civil War, the only way you could own real property was by royal dispensation and you held those lands only until the King decided otherwise because all of the land was technically his.
“My concept is like that of Thomas Jefferson, that everyone has a right to own property.”
Funny how he and Madison choose not to protect that right specifically in the Constitution further than due process and just compensation.
“The ownership of property leads to liberty and happiness. It leads to people being able not to worry about where they will live or what tools they will use to work with. Property ownership leads to freedom, liberty, productivity, and happiness.”
Whatever blows your skirt. Still not a protected right except in the limited way described.
“Gene H wrote: “… sad and pathetic that he judges the value of other people by the contents of their wallet.”
What a gross misrepresentation of my values.”
Actually, I think it’s pretty accurate since you want a system where those with the money get more votes than everyone else.
“You seem to conflate property ownership with the contents of someone’s wallet.”
Nope. There is a one to one correlation there, sparky.
“The concept of private property is germane to liberty, not wealth.”
Actually the property and liberty are only tangentially related. That’s why the Framers only protected its removal by protecting due process. But property rights? Are directly related to wealth. Ask any economist. Even that dumbass von Mises knew that.
“We often associate wealth with property ownership, but that is just an artifact of the liberty and productivity that is increased in people when they are secure in owning and managing things. Thomas Jefferson and especially his hero, John Locke, wrote many times about this concept. Jefferson believed that it was natural law for man to own property, and that government is instituted to protect that right. It is like what Bastiat wrote, “Property does not exist because there are laws, but laws exist because there is property.” Jefferson even drafted a Constitution for Virginia that would give every person of full age 50 acres. I think this kind of plan would be a better unemployment plan than long term unemployment insurance.”
Libertarian nonsense. Jefferson also said . . .
“A right to property is founded in our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means without violating the similar rights of other sensible beings.” –Thomas Jefferson to Pierre Samuel Dupont de Nemours, 1816.
That’s his way of saying your rights in property end where others rights begin. That sounds vaguely familiar. Oh yeah! I said it. Just before the woefully inadequate biology student corrected me and my Juris Doctorate.
Jefferson also said . . .
“It is a moot question whether the origin of any kind of property is derived from nature at all… It is agreed by those who have seriously considered the subject that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society.” –Thomas Jefferson to Isaac McPherson, 1813
That’s his way of saying you have a right to own property. Which isn’t derived from the Constitution no matter what you think, but rather from English Common Law.
He also thought that property rights should be protected. And they are. Just not created by the Constitution, Oh He Who Plays At Lawyer.
And even then, they were not absolute.
The Constitution says your property may not be taken for public use from you without due process and without just compensation.
That is the sole limit to which property rights are protected by the Constitution. Every other form of limitation on property rights? Is regulation. Which Congress has the right to do.
“Gene H wrote: ‘I think that property rights should be protected. Within reason. Your right to property is like your other rights. It ends where the rights of others begin.’
That is YOUR esoteric understanding.”
No. That’s my professional understanding of property under the English Common Law system as it applies to American jurisprudence. I also took Civil Law if you’d like to discuss the finer points of that alternate system, but then as now, I suspect you’d just be usufruct. (That’s a pun, son! There’s a hole in yer glove! The fast ones go right over yer head!)
“It is not the understanding of our nation’s founding fathers. They spoke of Natural Rights given by our Creator, rights that exist without government.”
Actually, that’s precisely the understanding of the Founders and the Framers who also specifically created a secular form of government. And I’m not going to go into how poorly you understand natural law as it applies to legalism. That point has been adequately demonstrated in the past.
Gene H wrote: ‘understood property rights and they could have enshrined them as protected if they had found that wise. They didn’t. They opted to protect due process instead. That alone should tell you something about where property ranks amongst competing rights with the Founders.’
Gene, if there is a property dispute where two people both claim to own property, how does the government adjudicate between them except by due process? Due process was included as the method by which property is protected. It is idiotic for you to claim that the Constitution does not protect property of the individual.”
That’s some straw man you got there, but actually the right to property is still derived from English Common Law. How the Constitution protects property has already been described.
