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.
“If this were true, humanity truly would be completely helpless and lost without government.”
The fact that since the dawn of recorded history, no sophisticated society of any substantive size has been able to exist without some form of government seems to confirm that as true. Government didn’t just magically pop into existence. Government is a machine. It was designed and built for purpose. That purpose – in a properly functioning government – is tending to the common needs of citizens and civilization and creating social order/stability. It is, like most inventions, a child of necessity. Anarchistic society is just as big a fantasy as utopian society. I know this because history and human nature tell me so. Without government, there would be chaos. Since it is a necessity, for optimal chances of survival and durability, it must place the needs of the many above the desires and wants of the few or the one because this creates stability where inequity (such as oligarchical and other tyrannical methods engender) breeds instability.
Gene H – Government is good and necessary for civilized society Gene, but do you really think that without government we would all earn less than a homeless beggar in New York City? Please tell me that you consider this hyperbole and humor.
It kind of also reminds me of a time my oldest daughter called from college and said all depressed, “mom, I wish I wasn’t white.” We were shocked.
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i don’t know why. interracial dating has been acceptable on college campuses outside of mississippi for some time.
Pete – not Mississippi but Gainesville, Florida (University of Florida).
Dating wasn’t the issue. Diversity quotas were. She felt at a disadvantage being white. It happens. The fact that she was a beautiful blond with a bubbly personality made it a bit worse for her.
Bron: You could probably make a good case that toll roads and private schools would be cheaper.
Only by lying or claiming as plausible things that exist only in your imagination. Roads are natural monopolies and property in the way is a natural monopoly if it is the straight line between point X and point Y. Which means building a private straight road (or even nearly straight) is virtually impossible if property rights are absolute, and insanely expensive even if it can be done. Which makes the tolls sky high. Plus, for roads or schools, there is always the profit motive to gouge people with.
Toll roads cannot be “at cost” and private schools cannot beat “at cost,” before there were public schools and mandatory attendance the poor just didn’t go to school, they went to work. And wasted their potential. Nowadays there aren’t enough manual labor jobs for those people to do, school is essential. Which most people know, and as a result the private schools have no reason to compete on price when they can collude to fix prices sky high — which is all perfectly legal in your zero-regulation fantasy land.
If you want a real world example, look at OPEC. Competition is just stupid when price fixing collusion is an option.
Bron: that 90% figure is far in excess of what government does for the average citizen.
On the contrary. Compare the average income here to the average income in an area without infrastructure or with a failed government. Say, Somalia, or Northern Pakistan, or the villages of Iraq, or many other places.
The CIA World Factbook has the USA at #15 with $50K in average personal income. They list 194 countries; the first under $5K (10% of us) is #101, Jordan, with $4800 average. Pakistan is #154 with $1300. Somalia is #163 with $600. Ethiopia is #183 with $400.
I was being generous with attributing 10% to your effort. Without a government and infrastructure we would all earn less than a homeless beggar with a cup on the streets of New York City.
Tony C wrote: “Without a government and infrastructure we would all earn less than a homeless beggar with a cup on the streets of New York City.”
LOL ! Surely you don’t believe this. If this were true, humanity truly would be completely helpless and lost without government.
DavidM: I do not believe in the falsehood that there are a significant percentage of people that will only work if they are coerced or facing deprivation, starvation or homeless.
In countries that provide a safety net for citizens including food, shelter, education and health care, regardless of their ability to work, the unemployment rate can be well beneath the unemployment rate in the USA. They prove the falsehood of that premise; even if survival is taken care of, people will still work to get ahead.
Logic also proves the falsehood of that premise; if mere survival was enough for most people (or even a large percentage) than we would see a lot more people do the minimum work they have to do to survive. But we don’t see that in this country, we see people work 8 hours a day and making as much as they can because they like money and want to get ahead. They want things beyond mere survival and spartan living. I could literally live in a tent and never work another day in my life, I have enough money to feed myself indefinitely, and I can listen to my hand-cranked emergency radio and endlessly entertain myself with pencil and paper in the bargain. But we all work more than the needs of survival because we want more than survival.
