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.
Conflation.
Your body and your mind are the only actual property anyone has without a society and a government to enforce your claims in the face of those who would take your property by force.
I said: diminishes the value of both property rights and life, because the common ground is rather small.
To clarify, just like the common attributes of apples and pomegranates tells us very little of practical use about apples and pomegranates. Plus, using the common attributes as a classification will include a plethora of plants and fruits that are unlike either apples or pomegranates; such as almonds or strawberries. I think a similar effect happens when one attempts to classify both life and lamps as two forms of property; so much falls under such a broad classifier that the meaning of the word “property” loses too much meaning. It becomes less useful as an appellation because it is no longer very well correlated with what Rights one can exercise with regard to the property.
Gene: not to imply Tony is a serial killer or doesn’t know how to use a hammer.
Hey, lots of people have hobbies….
Gene H:
Apparently I do as it is implied in my statement.
Gene H:
I was only saying that you have used that rhetorical device against me.
I dont mind, well I did at first but then I figured out what you were doing and just took it as part of the “game”.
I am sorry to hear that, I am a real woosy when I get sick. I load up on Nyquil, theraflu, vicks, anything that makes me feel better.
Maybe you should try this redneck remedy: Mix 4-6 oz of your favorite whiskey with the juice of 2 lemons and a teaspoon of sugar. Drink quickly and go to sleep under an electric blanket on high, make sure you drink about a quart of water before you get under the blanket.
When you wake up, according to the guy who told me this, you should feel pretty good.
DavidM: The premise in natural law or the state of nature that a person is their own property reduces a person to …. property.
I reject that premise for several reasons. Property has a price; I do not think people have a price. Property can be destroyed or traded, or taken by the people for the common good, I do not think people fall into that category.
I do not think a life is equivalent to a property in almost any respect; in my view human grief and misery and desperation cannot be translated into dollars or acres of land or bags of flour. For an extreme example, in my view no amount of money would ever justify the torture and murder of an innocent person, such as a five year old child.
In my view, human life and emotions exist in their own market exclusively of “property” and material things; the only reason to sacrifice human life (as in war) is to protect human life and prevent human misery. In my ideals, no amount of profit justifies the murder of innocents, no amount of profit warrants the infliction of human grief and misery on innocents, and no amount of profit warrants the exploitation of desperation.
To me, property can always be priced in terms of other properties. Even intangible property, like intellectual property or trade secrets.
I do not regard persons as property, even of themselves, because I think people are worth more than anything the typical person thinks of as property, and lives, misery, grief and desperation should never have a price tag attached to them.
This does not mean I disagree with the idea of choice, or selling one’s time or services or labor. I don’t even mind if people voluntarily (with real choice and absent all coercion) take reasonable and fully-informed risks of their lives for money; stunt men, high wire acts without a net, boxing, skiing, skydiving and such are theirs to take. One can be entitled to use one’s life as they see fit without calling their life “property” and trying to apply the rules of property ownership to a life. That is just a self-evident (to me) and equitable rule of existence. A similarity of control of property does not demand equating life to property; just like a similarity between apples and pomegranates does not demand classifying pomegranates as a special form of apple (“Pomegranate” means “Apple of Grenada”, but they are not actually related to apples at all; they are in completely different plant families).
Trying to crowbar people’s self-determination into some kind of property right, again in my view and arguing de novo, diminishes the value of both property rights and life, because the common ground is rather small.
Thanks to Gene I will henceforth attempt to use Natural Rights in the sense of Finnis; as self-evidently equitable principles: You have a natural right to self-determination; restricted to an extent by your mutual obligations with society (not violating the rights of others and contributing to the prosecution of those that do violate such rights). I do not think, however, that warrants equating you to being any form of property. The natural rights you have over your life, time, labor and mental activity do not have to correspond exactly to any rights you have over property, or vice versa. Like pomegranates and apples, similarity of form does not imply an underlying equality or identity.
Tony C wrote: “I reject that premise for several reasons. Property has a price; I do not think people have a price. Property can be destroyed or traded, or taken by the people for the common good, I do not think people fall into that category.”