“And what if national security depended upon government utilizing someone’s property? Should there not be a mechanism for that to happen? The framers simply were being practical about it, while at the same time recognizing specifically the right to property which they believed was essential to civilized society, freedom, liberty, and happiness.”
Hence they protected it in the Constitution by prescribing due process and just compensation.
“Jefferson basically substituted the pursuit of happiness for property ownership because he saw them as so intertwined.”
Psychic now, are you? Jefferson was smart enough that if he’d meant property? He’d have said “the pursuit of happiness and the ownership of property” instead of “the pursuit of happiness” to avoid any misunderstanding. He was a man who communicated with precision.
“You seem to want us to go backwards to uncivilized societies like the Indians had. Among the indians, while they recognized private ownership of movable property, they did not recognize ownership of land.”
Another straw man. Outstanding. Followed by some gibberish unworthy of detailed address..
“Gene H wrote: ‘John Locke was neither Founder nor Framer, no matter how much you wish he had been.’
Thomas Jefferson carried around with him the pictures of three people: Bacon, Newton, and Locke. In a letter to Benjamin Rush, Jefferson called these three men the immortal heroes in the history of humankind. You can try to pretend that the philosopher John Locke was not influential in the forming of this country, but educated and informed people know better.”
I never said Locke wasn’t influential. In fact, I’ve said precisely that numerous times. And nearly just as many times, usually in dealing with Bron’s Randian fantasy understanding of law and society, I’ve had to say that Locke was neither Founder nor Framer.
Because he wasn’t . . . any more than Issac Newton was.
And the words the Framers choose and the Founders ratified are “life, liberty and the pursuit of happiness.”
Unless of course you have the extremely rare and extremely fraudulent copy where John Locke, Issac Newton, Ayn Rand and Daffy Duck’s signature follows John Hancock’s.
Oops. Those pesky lil’ facts keep gettin’ in the way of your unmitigated greed. Damn the luck.
You’ll have to do better than that.
Gene H quoted Jefferson: ““A right to property is founded in our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means without violating the similar rights of other sensible beings.” –Thomas Jefferson to Pierre Samuel Dupont de Nemours, 1816.
Gene H wrote:
“That’s his way of saying your rights in property end where others rights begin. That sounds vaguely familiar.”
Familiar to you, perhaps. I don’t read it your way at all. Jefferson is simply saying that there is a natural right in man, a desire of nature, to own property. A man has that right to acquire it, as long as he is not stealing it from another person who also is trying to acquire property.
If you keep reading a little further in his letter to DuPont de Nemours (whose son, incidentally, started the successful chemical company we all know as DuPont), Jefferson writes:
“that no one has a right to obstruct another, exercising his faculties innocently for the relief of sensibilities made a part of his nature; that justice is the fundamental law of society; that the majority, oppressing an individual, is guilty of a crime, abuses its strength, and by acting on the law of the strongest breaks up the foundations of society; that action by the citizens in person, in affairs within their reach and competence, and in all others by representatives, chosen immediately, and removable by themselves, constitutes the essence of a republic; that all governments are more or less republican in proportion as this principle enters more or less into their composition; and that a government by representation is capable of extension over a greater surface of country than one of any other form. These, my friend, are the essentials in which you and I agree; however, in our zeal for their maintenance, we may be perplexed and divaricate, as to the structure of society most likely to secure them.”
Read in context, the quote you offer for Jefferson seems far more supportive of my view of a democratic republic than the democratic socialism you seem to think has been written into our Constitution.
Gene H quoted Jefferson:
“It is a moot question whether the origin of any kind of property is derived from nature at all… It is agreed by those who have seriously considered the subject that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society.” –Thomas Jefferson to Isaac McPherson, 1813
Gene H wrote:
That’s his way of saying you have a right to own property. Which isn’t derived from the Constitution no matter what you think, but rather from English Common Law.