Thus providing the means of survival to all may create a few percent of people for whom survival and doing an odd job for cash is enough to meet their life goals. For the other 97% of us, it would free us from coercion and desperation and the lost potential of having the bad luck to be born to poverty. At least some of the motivations to commit crime will vanish; the savings from that will offset the 3% of free riders. What will not vanish is the motivation to work and make money and get ahead in life. That will still exist; people want more than survival, they want a family, a home, to make a positive difference in the world and in other people’s lives. People don’t want to just keep breathing until they stop breathing, they want to accomplish things and feel pride, to have experiences, see the world, to have fun and romance. They want to go to the game, both literally and metaphorically.
Tony C wrote: “People don’t want to just keep breathing until they stop breathing, they want to accomplish things and feel pride, to have experiences, see the world, to have fun and romance. They want to go to the game, both literally and metaphorically.”
I agree this is human nature.
You may be overlooking something, however, in that the entitlements are not always easy to get. So it becomes work of a sort to get the entitlements, and then when they get them, they don’t want to lose them. I know many people that get situated with Social Security after years of hard work to get it, and then they start working a little until they reach that 9 month mark, and they have to quit for awhile. They basically have to play the game they know.
I was driving to work this morning and saw a boat being towed, heading out toward the fishing grounds. I wished a little that I could be doing the same thing. Then I noticed he had a handicap tag hanging from his mirror. I couldn’t help but think that guy probably is on disability and doesn’t have the pressures of work that I have. Who really has a better life?
It kind of also reminds me of a time my oldest daughter called from college and said all depressed, “mom, I wish I wasn’t white.” We were shocked.
Sometimes we all wonder about life and what it would be like if things were different.
Gene: Yeah, I mean that is quite impressive. I presume he has the ability to levitate to avoid such roads and walkways. I also guess he always uses FedEx now at $10 a letter, rather than the postal service. And before FedEx he walked (or flew) all his bills to their destination.
DavidM says: Do you even acknowledge that government can become oppressive by high taxation? Is that even a possibility in your mind?
Of course I acknowledge that, I believe the current government is corrupt and self-serving and in the pocket of corporations. Even if a government is not corrupt, there are forms of taxation (more so on individuals, not businesses) that are so high as to eliminate motivation to work to improve one’s life. I don’t think we are anywhere near that, however, the 55% no-loophole taxation of Norway (on high income individuals) has not kept people from becoming multi-millionaires, or impacted their rate of entrepreneurship (which is higher than ours).
DavidM says: Our government actually has a 100% taxation for some people who inherit from their grandparents. Is that oppressive at all in your way of thinking?
You will have to show me that one. If it is true, I consider 100% of anything oppressive (in personal taxation, not business taxation).
DavidM says: Do you recognize that communist countries trend toward capitalism because of the poverty those systems create?
I recognize that link (and have detailed it to some extent in previous threads on this blog, years ago) but only for actual COMMUNISM, not for SOCIALISM.
DavidM: Do you recognize that socialism is a mixed form of communism and capitalism?
Not at all, and not in the least. I have on this thread detailed in extent what I was calling “modern socialism.” I do not believe in communism, I think it is a flawed system that attempts to change human nature which I think is impossible, short of some futuristic genetic engineering.
Socialism is NOT a mix of communism and anything else, it is as impossible to be a “little bit communist” as it is to be “a little bit pregnant.” You are either communist or you are not. Any similarity you see between modern Socialism and Communism is just that, a similarity in appearance, not a mixture of the two philosophies. One is not a stepping stone to the other, just as Capitalism and Communism both talk about the production of goods, but Capitalism is not a stepping stone to Communism, or vice versa.
Communism is a different animal. Socialism and regulated Capitalism can mix, successfully, and have, because both of them are grounded in fundamental human nature, in which both altruism and selfishness can co-exist in every mind. But I believe the mix is an absolute necessity, I do not think any system that is too lopsided toward one end or the other works. Free Markets fail and produce collapse or revolutions. Communism fails and produces collapse or revolutions.
In both cases, the collapse or revolution is driven by people whose psyches have been violated, their system of government does not comport with human nature, to such an extent that rebellion catches fire.