I don’t know if you realize it, but you are responding to something Gene H said as if it was something that I said. Gene H was the one who brought up that a person’s body is his own property. I don’t disagree with that, but my primary focus has been upon private ownership of property other than the body. Locke points out how indentured servants trade their body and liberty to a master for a price for a set period of time. That was considered fine in times past, but has pretty much become unknown in modern Western civilization. So while you say that people don’t have a price, that comes from your experience rather than history. Nevertheless, property does not always have a price. We put a price on property for the purpose of relinquishing our rights to our property in a way that we get compensated. Property generally derives its value from the labor involved in developing a resource into property. Your home, therefore, being a product of more labor than your computer, has a higher value put upon it. Even so, sometimes we have property to which we refuse to assign a price. It is considered priceless and not for sale. I don’t think you can use price to argue that there is no relationship between property and rights. The focus of private ownership of property is simply that something is under one’s control to use and direct as that individual sees fit. This equates to his ability to have liberty and freedom to pursue his dreams and aspirations, to realize his self-determination in a real way in the real world.
Tony C wrote: “Thanks to Gene I will henceforth attempt to use Natural Rights in the sense of Finnis; as self-evidently equitable principles: You have a natural right to self-determination; restricted to an extent by your mutual obligations with society (not violating the rights of others and contributing to the prosecution of those that do violate such rights). I do not think, however, that warrants equating you to being any form of property. The natural rights you have over your life, time, labor and mental activity do not have to correspond exactly to any rights you have over property, or vice versa. Like pomegranates and apples, similarity of form does not imply an underlying equality or identity.”
I was the one who first in this forum to bring up John Finnis in regards to Natural Right Theory, but because Gene mentions him, you apparently feel free to misunderstand him and pretend that self-evident applies only to society majority vote rather than to the individual. Natural right theory only makes sense when talking about the individual.
You say that I have a natural right to self-determination, and that is very true, but for whatever reason, you think private ownership of property has nothing to do with that. It seems as if you think people should remain children, trading their parents for government. A child is under the will of his family head, not having any right toward self-determination or private ownership of anything. When the child reaches full age, his powers of rational thinking enable him to become self-determinate. He is to come out from under the will of his family head, and pursue his own interests. Fascism says no, he is to determine the interests of society… the interests of the State. You seem to be saying something similar, that the only rights he has are the ones that the State allows him to have. You admit the right of private ownership, but not because of principles of liberty and freedom, but because of principles of a society that might allow the individual to do things that are of no consequence to the society as a whole.
My argument is that freedom and liberty is derived in the concept of private ownership of private property. If the property is owned by the collective, or even by someone else, how can I truly follow a path of self-determinism? If what I have in my power to use might be taken away at any moment, I cannot plan to do anything. I have ownership in my car so I can count on the fact that it is there when I need it. I have ownership in my computer for the same reason. I have ownership in my home so that I have a stable place to raise my family. It is my ownership rights in property that allows me to plan and do things in a manner of building up the equity of labor. This is what allowed America to grow so prosperously, because it had cast off the shackles of oppressive government. At the time of the Revolution, property here was not nearly as valued as property in England. Labor had not yet valued it, but after the Revolution as time and labor had its effect, the individuals engaged in it prospered. Private ownership allows these individuals to reap the fruit of their own labors. At the same time, government grew not because more government was needed, but because greedy men in government wanted to cash in on the labors of others. So they invent social programs that are supposedly altruistic, for the good of society, when in actuality, they just move resources under the control of those who operate government. As they were successful in doing this, more greedy men sought positions in government, not because of their desire for public service, but because of their desire to control and possess the labors of others. It is, in effect, legal plunder. Just two generations ago our government invented a federal income tax that has become far more oppressive than any tax system under which the original American colonies operated. People today acclimate to it like a live frog in a pot of water whose temperature is raised slowly. They just don’t know much better.
I don’t know why you cannot see it, but government rules and regulations that limit private ownership of property are limiting freedom and liberty of individuals to plan and execute their own path in life. I don’t deny that they also have a duty and obligation to society as a whole, but for the most part such is voluntary except when it becomes criminal. For government to take away private ownership, they take away the ability of individuals to be virtuous and to give to society. They attempt to make society virtuous as a whole, but as history has shown time and again, such attempts always fail. The systems collapse, because ultimately, responsibility rests with the individual and his liberties and his powers of self-determination, and his power to be virtuous.
Bron,
Don’t you know that happiness is purely subjective?
Bron,
Actually, no. On top of just being swamped (the trifecta of work, family and holidays), I’ve been fighting a head cold for a solid week now. Thanks for asking. Buy stock in the makers of Ny-Quil.