What? This letter was about intellectual property rights, and your selected quote was craftily edited to mislead. Jefferson did not believe in feudalism and the concept of inheritance of property to children who were not using the land. He saw inheritance of property laws as a social construct rather than one of nature. So here he is connecting thoughts where the ellipsis indicates a removal of words. Then he goes on in the rest of the letter which you did not quote to speak of how nature makes ideas something even less able to be owned than land. He is arguing against intellectual property rights like patents and copyrights as being natural rights.
By the way, I have never argued that the right to own property is derived from the Constitution. It is derived from nature. It is natural law, just like freedom of speech, liberty, religion, etc. The Constitution simply recognizes them and protects these rights.
DavidM,
” Property ownership leads to freedom, liberty, productivity, and happiness.”
Don’t forget “more” voting weight in your plan.
“. . . if there is a property dispute where two people both claim to own property, how does the government adjudicate between them except by due process?”
So, which is greater; property rights or due process? I’m confused now as you seem to be arguing Gene’s perspective with this statement.
“And what if national security depended upon government utilizing someone’s property?”
ibid.
“You seem to want us to go backwards to uncivilized societies like the Indians had. Among the indians, while they recognized private ownership of movable property, they did not recognize ownership of land.”
Are you sure “the indians” didn’t recognize ownership of land?
“Today when someone rents a home, they are always at odds with a landlord . . .”
It’s amazing that I didn’t know that I should have always been at odds with all the landlords I used to rent from.
“Yes, I see your point. Some people may drop off of benefits.”
David, my point was that you purposely misrepresented the data you sourced, and now you offer more.
“People can debate about what ought to go into calculating certain statistics . . .”
I’m not arguing, “what ought to go into calculating certain statistics,” I’m pointing out that you purposefully misrepresented — according to your source — the information you presented with your choice of words.
gbk wrote: “Don’t forget “more” voting weight in your plan.”
LOL. Well, Jefferson’s Constitution for Virginia did not allow people to vote at all unless they owned 1/4 acre in the town or 25 acres in the country and had paid scot and lot to the government for at least two years.
gbk wrote: “So, which is greater; property rights or due process? I’m confused now as you seem to be arguing Gene’s perspective with this statement.”
The property rights are in focus here, but due process is a necessity in government protection of that right to property. You don’t want the government just taking whatever it wants without respect toward the land owner. So it there must be a due process of law that allows government to say, “no, you don’t own this because…”
gbk wrote: “Are you sure “the indians” didn’t recognize ownership of land?”
I was not there, but based upon the writings of people who were there, for the most part, they did not have this concept. We introduced the concept of land ownership to them, and specifically attempted to recognize it in an attempt to buy land from them.
gbk wrote: “David, my point was that you purposely misrepresented the data you sourced, and now you offer more.”
This is not some careful thesis or book I’m writing here. I go to make a point and attempt to communicate it the best way I can. The way this gaffe happened is that I was going to say that when more than half the country … and then decided I should look up the actual statistic for it. Finding that link, the numbers were higher than I expected, but I thought it was perhaps from the Obama changes. I edited my sentence to use those statistics, and as you point out, I used a continuous present tense instead of a past tense. It was not intentional. Why would I reference a source that would discredit what I was saying? The statistics I used were a little high, but my point still stands about the concept. When you have the majority getting benefit from government, many better than me have predicted that democracy will lead to the ruin of the government because people will vote for what they want without regard to whether the economics can sustain it. It is like asking your children to vote on whether their allowance should be $100 a week. They aren’t going to say, “wait, I don’t think you can afford that.” They are going to vote yes.
So no, I did not purposely misrepresent the data that I sourced. I misrepresented it by mistakenly choosing the wrong tense in my sentence structure. You don’t seem to want to acknowledge that such has no bearing about the concept. Whether I go back and reference those statistics as being about how many have at one time received benefits, or if I quote other statistics about how many are presently receiving benefits, the point is the same. When a large portion of the population receive government benefits, the population becomes more lazy and will vote for more benefits, taking from the actual producers to supply what the non-producers want. They will vote to have others pay for their cell phones, televisions, drugs, insurance, retirement, food, housing, and other wants and needs.