Both of them (and Anarchy) are based upon false assumptions about the human mind and character. The only successful systems of government must meet the average need to perceive they are being treated fairly, and they are treating other people fairly, but can still improve their life and circumstances and that of their kids and loved ones through work and effort. That will never be Communism, and it will never be the brutality of zero-regulation (e.g. “contract-only”) Capitalism.
I think the system that does that best is one that does not subject people to oppression, either directly or indirectly through neglect (in the guise of “if you just work ten times harder than the rich kid, and are ten times smarter, if you are in the 0.1% of intellect then you can escape poverty!”).
Tony C wrote: “Socialism and regulated Capitalism can mix, successfully, and have, because both of them are grounded in fundamental human nature, in which both altruism and selfishness can co-exist in every mind.”
If you have the time, Tony, could you delineate for me Socialism from regulated Capitalism? You speak of how they can mix, but I don’t understand the difference from your perspective between Socialism and regulated Capitalism.
Under your system of Socialism, who decides what companies startup? Do individuals make these decisions for themselves, or does the government do the planning and decides which companies are going to be allowed and which are not? Is it only the government that can invest in companies?
Tony C wrote: “Free Markets fail and produce collapse or revolutions.”
Can you give me a few historical examples of what you are thinking about when you make this statement?
“The problem is that people like me and many others never had that benefit.”
I don’t really consider it a benefit since I worked everyday, 12 hours a day for nearly two years in a war zone in order to ensure that I was able to attend college. That is not really the point that I wanted to make though. The point is that there are many like myself who you categorize as “takers” who work hard, just as hard as you did. Just because you believe the illusion that you did it all on your own, with no help, doesn’t mean that the rest of us lack your work ethic or self discipline. Get over yourself.
As far as helping others, Im sure you have just the right recipe to help all those lazy, no good, liars that happen to be less fortunate or lack the intelligence that you apparently have. The way you look down your nose at them is rather disgusting. It has been my experience that the vast majority of people that I know just want to work and earn a living to support their family. Are there people who abuse the system, yes. Does that mean that your anecdotes of abuse are a fair representation of people who need assistance, no. If that is your reasoning for doing away with these programs, then you should also agree with doing away with the military, because I sure witnessed a lot of waste in that institution as well.
John530 wrote: “The point is that there are many like myself who you categorize as “takers” who work hard, just as hard as you did. Just because you believe the illusion that you did it all on your own, with no help, doesn’t mean that the rest of us lack your work ethic or self discipline. Get over yourself.”
You are turning this upside down. First, when did I ever characterize you as a taker? You yourself do not categorize yourself that way, so why would I ever do that? As far as I’m concerned, if you say you earned it, then you earned it. Good for you. You are not a taker.
My perspective is not upon myself, but upon the positive Republican message that is beneficial to the poor, a message of self reliance, a message of optimism, that if they work hard, they can live the American dream that they have for themselves. Lifting people out of sadness is a big part of helping people who are poor. There are an uncountable number of men homeless on the street depressed because their wife divorced them. I even met a PhD college professor who was homeless because of this. So we teach self reliance, that they can count on themselves and not others to see them through.
John530 wrote: “If that is your reasoning for doing away with these programs, then you should also agree with doing away with the military, because I sure witnessed a lot of waste in that institution as well.”
Yes, that is a reason I have for cutting back on military funding as well. It seems like most everything the government gets involved with is prone to waste because rather than solicit revenue voluntarily from people and then demonstrate their proper stewardship of that money, they take it by force, by organized plunder if you will, and then waste it because they never had to earn it in the first place.
You misunderstand me if you think I want to do away with all government programs. I don’t. I believe social programs should be done at the local level and managed properly. I believe that individuals helping their neighbor is the most effective way of helping others, and federal entitlement programs are the least effective way.
DavidM:
If you leave out social welfare programs, the rest amounts to about 25-30%.
Roads and schools are probably less than 10%.
So I am with you, that 90% figure is far in excess of what government does for the average citizen.
You could probably make a good case that toll roads and private schools would be cheaper.