However, you were indeed playing the guilt by association card and a device is not an argument proper, merely a tool. A master carpenter and a serial killer may both use a hammer but to distinctly different ends (not to imply Tony is a serial killer or doesn’t know how to use a hammer).
DavidM:
Dont you know that true happiness, for many, eminates from the barrel of a gun pointed at those who pay taxes for the purpose of supporting those who wont work?
Gene H:
“And I’ve never suggested people are property so I’ll thank you in advance for keeping your words out of my mouth, Bron. But then again, straw men are what you do so well because you really can’t argue very well.”
I am pretty sure I never did say you suggested people were property. Tony C said David M thought people were property.
I was responding to DavidM when he asked Tony if he read his [David M’s] posts.
I was also saying that you sometimes use such a rhetorical device. Not that you say people are property.
A+B = C, which can be 2+2 = 4 or 3+4 = 7. I was just saying that Tony C was using a certain method and I used a particular example to explain his method, I then went on to say you sometimes employ that same method.
I was using a principle with an explicit example. I then said you use the same principle, not that you had used the same example.
Maybe you dont think I argue so well because you dont understand so well?
Honestly, if you were just some random guy who I had never read before, I would think you were stupid for making a comment like that.
Are you OK? Had a bad week? I hope you are doing well.
Also, I’ve previously pointed out that Locke’s understanding of “happiness” wasn’t as dumb simple as “happiness is property”.
I think I’ll take my own legal scholarly understanding over that of an English professor. And I have indeed read Bentham. And Rousseau, Locke, Hobbes, Mill, and J.S. Mill among many others. However, if any prime vector must be placed for my understanding of both utilitarianism and social compact theory, it rests more with Rousseau, Hobbes and J.S. Mill rather than Bentham. Unlike some people though, I both understand what I read discretely and in a wider context. Bentham was largely engaged in a fool’s errand. He sought to codify common law in a manner similar to civil (Roman) codification. The very structure of common law which relies so heavily upon precedent resists this effort. And while common law and civil law both have their own unique benefits and deficits, they are inherently different approaches to legalism.
DavidM: It is important in legal theory because a natural right may not be taken away by government. It is considered inalienable.
By whom? Why should 120 million adults in this country be subordinate to some dictatorial pronouncement by Jefferson, Locke, or anybody else on what constitutes a “natural right” and what does not? By what logic do you claim this one microscopic droplet of humanity, a few dozen people a few hundred years ago, have the right to control the living these centuries later?
I will answer that myself, there is no such justification. The living must agree with the reasoning of the dead and choose to adopt their pronouncements. The dead must convince us, on our terms, and the only way they could do that (or that we can convince our future generations) is by appealing to mental processes they can reliably count on persisting throughout the generations. That includes both emotions and reasoning.
Only people, collectively, can deem a Right inalienable. Natural Rights do not exist without the consent and agreement of the people. Using the Finnis interpretation that Gene mentioned, a Natural Right must be derived from self-evident principles: But self-evident to whom?
Obviously, to the living, and equally obviously, to a super-majority of the living unlikely to be reversed within (say) a generation (by the inclusion of new members, attrition of existing members, or argumentation from science or emotion or enlightenment).
Natural Rights are a persistent subset of Societal Rights; both must be agreed upon by the living. The Founders apparently understood this or something with an equivalent outcome; that is why their Constitution allows Amendment without restriction.
DavidM says: Natural rights are a yardstick to measure when government oversteps its rights and becomes tyrannical and deserving of rebellion by its citizens.
Only the natural rights agreed upon by a super-majority of the citizens. To the extent those people control their government, their government will be naturally responsive to their view. To the extent a super-majority does NOT control their government, their government is (in my view) a criminal enterprise engaged in exploitive coercion.
Whether a tyrannical government is deserving of rebellion is up to the citizens. Somebody would have to start such a rebellion, and like the Founding Fathers deem it worth their life to do so, and then it would be up to the citizens to rally behind them or not. As it stands, most citizens do not think it worth their life to rebel, and the government would have to become far more tyrannical before they felt enough anger and pain (metaphorical or otherwise) to risk their lives and fortunes in rebellion.
If anybody wants a rebellion, then like the Founding Fathers, they must put their head in the noose first, and hope others will follow. We have seen some of that, recently (hat tips to Julian, Bradley, and Edward).