Tony,
Don’t you understand that David has never used a public road, a utility build with public dollars or used a public service?
He’s one of those totally self-sufficient Ubermench.
David,
“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.”
You have no idea what I have in mind. If you did, you’d be a lawyer. However, not all natural rights are protected Constitutional rights nor are the ones that are equally protected or too like degrees. As for what I was thinking, I was thinking of the analysis of Steven Semeraro of the Thomas Jefferson School of Law in his paper “Sweet Land of Property?: The History, Symbols, Rhetoric, and Theory Behind the Ordering of the Rights to Liberty and Property in the Constitutional Lexicon” (.pdf available here who found that the attempts to frame property rights as deserving of strict scrutiny fundamentally undercuts the purposes of legislative authority pursuant to the Constitution and for dealing with unknown situations.
“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?”
Actually I get that from understanding the law in proper context, but the phrase itself is a paraphrase of Justice Oliver Wendell Holmes who said (maybe apocryphal as it was to a reporter) “The right to swing my fist ends where the other man’s nose begins.” This idea, however, is as old as common law itself and to the extent is considered a legal maxim in dealing with matters of rights.
“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.”
Then you are simply factually wrong and self-contradictory. Your rights don’t trump the rights of others automatically simply because they are yours. Your rights have limits. If you doubt this, I invite you to test the limits of your free speech rights by finding the nearest crowded venue and yelling “FIRE!”.
“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.”
Socialism is the mid-ground between laissez-faire capitalism and Communism. Speaking for myself although I’d think Tony would agree, it is preferable to either extreme system as both result in tyranny. Laissez-faire capitalism ends in economic tyranny (and stupid ideas like equal sufferage) and Communism ends in statist tyranny (which individuals have no rights and an inflexible non-functional command economy).
“It is curious to me that you say Communism is unconstitutional, but you also claim that the Constitution does not protect property rights.”
Learn to read. I said the Constitution has limited protections that affect property, namely of due process and just compensation, but that the right to own property originates in the common law.
“What is your basis for declaring Communism unconstitutional if not based upon the right an individual has to own property?”
Because property is recognized in the common law and does enjoy very limited protections in the Constitution. That doesn’t de facto make it the sacrosanct fundamental natural right you incorrectly claim it to be.
“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.”
But he was fine with that social gifting. “A right of property in moveable things is admitted before the establishment of government. A separate property in lands, not till after that establishment. The right to moveables is acknowledged by all the hordes of Indians surrounding us. Yet by no one of them has a separate property in lands been yielded to individuals. He who plants a field keeps possession till he has gathered the produce, after which one has as good a right as another to occupy it. Government must be established and laws provided, before lands can be separately appropriated, and their owner protected in his possession. Till then, the property is in the body of the nation, and they, or their chief as trustee, must grant them to individuals, and determine the conditions of the grant.” –Thomas Jefferson: Batture at New Orleans, 1812. “Our wish… is that… equality of rights [be] maintained, and that state of property, equal or unequal, which results to every man from his own industry or that of his fathers.” –Thomas Jefferson: 2nd Inaugural Address, 1805.
“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.”
That’s fine, because I just proved you wrong above using Jefferson’s own words.
“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.”
No. I didn’t miss it. You just didn’t understand what you were reading.
(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.”
I understand their meanings perfectly. I also understand that time and again you have shown you don’t have a clue as to how natural law formulations apply to American jurisprudence. You were wrong before. You’re wrong now.
“Also, read it with the mindset that Jefferson does not believe in the natural right of people inheriting property from their ancestors.”
Now why would I do that when the cite above clearly shows Jefferson had no problem with succession?
“I can provide more support for this from other writings of his if I need to at another time.”
Then get to it or quit wasting my 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:
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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.
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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.”
That was a lot of words to say nothing of substance.
“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.”
Maybe because you’re ignoring the language of the Constitution as it was ratified.
“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.”
And yet that sacred right was not afforded special protection under the Constitution as ratified other than the aforementioned minimal protections of due process and just compensation for takings.
“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.”
Their views (no matter how poorly you understand them) are irrelevant to the law as provided by the final document.
“I am not too stupid to realize that there is some debate about this in common law.”
Apparently you are.
“I just think you misrepresent the debate.”
Not in the slightest. I’m arguing from what the law is whereas you are arguing from what you think the law should be. That’s the Is/Ought Fallacy writ large.
“Our court system has been sliding in your direction rather than my direction, but I do not think that is a good thing.”
That just goes to show you how little you understand jurisprudence and the direction they are moving on property rights. You’d know that statement was bullshit if you understood the full implications of Buckley v. Valeo.
“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.”
Speaking of misrepresentations, that was a spectacular one.
“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.”
Again, see the Is/Ought Fallacy.
“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.”
Because naturally, a biology major who sells computer software and is a notorious cherry picker understands what the law actually is better than a lawyer.
This is how this works. I am a subject matter expert. My expertise is law and jurisprudence. Your opinion of my understanding as afforded you by being a layman means absolutely nothing to me. If Mark or Larry or Mike A. or JT or Vince or AY or Porkchop or any of the other known lawyers were to express an opinion? It might (might) mean something to me. You? I don’t give a rat’s ass what you think of my understanding. To be clear, as an expert, I think you don’t know what you are talking about in any sort of meaningful context vis a vis American law and jurisprudence or any of its philosophical and technical underpinnings.
Now carry on thinking that I should somehow value your appraisal of my acumen at my trained profession should mean or means more to me that the appraisal of the guy who changes the oil in my car.
It’s funny.
Gene H wrote: “…not all natural rights are protected Constitutional rights.”
What natural right is not a protected Constitutional right?
I agree that the Constitution does not enumerate them all, but doesn’t the Ninth Amendment protect all rights not enumerated within the Constitution?
DavidM wrote: ““What is your basis for declaring Communism unconstitutional if not based upon the right an individual has to own property?”
Gene H responded: “Because property is recognized in the common law and does enjoy very limited protections in the Constitution. That doesn’t de facto make it the sacrosanct fundamental natural right you incorrectly claim it to be.”
I find your response inadequate because your language was “unconstitutional” rather than “illegal based upon common law.” I say Communism is unconstitutional because the Fifth Amendment of the Constitution protects an individual’s right to property by saying that no person may be deprived of property without …”. Communism says that property is owned by all and is under the control of government for the common good of all. In contrast, you claim that property rights are not found in the Constitution. As for the concept that the right to own property a “natural right,” I don’t see where the constitution has much to do with that argument, so it pettifogs the issue by erroneously suggesting that I made such a claim. The argument of property being a fundamental natural right is found in the writings of John Locke and writings of later pundits like Thomas Jefferson.
It seems to me that you either have to admit that the Constitution does recognize the right of individuals to own property, or that Communism is not unconstitutional. To hold onto both concepts presents an illogical conundrum.
DavidM wrote: “He [Thomas Jefferson] 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 quoted Jefferson:
“A right of property in moveable things is admitted before the establishment of government. A separate property in lands, not till after that establishment. The right to moveables is acknowledged by all the hordes of Indians surrounding us. Yet by no one of them has a separate property in lands been yielded to individuals. He who plants a field keeps possession till he has gathered the produce, after which one has as good a right as another to occupy it. Government must be established and laws provided, before lands can be separately appropriated, and their owner protected in his possession. Till then, the property is in the body of the nation, and they, or their chief as trustee, must grant them to individuals, and determine the conditions of the grant.” –Thomas Jefferson: Batture at New Orleans, 1812. “Our wish… is that… equality of rights [be] maintained, and that state of property, equal or unequal, which results to every man from his own industry or that of his fathers.” –Thomas Jefferson: 2nd Inaugural Address, 1805.”
Gene H follows up this quote with: “… I just proved you wrong above using Jefferson’s own words.”