Trying to talk others into risking their life for your benefit while you cheer them on from the stands is just a selfish belief that your prosperity is more important than the lives of others. The founders believed the opposite, that the prosperity of others was more important than their lives.
DavidM says: In contrast, a societal right is just whatever the government decides what it will be.
If the government is controlled by Majority rule, then societal Rights granted by a Majority (but not a super-majority) are granted by the people, the government is just their servant carrying out their orders. A good cop (following the law) does not grant you Rights, their job is to enforce the will of the people that set the laws. Blaming the cop for the will of the people is misdirected; your beef is not with the government, it is with the super-majority of society that disagrees with you (and to an extent Locke) on what exactly constitutes an inalienable Right.
“They allowed for property to be taken for roads or bridges or a canal, etc. but to just take it because the government wants it so it can redistribute the land to 10,000 other people? I hardly think Madison or Jefferson would be on board for that.”
Abuses of the Commerce Clause are a different issue that do not change that property rights do not have the sacrosanct protections you’d prefer, Mr. Is/Ought.
And I’ve never suggested people are property so I’ll thank you in advance for keeping your words out of my mouth, Bron. But then again, straw men are what you do so well because you really can’t argue very well.
DavidM:
Oh, he is responding to your posts. It is just a rhetorical trick.
If you think people are property, then you are a dirty slave holder. Never mind that you are for individual rights. He is trying to diminish the idea of individual rights by saying you believe in people as property. And the reader then equates what you are saying with the ideas of someone who thinks people are property. So he is trying to negate the idea of individual rights by linking you to the idea of people as property.
It is what Gene H does as well, although he is far superior to Tony C in its implementation, more subtle; I guess because of his legal training.
Gene H:
“And Jefferson and Madison were both smart enough to have specifically protected that right in the Constitution if they had thought is of sufficient import over other liberty interests.”
I am guessing there is more to this than what you are saying, or maybe even know.
How could men who were promoting individual liberty not protect property? Something doesnt make sense. Since these men were property owners, why would they willingly give up the right to the use/ownership of their property?
They allowed for property to be taken for roads or bridges or a canal, etc. but to just take it because the government wants it so it can redistribute the land to 10,000 other people? I hardly think Madison or Jefferson would be on board for that.
You cannot look at the documents of our founding in any other context but the protection of individual rights. You seem to think they are some sort of ala carte menu of concepts with no unifying whole.
But I suppose that makes sense given your belief in utilitarianism and pragmatism.
And I’m not sure you have good reading comprehension, David.
“It is important in legal theory because a natural right may not be taken away by government.”
“Taken” is not the same thing as “curtailed”. Liberty under the social compact theory of government is a balancing act of your rights versus the rights of others and the societal good. Always has been. Always will be.
However, you miss the point entirely. The Constitution is the core of all of our laws. Property rights originate in English Common Law. That the Constitution recognizes the right to property to a limited degree (but does not list it as a specifically protected right natural or otherwise) does mean that any economic system that doesn’t recognize property rights at all such as Communism would be de facto unconstitutional and against the common law tradition.
Twist all you like.
The right to property is not a protected fundamental right under American jurisprudence.
That’s simply a fact.
And Jefferson and Madison were both smart enough to have specifically protected that right in the Constitution if they had thought is of sufficient import over other liberty interests.
They didn’t.
Deal with it.
Also, don’t talk about Jefferson discussing civil law theory when our property laws are based in common law (with the exception of Louisiana). There is no usufruct recognized at common law and Jefferson was using that word in a specialized way. What Jefferson was talking about there in common law is dealt with by the Rule Against Perpetuities that places a time limit on vesting of future interests such as contingent remainders and exclusionary interests running with property.
You’d know this if you were a real lawyer and not just playing at being one on the Internet.
hskiprob says: We must agree on a set of rules.
And how, precisely, do you propose that 120 million adults in this country do that?
Please, give me ONE rule that you think all 120 million adults will agree to without reservation.
I will wager right now there are men in prison that think murder should be legal. Shall we expand the pool to all adults on the planet? Many an Islamic father believes they have an inalienable right to murder their children to protect their own honor.
If we cannot agree that murder shall be outlawed, we will not agree on anything less than murder, either.
Without majority rule, the result is no law at all. What we can all agree upon is precisely nothing.
Gene: John Finnis’ interpretation of natural law: natural law and natural rights are derived from self-evident principles, not from speculation or fact.
Well, that at least is an interpretation I can stand behind.
Have fun Gene.