I’m not sure what you think you proved with these words of Jefferson, but it was not to prove that Jefferson did not make a distinction between the natural right of a person to own property and the civil right by positive law for a person to inherit property. Following is from a letter to Madison dated Sept. 6, 1789:
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I set out on this ground which I suppose to be self evident, “that the earth belongs in usufruct to the living;” that the dead have neither powers nor rights over it. The portion occupied by an individual ceases to be his when himself ceases to be, and reverts to the society. If the society has formed no rules for the appropriation of its lands in severalty, it will be taken by the first occupants. These will generally be the wife and children of the decedent. If they have formed rules of appropriation, those rules may give it to the wife and children, or to some one of them, or to the legatee of the deceased. So they may give it to his creditor. But the child, the legatee or creditor takes it, not by any natural right, but by a law of the society of which they are members, and to which they are subject. Then no man can by natural right oblige the lands he occupied, or the persons who succeed him in that occupation, to the paiment of debts contracted by him. For if he could, he might during his own life, eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to the living, which would be reverse of our principle. What is true of every member of the society individually, is true of them all collectively, since the rights of the whole can be no more than the sum of the rights of individuals.
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http://www.let.rug.nl/usa/presidents/thomas-jefferson/letters-of-thomas-jefferson/jefl81.php
The distinction between a natural right and a societal right is not just semantics. It is important in legal theory because a natural right may not be taken away by government. It is considered inalienable. Natural rights are a yardstick to measure when government oversteps its rights and becomes tyrannical and deserving of rebellion by its citizens. In contrast, a societal right is just whatever the government decides what it will be.
DavidM:
interesting stuff.
DavidM,
“Where your prejudice comes in is that after I acknowledge your point and explain how the mistake happened, you still claim that I purposefully constructed a sentence to deceive everyone.”
You mean how you acknowledged my point here, with these words:
“Yes, I see your point. Some people may drop off of benefits. The point [meaning your point] is still the same . . .”
Don’t let these rough drafts get to onerous for you now!
DavidM: So our life experiences are different in that I found a way without government assistance,
Except you did not, because the government assisted you all along the way.
I was on my own at 16, I worked 30-40 hours a week in order to attend the high school of my choice, paying rent, buying my own food, and attending school full time. Not only was I self-sufficient, I sent a percentage of my pay to my parents and family (in another state).
I took no benefits. Unlike you, however, I recognize that without the public school system, without public transportation (even though I usually used a bicycle), and without all the infrastructure of my environment (including roads, police, and the minimum wage requirement) I would not have been able to do even what I did.
I joined the Military out of high school, for the GI Bill. I do not regard that as government assistance, I regard it as a component of my compensation for risking my life for my country. (which was a real risk, in the event of nuclear war I would have had the privilege of being vaporized in the first 30 seconds.)
As I outlined earlier, about 90% of what you earn would not be earned without relying on the infrastructure built by others and taxation. Your “self sufficiency” is an illusion of runaway egoism and self-centeredness.
Tony C wrote: “As I outlined earlier, about 90% of what you earn would not be earned without relying on the infrastructure built by others and taxation. Your “self sufficiency” is an illusion of runaway egoism and self-centeredness.”
I’m not sure where you get the 90% figure, but I readily acknowledge benefit from government, from public schools, to roads, to many other things in life. There also is a lot of benefit from private individuals and private companies throughout my life. However, what we are talking about here is the concept of massive government and the degree with which government should own the means of production and redistribute wealth. I am concerned with the concept of when government starts to become oppressive by operating on the side of plunder by the majority.
Do you even acknowledge that government can become oppressive by high taxation? Is that even a possibility in your mind?
Our government actually has a 100% taxation for some people who inherit from their grandparents. Is that oppressive at all in your way of thinking?
Do you recognize that communist countries trend toward capitalism because of the poverty those systems create?
Do you recognize that socialism is a mixed form of communism and capitalism?
“Your understanding is compartementalized, you cannot understand something in isolation from the whole. This is something you do with gusto.”
Well done, Bron Rove.
Your lack of contextual understanding, integration and synthesis is a thing of legendary proportions around here and on display nearly every day despite perpetual and manifest Sisyphean efforts by others to educate you. However, whenever shown facts that don’t play in to the massive confirmation bias your binary thinking and Objectivism create, your Randian dogma usually runs off into traffic with you merrily playing along right behind it.
But you can try to avoid the matter of your incomplete understanding by smearing me (or Tony or anyone else who challenges your myopic selfish and greedy worldview) with your faults all you like. That is something you regularly do with gusto.
And I think it’s funny, Karl.
Denial is a powerful force in the human mind and plays a role in survival, however, when it runs amok, it’s often to comic or tragic extremes – often both at the same time.
Deny it all you want, but the facts are that the Framers and Founders didn’t embrace Locke’s view of property to the extent that they made it a well defined and specially protected right covered by the Bill of Rights although they did incorporate his happiness language into the DOI (which I remind you again is not controlling law) and Locke’s conception of happiness as defined by his direct writings is considerably more subtle than “happiness is property”. In fact, if you’d actually read and understood Locke, you’d know that he was for eschewing some forms of happiness (which his definition is closer to the Pleasure Principle than just about anything else except perhaps the Epicureans) for the benefits to self and society that leading a moral life bypassing certain personal pleasures could provide (although it works just fine if you substitute ethics for morals despite his framing the discussion in terms of Christian theology).
DavidM,
Sure you did — you sent more data to backtrack from your original source which did not support what you claimed!
If you think that someone reading your words, finding fault between your representation of the data and the data itself, and then pointing it out to be “emotional” and “prejudicial” then I guess you’re the only rational non-partisan thinker here.
gbk wrote: “Sure you did — you sent more data to backtrack from your original source which did not support what you claimed!”
That was not backtracking. I could send you ten sources of data, and they all pretty much show the same trend, that our citizens are becoming more reliant on government benefits. You are hung up over the minutia of whether it is 49.1% or 55%. It doesn’t matter, but for whatever reason, you have lost sight of the forest by looking at the mushroom growing on the floor of the forest.
gbk wrote: “If you think that someone reading your words, finding fault between your representation of the data and the data itself, and then pointing it out to be “emotional” and “prejudicial” then I guess you’re the only rational non-partisan thinker here.”
No, I’m not thinking that at all. What you did there was great. It was the one thing you did that was logical and good, which is why I accepted your statement as a good point. If this were a paper for publication, I would take your criticism and address it, modifying the paper to represent properly the data. Where your prejudice comes in is that after I acknowledge your point and explain how the mistake happened, you still claim that I purposefully constructed a sentence to deceive everyone. You claim that before I submitted my post, that I knew there was a logical problem between the tense of the verb I used in my post and the actual question on the survey. The truth is that I did not realize that until you pointed it out. It was a blind spot and it happens a lot in rough drafts, which is what all these comments are.
WordPress swallowed my reply to john530. Could a moderator release it please?
Bron,
“I havent read the book but I think it fair to say that if she is speaking about the last 35 years, it is wrong to blame it on capitalism.”
How do you know this if you haven’t read the book? Quit your faulty conjectures about a book you haven’t read.
“I am against what has been going on for the last 40-50 years but I do not attribute it to capitalism, I attribute it to neoconservative philosophy which is, as near as I can figure, a mixture of fascism and socialism or maybe paternalism at best.”
Wrong again, it’s not neoconservative philosophy that Klein discusses, it’s neoliberal trade and financial policies. Big difference between the two, and I also remember us having this discussion years ago.
Lean the difference between the “neos,” read Klein’s book, then critique it.
DavidM,
“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’s no emotion there David. I read your words — that when pointed out to you — you backtracked from. I don’t believe your original misrepresentation of the Atlantic link you provided was as mistake.
That’s not emotion, that’s reaching a conclusion based on what wrote and then tried to recover from.
gbk wrote: “That’s not emotion, that’s reaching a conclusion based on what wrote and then tried to recover from.”
Except that I did not try to recover from it. I agreed with your point. That’s when your prejudice kicked in.
gbk:
I did say if. I havent read the book but I think it fair to say that if she is speaking about the last 35 years, it is wrong to blame it on capitalism.
I am against what has been going on for the last 40-50 years but I do not attribute it to capitalism, I attribute it to neoconservative philosophy which is, as near as I can figure, a mixture of fascism and socialism or maybe paternalism at best.
Leo Strauss is not my friend and neither are his myrmidons.